[Federal Register Volume 72, Number 47 (Monday, March 12, 2007)]
[Notices]
[Pages 11092-11198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3960]
[[Page 11091]]
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Part II
Department of Defense
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Department of the Army, Corps of Engineers
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Reissuance of Nationwide Permits; Notice
Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 /
Notices
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
[ZRIN 0710-ZA02]
Reissuance of Nationwide Permits
AGENCY: Army Corps of Engineers, DoD.
ACTION: Final notice.
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SUMMARY: The U.S. Army Corps of Engineers (Corps) is reissuing all
existing nationwide permits (NWPs), general conditions, and
definitions, with some modifications. The Corps is also issuing six new
NWPs, two new general conditions, and 13 new definitions. The effective
date for the new and reissued NWPs will be March 19, 2007. These NWPs
will expire on March 18, 2012. The NWPs will protect the aquatic
environment and the public interest while effectively authorizing
activities that have minimal individual and cumulative adverse effects
on the aquatic environment.
DATES: The NWPs and general conditions will become effective on March
19, 2007.
ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO, 441 G Street
NW., Washington, DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by
e-mail at [email protected] 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
In the September 26, 2006, issue of the Federal Register (71 FR
56258), the U.S. Army Corps of Engineers (Corps) published its proposal
to reissue 43 existing nationwide permits (NWPs) and issue six new
NWPs. The Corps also proposed to reissue its general conditions and add
one new general condition.
The Corps proposal is intended to simplify the NWP program while
continuing to provide environmental protection, by ensuring that the
NWPs authorize only those activities that have minimal individual and
cumulative adverse effects on the aquatic environment and satisfy other
public interest factors.
As a result of the comments received in response to the September
26, 2006, proposal, we have made a number of changes to the NWPs,
general conditions, and definitions to further clarify the permits,
facilitate their administration, and strengthen environmental
protection. These changes are discussed in the preamble.
The Corps is reissuing the 43 existing NWPs, issuing six new NWPs,
reissuing 26 existing general conditions, and issuing one new general
condition. The Corps is also reissuing many of the NWP definitions, and
providing 13 new definitions. The effective date for these NWPs,
general conditions, and definitions is March 19, 2007. These NWPs,
general conditions, and definitions expire on March 18, 2012.
While the Administrative Procedure Act requires a substantive rule
to be published in the Federal Register at least 30 days before its
effective date, exceptions to this requirement can be made for good
cause (5 U.S.C. 553(d)(3)). We are utilizing this good cause exception
to reduce hardships on the regulated public.
Grandfather Provision for Expiring NWPs
In accordance with 33 CFR 330.6(b), activities authorized by the
current NWPs issued on January 15, 2002, that have commenced or are
under contract to commence by March 18, 2007, will have until March 18,
2008, to complete the activity under the terms and conditions of the
current NWPs.
Clean Water Act Section 401 Water Quality Certifications (WQC) and
Coastal Zone Management Act (CZMA) Consistency Determinations
In the September 26, 2006, Federal Register notice and concurrent
with letters from Corps Districts to the appropriate state agencies,
the Corps requested initial 401 certifications and CZM consistency
determinations. This began the Clean Water Act section 401 water
quality certification (WQC) and Coastal Zone Management Act (CZMA)
consistency determination processes.
Today's Federal Register notice begins the 60-day period for
states, Indian Tribes, and EPA to complete their WQC process for the
NWPs. This Federal Register notice also provides a 60-day period for
coastal states to complete their CZMA consistency determination
processes. This 60-day period will end on May 11, 2007.
While the states, Indian Tribes, and EPA complete their WQC
processes and the states complete their CZMA consistency determination
processes, the use of an NWP to authorize a discharge into waters of
the United States is contingent upon obtaining individual water quality
certification or a case-specific WQC waiver. Likewise, the use of an
NWP to authorize an activity within, or outside, a state's coastal zone
that will affect land or water uses or natural resources of that
state's coastal zone, is contingent upon obtaining an individual CZMA
consistency determination, or a case-specific presumption of CZMA
concurrence. We are taking this approach to reduce the hardships on the
regulated public that would be caused by a substantial gap in NWP
coverage if we were to wait 60 days before these NWPs would become
effective.
After the 60-day period, the latest version of any written position
take by a state, Indian tribe, or EPA on its WQC for any of the NWPs
will be accepted as the state's final position on those NWPs. If the
state, Indian tribe, or EPA takes no action by May 11, 2007, WQC will
be considered waived for those NWPs.
After the 60-day period, the latest version of any written position
take by a state on its CZMA consistency determination for any of the
NWPs will be accepted as the state's final position on those NWPs. If
the state takes no action by May 11, 2007, CZMA concurrence will be
presumed for those NWPs.
Discussion of Public Comments
I. Overview
In response to the September 26, 2006, Federal Register notice, we
received more than 22,500 comments. We reviewed and fully considered
all comments received in response to that notice.
General Comments
Many commenters provided general support for the proposal, and some
of them stated that the changes are a step forward in improving
consistency in the NWP program. Some commenters said that the proposed
NWPs provide a balance between environmental protection and allowing
development to occur. One commenter said that the NWP program provides
sufficient environmental protection, through its general conditions and
the ability for the district engineer to exercise discretionary
authority to require individual permits. Several commenters stated that
the proposed NWPs are simpler, clearer, and easier to understand. Three
commenters said that further streamlining is necessary. One commenter
recommended adopting a standard numbering system for paragraphs and
subparagraphs within the NWP text. Three commenters said that the Corps
should retain appropriate references to general conditions in the text
of NWPs, for purpose of clarification.
To the extent that it is feasible, we have adopted a standard
format for the
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NWPs. Some NWPs require different formats, to make them easier to read
and provide further clarification. For the most part, it is not
necessary to retain references to general conditions in the text of the
NWPs, except for general condition 27, Pre-Construction Notification,
because most general conditions apply to all NWPs.
In contrast, a few commenters said that the proposed NWPs are not
simpler and clearer. Three commenters declared that the proposed NWPs
are more like individual permits than general permits. A number of
commenters asserted that the proposed NWPs will significantly increase
costs and delays for permit applicants. Four commenters said that the
attempt at clarification and simplicity will reduce the flexibility of
the NWP program.
The NWPs issued today are not similar to individual permits. The
NWPs provide a streamlined form of Department of the Army authorization
for those activities that result in minimal individual and cumulative
adverse effects on the aquatic environment and satisfy other public
interest review factors. In 2003, the average processing time for NWPs
was 27 days and for individual permits it was 144 days. In response to
comments received as a result of the September 26, 2006, Federal
Register notice, we have modified some of the proposed NWPs to address
provisions that could have unnecessary negative effects on regulatory
efficiency and environmental protection.
Other commenters expressed general opposition to the proposal, and
said that the proposal weakens protection for waters and should be
withdrawn. Many of these commenters objected to the goals of
``streamlining'' or ``improving regulatory efficiency,'' stating that
the focus of the NWPs should be on compliance with the Clean Water Act.
Some commenters expressed opposition to the issuance of the NWPs, and
said that activities proposed for NWP authorization should be
individually subjected to a public notice and comment process. One
commenter suggested that pre-construction notifications should be
posted on district web sites for at least 30 days before an NWP
verification is issued, to allow for public comment on those proposed
activities.
The NWPs issued today comply with the requirements of the Clean
Water Act. When the Clean Water Act was amended in 1977, Congress
recognized the importance of general permits for the effective and
efficient implementation of section 404. We do not agree that pre-
construction notifications should be posted on the Internet for a
public comment period. The review of pre-construction notifications by
district engineers is sufficient for effective environmental
protection. Some NWP activities require coordination with other Federal
and/or State agencies, which provides a supplemental level of
environmental protection. The activities authorized by NWPs have
minimal adverse effects and are limited, within each permit, to
narrowly defined categories of similar activities. Notice and
opportunity for public comment on the authorization of these activities
through NWPs is provided as part of the NWP promulgation process. The
Corps believes this is the appropriate level of public notice and
comment for these types of activities. Further, when reviewing pre-
construction notifications, district engineers will exercise
discretionary authority to require individual permits for those
activities that they determine may result in more than minimal adverse
effects on the aquatic environment or do not satisfy other public
interest review factors, and thus warrant a more thorough individual
review through a public notice and comment process.
Some commenters stated that the NWPs should require consideration
of less damaging alternatives, and others said that the Corps did not
provide sufficient scientific justification for proposed changes to the
NWPs, or demonstrate that NWP activities result in minimal adverse
environmental effects. One commenter said that there is not sufficient
emphasis on avoidance of impacts to waters of the United States.
Another commenter objected to using NWPs to expand existing projects,
stating that it discourages avoidance and minimization.
The NWPs authorize only those activities that result in minimal
individual and cumulative adverse effects on the aquatic environment,
and thus do not include a formal process for consideration of less
damaging alternatives. General condition 20, Mitigation, requires
permittees to avoid and minimize adverse effects to the maximum extent
practicable on the project site. The Corps believes this ensures
sufficient consideration of alternatives for the types of low-impact
projects that are eligible for authorization through NWPs. The Corps
notes that expansion of existing projects may support the goals of
avoidance and minimization, in contrast to the alternative of
developing new sites, which may involve more substantial adverse
impacts. The 404(b)(1) Guidelines contain flexibility for those
activities that result in minimal adverse effects on the aquatic
environment. Compliance with the National Environmental Policy Act and
the Section 404(b)(1) Guidelines is accomplished through decision
documents prepared by the Corps. These decision documents contain
findings that the NWPs result in minimal adverse effects, and are based
on available data at the national scale. Division engineers issue
supplemental decision documents for use of NWPs within Corps district
boundaries.
Several commenters said that the NWPs do not protect small wetlands
and waterbodies enough, and one commenter said that the proposed
permits do not support the ``no overall net loss'' goal for wetlands.
In contrast, one commenter stated that the proposal provides adequate
protection to the environment and supports the ``no overall net loss''
of wetlands goal.
The NWPs protect all jurisdictional waters, including small
wetlands and other waterbodies, through their terms and conditions,
such as acreage limits and linear foot limits. The NWPs also support
the ``no overall net loss goal'' through mitigation requirements,
including aquatic resource restoration, establishment, enhancement, and
preservation activities that may be required as compensatory
mitigation. As noted above, general condition 20, Mitigation, also
includes requirements for on-site avoidance and minimization.
Two commenters objected to allowing district engineers to issue
waivers that allow permittees to exceed the limits of NWPs, stating
that such waivers do not support the minimal adverse effects
requirement. Two commenters said that the NWPs authorize unlimited
impacts to waters of the United States. One commenter remarked that
acreage limits should be consistent for all NWPs. One commenter stated
that the acreage limits in the proposed NWPs are sufficient to ensure
minimal adverse effects. Three commenters asserted that the acreage
limits of the proposed NWPs are too low, and they reduce the
effectiveness of the NWP program. One commenter said that the low
acreage limits for the NWPs lessen incentives to reduce impacts to
waters, since many projects that previously qualified for NWP
authorization now require individual permits. Another commenter stated
that the acreage limits for all NWPs should be based on appropriate
scientific and environmental criteria.
Many of the NWPs have acreage limits, and most of those that do not
are self-limiting due to the nature of the authorized activity (e.g.,
NWP 1 for aids to navigation or NWP 10 for mooring
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buoys). Acreage limits in NWPs cannot be waived by the district
engineer. Linear foot limits in some permits can be waived, but only
for intermittent and ephemeral (not perennial) streams. Two NWPs (i.e.,
NWPs 13 and 36) have cubic yard limits that may be waived. Those NWPs
that contain provisions allowing district engineers to waive linear
foot or cubic yard limits require the district engineer to make a
written determination of minimal adverse effects. In such cases, the
permittee cannot assume that a waiver was granted if the district
engineer does not affirm that waiver in writing (see general condition
27). The Corps believes these limited waiver provisions are appropriate
because activities that exceed the limits may still have minimal
adverse impacts and it may require a site-specific evaluation by the
district engineer to decide if they do. Other NWPs that do not have
limits typically provide environmental benefits, such as aquatic
resource restoration activities authorized by NWP 27 or hazardous and
toxic waste cleanup activities authorized by NWP 38.
NWPs 21, 49, and 50 are a special case, in that they authorize
activities for which review of environmental impacts, including impacts
to aquatic resources, is separately required under other Federal
authorities (e.g., Surface Mining Control and Reclamation Act (SMCRA)
permits for coal mining activities). The Corps believes it would be
unnecessarily duplicative to separately require the same substantive
analyses through an individual permit application as are already
required under SMCRA. However, through the pre-construction
notification review process, the district engineer will consider the
analyses prepared for the SMCRA permit and exercise discretionary
authority to require an individual permit in cases where the district
engineer determines, after considering avoidance and reclamation
activities undertaken pursuant to SMCRA, that the residual adverse
effects are not minimal. The project sponsor is required to obtain
written verification prior to commencing work.
The acreage limits for the NWPs are established so that they
authorize most activities that result in minimal adverse effects on the
aquatic environment. We acknowledge that there may be some activities
that exceed the acreage limits and still have minimal impacts but the
Clean Water Act requires us to ensure that all projects authorized by
NWPs have minimal impacts, not that all minimal-impact projects can be
authorized by NWPs. Activities that are not authorized through NWPs may
be authorized through regional general permits or individual permits.
One commenter stressed that the NWPs must be reissued in time, so
that there is no gap between the expiration date of the current NWPs
and the effective date of the new NWPs. Two commenters recommended
administratively extending the current NWPs until the effective date of
the new NWPs, through 5 U.S.C. 558(c), which is used to
administratively extend National Pollutant Discharge Elimination System
(NDPES) permits issued under Section 402 of the Clean Water Act.
We cannot use 5 U.S.C. 558(c) to administratively extend the NWPs,
since that provision of the Administrative Procedures Act applies only
to activities of ``a continuing nature'' such as discharges of
effluents authorized by National Pollutant Discharge Elimination System
permits issued under Section 402 of the Clean Water Act. The vast
majority of activities authorized by NWPs are construction activities,
with specific start and end dates, either for the discharge of dredged
or fill material into waters of the United States, or structures or
work in navigable waters of the United States. In general, these NWP
activities are not of a continuing nature, and do not meet the
requirements of 5 U.S.C. 558(c). The grandfather provision at 33 CFR
330.6(b) can be used to continue the authorization for those NWP
activities that are under construction, or under contract to begin
construction, after the NWP expires. This provision of the NWP
regulations allows the permittee up to one year to complete the
authorized NWP activity. Today's reissued and new permits will become
effective on March 19, 2007, the day after the existing permits expire.
Thus there will be no gap in coverage. The Corps expects that some
States may be able to make their final Section 401 water quality
certifications for all or some permits by this date. In cases where the
State has not completed a 401 water quality certification by this time,
the Corps will issue provisional verifications and permittees will be
required to obtain individual State certifications prior to commencing
discharges into waters of the United States.
Compliance With Section 404(e) of the Clean Water Act and the 404(b)(1)
Guidelines
Several commenters said that the proposed NWPs are contrary to the
intent of section 404(e) to provide an expedited, streamlined permit
program for activities that have minimal environmental impacts.
The NWPs continue to provide a streamlined authorization process
for those activities that result in minimal individual and cumulative
adverse effects on the aquatic environment. Those activities that do
not qualify for NWP authorization may be authorized by regional general
permits or individual permits.
Many commenters asserted that the NWPs result in more than minimal
adverse effects on the aquatic environment, individually and
cumulatively. Several commenters said that the NWPs do not comply with
the 404(b)(1) Guidelines. One commenter said that the Corps should
provide quantitative statistics on actual impacts, to predict
cumulative impacts resulting from the NWPs. Two commenters believe that
the draft decision documents do not adequately demonstrate that NWPs
will result in minimal individual and cumulative impacts to waters of
the United States. They said that there is not sufficient documentation
to support estimates of the number of times an NWP will be used, the
acres impacted, and the acres mitigated. They also stated that there
should be more specific evaluations of particular types of waters, as
well as landscape considerations. Four commenters said that the Corps
cannot rely on mitigation to ensure minimal adverse effects, stating
that the evaluation of minimal adverse effects must be completed prior
to issuing a general permit. Therefore, the Corps cannot rely on
mitigation that will be offered by permittees when making its finding
under the 404(b)(1) Guidelines.
When we issue the NWPs, we fully comply with the requirements of
the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance of
general permits under section 404. For the section 404 NWPs, each
decision document contains a 404(b)(1) Guidelines analysis. Section
230.7(b) of the 404(b)(1) Guidelines requires only a ``written
evaluation of the potential individual and cumulative impacts of the
categories of activities to be regulated under the general permit.''
Since the required evaluation must be completed before the NWP is
issued, the analysis is predictive in nature. The estimates of
potential individual and cumulative impacts, as well as the projected
compensatory mitigation that will be required, are based on the best
available data from the Corps district offices, based on past use of
NWPs. In our decision documents, we also used readily available
national data on the status of wetlands and other aquatic
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habitats in the United States, and the potential impacts of the NWPs on
those waters.
The 404(b)(1) Guidelines at 40 CFR 230.7 do not prohibit the
consideration of mitigation when making the predictive evaluation of
potential individual and cumulative impacts that may be authorized by
an NWP. The practice of using compensatory mitigation to ensure minimal
adverse individual and cumulative adverse effects is an important
component of the NWP program (see 33 CFR 330.1(e)(3)).
Two commenters said that the Corps cannot rely on regional
conditioning and discretionary authority to ensure minimal adverse
effects. One commenter objected to the ability of the district engineer
to exercise discretionary authority to impose conditions on NWP
activities. Another commenter stated that in order to ensure minimal
adverse effects, pre-construction notification should be required for
all NWPs. A number of commenters said that many of the NWPs do not
authorize activities that are similar in nature. They said that the
Corps is required to explain why activities authorized by an NWP are
similar in nature to warrant authorization under a single NWP.
The pre-construction notification review process and discretionary
authority are important tools to help ensure that the NWPs authorize
only those activities with minimal individual and cumulative adverse
effects. If the district engineer reviews a pre-construction
notification and determines that the impacts are more than minimal,
discretionary authority will be exercised and either the NWP will be
conditioned to require mitigation or other actions to ensure minimal
adverse effects or an individual permit will be required. The Corps
disagrees that pre-construction notification is necessary for all NWP
activities. However, the Corps has expanded the scope of activities
requiring pre-construction notification. Specifically, all activities
conducted under NWPs 7, 8, 17, 21, 29, 31, 33, 34, 37, 38, 39, 40, 42,
44, 45, 46, 49, and 50 now require pre-construction notification,
regardless of acreage impacted. This will enable district engineers to
better ensure that these permits authorize only activities with minimal
impacts.
These NWPs satisfy the requirement under Section 404(e) of the
Clean Water Act that the categories of authorized activities be similar
in nature. The ``similar in nature'' provision does not require NWP
activities to 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 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.
For each NWP that authorizes activities under Section 404 of the Clean
Water Act, the 404(b)(1) Guidelines analysis provides a brief
explanation as to why the activities authorized by that NWP are similar
in nature.
One commenter said that consideration of impacts resulting from
general permits should not be limited to the aquatic environment. This
commenter said that Section 404(e) of the Clean Water Act requires
permitted activities to have minimal impacts on the environment as a
whole.
In addition to the requirement that there be no more than minimal
adverse effects on the aquatic environment, activities authorized by
NWPs must also result in minimal adverse effects with regards to the
Corps public interest factors (see 33 CFR 330.1(d)), which include
other components of the environment.
Compliance With the National Environmental Policy Act
Many commenters said that the Corps must complete an Environmental
Impact Statement for the proposed NWPs. One commenter remarked that the
EIS must consider the individual impacts of the NWPs, as well as their
cumulative impacts. One comment asserted that mitigation cannot be used
to justify using an environmental assessment for NEPA compliance,
instead of an Environmental Impact Statement.
The NWPs authorize activities that have minimal individual and
cumulative adverse effects on the aquatic environment and satisfy other
public interest review factors. The NWPs do not reach the level of
significance required for an EIS. The Corps complies with the
requirements of the NEPA by preparing an environmental assessment for
each NWP. When an NWP is issued, a Finding of No Significant Impact is
also issued.
The use of mitigation to make a Finding of No Significant Impact is
a standard practice for NEPA compliance. For the purposes of NEPA,
mitigation includes avoiding impacts, minimizing impacts, rectifying
impacts through repairing or restoring the affected environment,
reducing or eliminating impacts over time through preservation and
maintenance activities, and compensating for impacts by replacing or
providing resources or environments (see 40 CFR 1508.20). Through the
requirements of general condition 20, Mitigation, the review of pre-
construction notifications by district engineers, and regional and
special conditions imposed on the NWPs by division and district
engineers, NWP activities use all these forms of mitigation so that the
adverse effects of the NWPs do not reach the level of significance that
requires an Environmental Impact Statement.
Several commenters stated that the draft decision documents do not
satisfy the requirements of the National Environmental Policy Act
(NEPA). Some commenters said that the analyses in the decision
documents are not based on realistic data. One commenter noted that the
average impact is often much less than the acreage limit for the NWP,
and said that the mitigation ratios seem too high. One commenter said
that the environmental assessments in draft decision documents must
contain site-specific analyses. Two commenters asserted that the
cumulative effects analyses in the decision documents are inadequate.
One commenter said that the cumulative effects analysis should include
information on the past use of NWPs, as well as information on other
development activities expected to have impacts on protected resources.
We believe the data in the draft decision documents comply with the
requirements of NEPA. The estimates of the projected use of the NWPs,
the acres impacted, and the amount of compensatory mitigation are based
on available data from Corps district offices, and other sources of
data, such as surveys. Those data are based on pre-construction
notifications and other requests for NWP verifications for activities
that do not require pre-construction notification. For those NWP
activities that do not require notification, it is necessary to derive
estimates. For the decision documents, we must use predictive data,
since the future use of an NWP is speculative. Likewise, we cannot
provide site-specific information for these environmental assessments,
because there are no specific sites or projects associated with the
proposed issuance of an NWP. Authorized impacts are usually much less
than the acreage limit for an NWP because of the avoidance and
minimization required by the terms and conditions of the NWPs. The
compensatory mitigation data provided in the decision documents include
preservation.
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On June 24, 2005, the Council on Environmental Quality issued
guidance on the consideration of past actions for cumulative effects
analyses. According to this guidance, the cumulative effects analysis
needs to consider relevant past actions that can be used to analyze
reasonably foreseeable effects that have ``a continuing, additive, and
significant relationship to those effects.'' The guidance also
recommends that agencies look at the present effects of past actions
that are relevant because of significant cause-and-effect relationships
with the effects for the proposed action and its alternatives. Except
for a few activities, the NWPs do not authorize activities of a
continuing nature. In general, they authorize construction activities
with specific start and end dates. The NWPs can be issued for only a
period of five years or less, and once an NWP expires, it cannot be
used to authorize activities in waters of the United States. An
activity must then be authorized by the reissued NWP, another NWP, a
regional general permit, or an individual permit. The cumulative
effects analysis is more properly focused on the permits that can be
used to authorize regulated activities, not past permits that have
expired. Therefore, the cumulative effects analysis for the NWP
issuance needs to focus on the reasonably foreseeable cumulative
effects that are expected to occur during the five year period the NWPs
are valid. We use information on past use of the NWPs to estimate how
often an NWP will be used during the period it will be valid, and to
estimate the impacts and compensatory mitigation resulting from the use
of that NWP.
One commenter requested clarification as to whether the draft
decision documents included an environmental assessment, an EIS, or
another type of NEPA document. Two commenters remarked that the Corps
failed to solicit public comment on the environmental assessments for
the proposed NWPs. Two commenters objected to the Finding of No
Significant Impact (FONSI) in each draft decision document, stating
that it is inappropriate to do a FONSI for a proposed action. Another
commenter concurred with the FONSI found in each NWP decision document.
One commenter said that the draft decision documents accurately
analyzed anticipated environmental effects of the proposed NWPs.
A draft environmental assessment was prepared for each of the
proposed NWPs. The draft environmental assessment was in the draft
decision document, along with the draft statement of findings and, if
the NWP authorized activities under Section 404 of the Clean Water Act,
a draft Section 404(b)(1) Guidelines analysis. Those draft decision
documents were available for public review and comment at the same time
as the proposed NWPs, general conditions, and definitions. A number of
commenters who commented on the proposed NWPs also commented on the
draft decision documents. Commenters could also provide input on the
draft FONSI in each decision document.
Compliance With the Endangered Species Act
In the September 26, 2006, Federal Register notice, we stated that
we will conduct Endangered Species Act Section 7(a)(2) consultation for
the NWPs. Since the issuance of the September 26, 2006, proposal, the
Corps has been working with the National Marine Fisheries Service
(NMFS) and the U.S. Fish and Wildlife Service (USFWS) to develop an
analysis plan to guide the formal programmatic Section 7 consultation
for the NWPs. As soon as the analysis plan is completed, the Corps will
request programmatic Endangered Species Act Section 7(a)(2)
consultation with the USFWS and NMFS. Prior to the effective date of
these NWPs, the Corps will issue a section 7(d) determination for the
NWP Program.
Two commenters said the Corps must conduct Endangered Species Act
consultation before the NWPs are issued. One of these commenters said
that the Corps must conduct programmatic section 7 consultation for the
NWP program, with mandatory district-by-district formal consultations.
One commenter requested a timeline for the programmatic Section 7
consultation with the USFWS and NMFS. Another commenter asked for
clarification whether Section 7 ESA consultation will be conducted for
each NWP authorization or the NWP program as a whole. One commenter
objected to the Corps conducting section 7 consultation for coal mining
activities authorized by the Surface Mining Control and Reclamation
Act.
The programmatic ESA consultation will be conducted for the NWP
program as a whole, and will be concluded as expeditiously as possible.
To address ESA compliance while programmatic consultation is being
conducted, a revised Section 7(d) determination will be issued for the
NWP program before the effective date of these NWPs. The Section 7(d)
determination discusses how the issuance of these NWPs will not
foreclose any options. The requirements of general condition 17 and 33
CFR 330.4(f) will ensure compliance with the ESA. We anticipate that
the programmatic consultation will result in a biological opinion that
provides tools that districts can use to better address potential
impacts to the endangered and threatened species that occur in their
areas of regulatory jurisdiction. Corps districts will conduct their
own formal Section 7 consultations as necessary. The programmatic
consultation will be conducted for the NWP program; its applicability
to NWP 21 and other NWPs will be addressed as part of the programmatic
consultation itself.
One commenter said that the Corps cannot rely on permit applicants
to notify them in cases where ESA consultation is necessary. Two
commenters said that the proposed changes to general condition 17,
which requires district engineers to notify prospective permittees of
their ``no effect'' or ``may affect'' determinations within 45 days of
receipt of a complete pre-construction notification, violates the ESA
since the Corps will be unable to make its decision based on the best
available science. Two commenters said that the Corps must require pre-
construction notifications for all NWP activities to help ensure
compliance with the requirements of the ESA. Two other commenters
stated that species-specific regional conditions must be imposed on the
NWPs to protect endangered and threatened species.
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 in such cases 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. This requirement applies even when a pre-construction
notification would not otherwise be required. In such cases, this
condition also prohibits the prospective permittee from conducting the
NWP activity until the district engineer notifies him or her that the
requirements of the ESA have been fulfilled and the activity is
authorized by NWP. The ESA regulations at 50 CFR part 402 do not
require ESA consultation for those activities that will not affect
endangered or threatened species or destroy or modify designated
critical habitat. In some districts, regional conditions will be
imposed on the NWPs to protect listed species and critical habitat.
The notification requirement in general condition 17 does not
violate the ESA. Forty-five days is generally
[[Page 11097]]
sufficient to screen proposed activities for potential effects to
endangered and threatened species or designated critical habitat, and
determine if section 7 consultation is necessary. The notification
requirement will help improve ESA compliance by keeping the prospective
permittee aware of the status of his or her pre-construction
notification and preclude applicants from assuming that they can
proceed after the 45 day pre-construction notification period has
ended, if they have not heard back from the Corps that ESA requirements
have been fulfilled and the activity is authorized. Districts will
continue to develop regional conditions to further protect endangered
and threatened species, as well as critical habitat.
Linear Foot Limits for Stream Bed Impacts
In the September 26, 2006, Federal Register notice, we proposed to
modify several NWPs to include ephemeral streams in the 300 linear foot
limits for losses of stream beds. We also proposed to allow district
engineers to issue written waivers to the 300 linear foot limit for
intermittent and ephemeral streams, upon making a determination that
the adverse effects on the aquatic environment will be minimal. Many
commenters objected to including ephemeral streams in the 300 linear
foot limit for stream beds for NWPs 29, 39, 40, 42, and 43. Many other
commenters supported the proposed change. A large number of commenters
objected to allowing district engineers to waive the 300 linear foot
limit, stating that miles of stream bed could be lost, resulting in
more than minimal adverse environmental effects. A few commenters
supported the proposed waiver. One commenter said that limits to
filling or excavating ephemeral streams should be addressed through the
regional conditioning process, instead of the national terms and
conditions of the NWPs. Another commenter recommended imposing a higher
linear foot limit for losses of ephemeral streams.
Ephemeral streams are important components of the stream network.
Applying the 300 linear foot limit to ephemeral stream beds will help
ensure that the applicable NWPs will authorize activities with minimal
individual and cumulative adverse effects on the aquatic environment.
The ability of district engineers to issue written waivers of the 300
linear foot limit for intermittent and ephemeral stream beds provides
flexibility in the administration of the NWP program. In cases where
the 300 linear foot limit is waived, the acreage limit of the NWP still
applies. We believe it is more appropriate to limit losses of ephemeral
stream beds through the national NWP terms and conditions, to provide
consistent protection for those waters across the country. Regional
differences in the values applied to ephemeral stream functions and
services can be addressed through the waiver process. We believe the
300 linear foot limit, in conjunction with the waiver process, provides
sufficient flexibility for the NWP program while ensuring minimal
adverse effects.
Three commenters recommended that the Corps modify its definition
of ``ephemeral stream'' to simplify the process of distinguishing
between ephemeral and intermittent streams instead of applying the 300
linear foot limit to ephemeral streams. Another commenter indicated
that the difficulty of distinguishing between ephemeral and
intermittent streams is sufficient justification for including
ephemeral streams in the 300 linear foot limit. In contrast, several
commenters stated that including ephemeral streams in the 300 linear
foot limit would not simplify the administration of the NWP program,
because it would result in a large number of individual permits, as
well as substantial increases in the Corps workload. Two commenters
asked the Corps to establish criteria for determining when a waiver of
the 300 linear foot limit can be issued. One commenter stated that the
300 linear foot limit should not apply to filling or excavating
drainage ditches. One of these commenters said that an acreage limit
should be applied to streams, instead of a linear foot limit.
Modifying the definition of ``ephemeral stream'' is not an
appropriate alternative to modifying the 300 linear foot limit. The
definitions of ``ephemeral stream'' and ``intermittent stream'' that
were first promulgated for the NWPs in 2000 are based on the hydrologic
differences between those stream types, especially the differences in
how the stream bed interacts with the water table. We do not agree that
the changes to the 300 linear foot limit will result in a large
increase in the number of individual permits processed per year. Under
the current NWPs, district engineers could exercise discretionary
authority and require individual permits if proposed impacts to
ephemeral streams would be more than minimal. We do not believe it
would be appropriate to establish national criteria for determining
when a waiver of the 300 linear foot limit would be applied. These
determinations should be made on a case-by-case basis by district
engineers, depending upon assessments of site-specific conditions. Even
though the acreage limits of NWPs 29, 39, 40, 42, and 43 also apply to
losses of stream bed, the linear foot limit is a useful tool for
ensuring minimal adverse effects to these linear aquatic ecosystems.
The 300 linear foot limit for filling and excavating stream beds does
not apply to ditches constructed in wetlands, or to ditches constructed
in uplands that are determined to be waters of the United States.
However, the 300 linear foot limit does apply to ditches that are
constructed by modifying streams through channelization or other
activities.
Pre-Construction Notification
Many commenters objected to the proposal to add or expand pre-
construction notification requirements for several NWPs, and a few of
these commenters said that lowering the pre-construction notification
threshold will substantially increase the Corps workload. Several
commenters stated that increasing the number of activities that require
pre-construction notification will result in additional delays and
costs for permit applicants. In contrast, a number of commenters said
that pre-construction notification should be required for all NWP
activities, so that site-specific concerns can be more effectively
addressed. One commenter asserted that the use of the pre-construction
notification process and the use of discretionary authority should be
limited, to provide more certainty to the NWP authorization process.
Another commenter said that the decision to lower pre-construction
notification thresholds should be left to division engineers and the
regional conditioning process, to provide more flexibility for the NWP
program.
Modifying NWPs 39, 40, 42, and 43 to require pre-construction
notification for all activities will help ensure that these NWPs
authorize only those activities that result in minimal individual and
cumulative adverse effects on the aquatic environment and other public
interest review factors, such as flood hazards and floodplain values.
Corps districts have already been receiving large numbers of
verification requests for NWP 39, 40, 42, and 43 activities that do not
require pre-construction notification, so we believe that this change
will not result in a substantial increase in our workload. In addition,
the modified pre-construction notification threshold will facilitate
compliance with the Endangered Species Act and Section 106 of the
National Historic Preservation Act, by better ensuring notice of
activities that
[[Page 11098]]
may have a higher likelihood of affecting endangered or threatened
species, designated critical habitat, or historic properties. We do not
agree that it is necessary to require pre-construction notifications
for all NWP activities, because many NWP activities have negligible
effects on the aquatic environment and the public interest review
factors. We have focused the pre-construction notification requirements
on those activities that have the potential for adverse effects that
may require additional scrutiny by district engineers, including ESA
and/or NHPA consultation.
The pre-construction notification and discretionary authority
processes provide flexibility to the Corps regulatory program, by
allowing the Corps to focus its limited resources on activities that
have the potential to have more than minimal adverse effects on the
aquatic environment. We believe that the proposed changes to the pre-
construction notification thresholds are necessary for effective
implementation of the NWP program, and to address issues of concern at
the national level.
One commenter objected to the increased use of the pre-construction
notification process and the waivers of limits, such as the 300 linear
foot limit for the loss of intermittent and ephemeral stream beds for
certain NWPs, to authorize activities by NWP. Another commenter said
that it is an administrative burden to require the use of NWP 33 with
other NWPs when in-stream construction activities need to occur in dry
conditions. This commenter said that NWP 33 should only be used when
temporary work is done in waters of the United States, and no other NWP
is needed to authorize permanent structures or fills for the activity.
One commenter recommended requiring pre-construction notifications for
filling waters of the United States that are five or more feet deep,
because of the effects on the hydrologic balance of a region.
The ability to waive limits after the review of a pre-construction
notification and a written determination that the adverse effects of a
particular NWP activity will be minimal provides flexibility to the NWP
program, and allows the Corps to focus more of its resources on those
activities that require individual permits and may have substantial
adverse effects on the aquatic environment and the public interest. In
the final NWPs, we have addressed the concern regarding the requirement
to use NWP 33 for all temporary construction, access, and dewatering
activities. Those changes are discussed in further detail for each
applicable NWP. Many NWP activities that result in a discharge of
dredged or fill material into waters of the United States, regardless
of water depth, require pre-construction notification, which will allow
district engineers to review those activities on a case-by-case basis
and assess potential effects on the hydrologic balance of the area in
the vicinity of the proposed work.
One commenter said that the pre-construction notification process
should be modified to require notification of Indian Tribes, to provide
them with the opportunity to comment on proposed activities that may
result in the violation of Indian rights. This commenter also said that
if the Indian Tribe identifies a potential conflict with Federally-
protected Indian rights, the use of the NWPs should not be allowed.
The regional conditioning process, as well as government-to-
government consultation between Tribes and the Corps districts where
Tribal lands are located, are more appropriate mechanisms to address
this commenter's concerns, since there are over 580 Federally-
recognized tribes, and each Tribe is likely to have different concerns
regarding the implementation of the NWP program. General condition 16
states that no NWP activity may impair reserved Tribal rights.
Activities that do impair reserved Tribal rights are not authorized by
NWPs. Regional conditions are an effective mechanism for addressing the
concerns of a specific Indian Tribe, and can be used to facilitate
working relationships between the Corps and the Tribe to help the Corps
fulfill its trust responsibilities.
Clean Water Act Jurisdiction
On June 19, 2006, the Supreme Court issued its decision in the case
of Rapanos et ux, et al, v. United States. Many commenters cited this
decision, as well as other court decisions, and said that the proposed
NWPs exceed the Corps jurisdictional authority under Section 404 of the
Clean Water Act. Several commenters said that ephemeral streams are not
subject to Clean Water Act jurisdiction and should not be covered in
the NWPs. Another commenter asserted that intermittent streams are not
waters of the United States.
The Rapanos decision, as well as other court decisions made in the
past several years, 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 Corps, U.S.
Environmental Protection Agency). Under the current regulations and
guidance, intermittent and ephemeral streams may meet the regulatory
definition of ``waters of the United States'' and be subject to Clean
Water Act jurisdiction. Regulatory jurisdiction over these waterbodies
will be determined on a case-by-case basis by district engineers, in
accordance with current and future regulations and guidance.
One commenter said that when applying the NWP acreage limits to
wetlands, the Corps should not include all wetlands, just those subject
to Clean Water Act jurisdiction. One commenter stated that a clearer
definition of ``navigable waters'' is needed. Another commenter said
that ditches are not waters of the United States, and impacts to
ditches should instead be addressed through state programs. A commenter
stated that the Corps must promulgate regulations to define ``waters of
the United States'' for the purposes of implementing the NWP program.
The acreage limits of the NWPs apply only to losses of waters of
the United States, including jurisdictional wetlands (see the
definition of the term ``loss of waters of the United States'' in the
``Definitions'' section of the NWPs). Similarly, linear foot limits
apply only to jurisdictional streams. Ditches may also be subject to
jurisdiction under Section 404 of the Clean Water Act and/or Section 10
of the Rivers and Harbors Act of 1899, if they meet the regulatory
definitions of ``waters of the United States'' and/or ``navigable
waters of the United States.'' Waters of the United States are defined
at 33 CFR part 328 and navigable waters of the United States are
defined at 33 CFR part 329.
Regional Conditioning of Nationwide Permits
One commenter stated that regional conditions are unnecessary, and
result in too much restriction of the NWPs. A commenter remarked that
placing too many regional conditions on the NWPs is contrary to E.O.
13274, Environmental Stewardship and Transportation Infrastructure
Project Reviews. One commenter said that regional conditions should not
be redundant with the requirements of other agencies, and the
streamlining objective of the NWPs should be maintained.
Regional conditions are necessary to account for regional
differences in aquatic resource functions, services, and values and to
ensure that the NWPs
[[Page 11099]]
authorize only those activities that have minimal individual and
cumulative adverse effects on the aquatic environment and other public
interest review factors. Regional conditions are important tools for
protecting endangered and threatened species, designated critical
habitat for those species, essential fish habitat, historic properties,
and other important resources. As a general matter, we agree that
regional conditions should not duplicate the requirements of other
agencies, but the Corps often has the responsibility to comply with
other statutes and regulations administered by other agencies.
Two commenters said that there needs to be clearer rules for the
adoption of regional conditions for the NWPs. A couple of commenters
indicated that districts need to provide justifications for proposed
regional condition, and make that information available to the public.
Three commenters said that regional conditions should not be limited to
further restricting the use of the NWPs. One commenter said that
regional conditions should not be based on district boundaries.
Instead, they should be based on ecoregions or other ecologically-
delineated areas. Another commenter recommended that the Corps work
with other agencies to develop a list of high value wetlands in which
NWPs cannot be used.
Regional conditions may only further condition or restrict the
applicability of an NWP (see 33 CFR 330.1(d)). In areas where
environmental conditions and other circumstances warrant less
restrictive general permit conditions, district engineers may issue
regional general permits to authorize similar activities, as long as
those general permits meet applicable requirements. The regulations
governing the adoption of regional conditions are provided at 33 CFR
330.5(c). We believe it is necessary to provide flexibility to division
engineers to determine the necessity and appropriateness of regional
conditions to address concerns regarding the use of NWPs in a
particular area. The notices issued by Corps districts soliciting
public comment on proposed regional conditions are required to include
statements concerning the environmental factors or other public
interest factors resulting in the need for regional conditions (see 33
CFR 330.5(c)(1)). Regional conditions may be based on geographic areas
other than district boundaries. Regional conditions may be imposed on
the use of NWPs in watersheds, counties, states, ecoregions, or other
types of areas. General condition 19, designated critical resource
waters, provides a national list of high value waters. Districts can
coordinate with other agencies to develop lists of high value wetlands
within their district boundaries.
Data Collection
One commenter said that the supporting data used by the Corps falls
short of the standards required by the Data Quality Act of 2001, and
the Office of Management and Budget's ``Guidelines for Ensuring and
Maximizing the Quality, Objectivity, Utility, and Integrity of
Information Disseminated by Federal Agencies.'' This commenter stated
that the Corps should provide data on aquatic resource functions to
support its minimal impact determinations.
The data used for the NWP decision documents are the best available
data at a national scale. The estimated impacts and mitigation provided
in the decision documents were developed by reviewing and analyzing
permit data from our district offices, as well as through consideration
of how proposed changes to the NWPs would affect the amounts of
authorized impacts and mitigation. Data on aquatic resource functions
is generally not available. The National Wetland Inventory examines
wetland status and trends for the conterminous United States, but
information on wetland quality and function is not available.
Three commenters expressed concern about tracking permanent and
temporary impacts to waters of the United States and recommended that
the Corps implement a national tracking and monitoring system. This
system would also facilitate the sharing of information with
cooperating resource agencies and help improve decision making.
We are in the process of transitioning to a new automated
information system (AIS) for the Corps regulatory program. The new AIS
is version 2.0 of the ``OMBIL Regulatory Module'' (ORM 2.0). This
national tracking and monitoring system will improve and standardize
data collection for the Corps regulatory program, and will assist in
decision-making for permit actions and other types of regulatory
activities, such as jurisdictional determinations. ORM 2.0 will be
spatially enabled, using geographic information systems and other
analytical tools that will provide more efficient and effective
processing of permit applications, jurisdictional determinations, and
other tasks. Cumulative impact analysis will also be supported by ORM
2.0. The structure of ORM 2.0 will also be standard among Corps
districts, providing for more consistent information collection and
storage, and will be readily available for analysis and reporting. The
standard structure of ORM will also promote consistency in Regulatory
Program implementation.
ORM 2.0 will help improve data collection for the NWP program, as
well as other types of permits issued by the Corps. Data collection
will be more standard among permit types, especially for impact and
mitigation data. We will continue to collect data on authorized losses
of waters of the United States, including resource type, acreage, and
impact type. ORM 2.0 incorporates several additional AIS resources to
assist in the tracking of all required compensatory mitigation,
including the amount, type (e.g., reestablishment), and source (i.e.,
permittee-responsible mitigation, mitigation bank, or in-lieu fee).
ORM 2.0 will also facilitate compliance with the Endangered Species
Act, the National Historic Preservation Act, and the essential fish
habitat provisions of the Magnuson-Stevens Fishery Management and
Conservation Act. Screening tools based on available data for those
resources will help Corps personnel identify activities that may affect
those resources and require further consultation. The available
resource data will be provided by other agencies, through data sharing
agreements. Available data sets from the national, state, and local
levels can be utilized by ORM 2.0.
ORM 2.0 is capable of supporting electronic interagency
coordination. For activities that typically require interagency
coordination and consultation, agencies will have the option of
receiving electronic coordination notices and consultation requests and
of responding to the Corps via a link to ORM 2.0. Agencies will be
required to enter into a Memorandum of Agreement supporting the use of
electronic communications for permit activities.
ORM 2.0 will also include time tracking features to help remind
Corps project managers when the end of the 45-day pre-construction
notification review will occur. Monitoring and enforcement activities
will also be supported by ORM 2.0, including the tracking of when
monitoring reports for compensatory mitigation projects are due.
ORM 2.0 will also support an electronic permit application, thereby
allowing prospective permittees to submit their pre-construction
notifications electronically to the appropriate Corps district. Permit
[[Page 11100]]
applicants will be able to check the status of their permit
applications through the electronic permit Web site.
Other Issues
One commenter said that the Corps should stop issuing NWPs until
effective compensatory mitigation is provided for those permits.
Several commenters stated that the Corps places too much reliance on
compensatory mitigation, citing recent studies that concluded that
compensatory mitigation projects often fail to achieve their
objectives. A couple of commenters asserted that the Corps should not
rely on compensatory mitigation to ensure minimal individual and
cumulative adverse effects. Another commenter objected to the more
stringent requirements for compensatory mitigation for NWP activities,
stating that compensatory mitigation for small impacts tends to be more
expensive than the costs to plan and construct the proposed activity
requiring NWP authorization.
Compensatory mitigation is an important mechanism to help ensure
that the NWPs authorize activities that result in minimal individual
and cumulative adverse effects on the aquatic environmental. We
acknowledge that the ecological success of compensatory mitigation
projects varies widely. Some compensatory mitigation projects fail to
meet their objectives, while others do result in successful replacement
of aquatic resource functions that are lost as a result of activities
authorized by NWPs. We are committed to improving compliance for
compensatory mitigation required for Department of the Army permits,
including NWPs. District engineers have the flexibility to determine
when compensatory mitigation should be required for activities
authorized by NWPs. If it is not appropriate or practicable to require
compensatory mitigation for a particular activity, and that activity
will result in minimal adverse effects on the aquatic environment, then
the district engineer may determine that compensatory mitigation is not
necessary. Otherwise, if the proposed activity will result in more than
minimal adverse effects on the aquatic environment after determining
that compensatory mitigation is not appropriate or practicable, then an
individual permit would be required.
One commenter said that the NWPs do not distinguish between
different types of waters, but combine waters when applying the acreage
limit for the NWP. This commenter stated that the Corps needs to
recognize that different types of waters often have different
functions.
The NWPs do recognize different types of waters. The terms and
conditions of NWPs are often based on the characteristics of different
types of waters. For example, NWP 39 does not authorize discharges of
dredged or fill into non-tidal wetlands adjacent to tidal waters.
One commenter said that the requirement for NWP activities to be
single and complete projects should not be removed, citing the proposed
changes to NWPs 13, 15, 18, and 19. This commenter stated that the
requirement for single and complete projects does not appear outside of
the Corps definition at 33 CFR 330.2(i). One commenter objected to the
removal of the requirement in several NWPs to submit an avoidance/
minimization statement with the pre-construction notification.
The requirement that NWPs authorize single and complete projects
applies to all NWPs. Limiting the NWPs to authorize only single and
complete projects is a long-standing practice, and we are adding a new
general condition (GC 28) to clarify that the NWPs only authorize
single and complete projects.
The requirement for an avoidance/minimization statement that was in
NWPs 39, 43, and 44 is not necessary, because we have modified NWP 39
to require pre-construction notification for all activities, and we are
requiring pre-construction notification for all construction and
expansion of storm water management facilities under NWP 43. In
addition, general condition 20 requires permittees to avoid and
minimize adverse effects to waters of the United State to the maximum
extent practicable on the project site. When reviewing a pre-
construction notification, the district engineer will determine whether
sufficient avoidance and minimization of impacts to waters of the
United States has occurred, and whether the activity complies with
general condition 20. It is the responsibility of the district engineer
to make this determination, and we do not believe it is appropriate to
place that burden on the prospective permittee by requiring the
submittal of a statement with the pre-construction notification.
One commenter recommended that the Corps adopt an administrative
appeal process for activities authorized by NWPs, which would provide
for third party appeals. Another commenter said that compliance
inspections should be conducted for a certain number of NWP activities
per year. One commenter said that the Corps needs to do more
enforcement and monitoring of activities authorized by NWPs.
We do not believe it would be appropriate or necessary to establish
an administrative appeal process for the NWP program, since the NWPs
authorize only those activities that have minimal individual and
cumulative adverse effects on the aquatic environment. The
administrative appeal process at 33 CFR part 331 applies only to
individual permits and jurisdictional determinations, and does not
provide for third party administrative appeals.
Performance measures established for the Regulatory Program require
our district offices to conduct compliance inspections for a proportion
of general permit activities occurring in a given year.
One commenter said that the Corps should retain a separate NWP for
aggregate mining activities (the current NWP 44), and provide greater
acreage limits, since the proposed modification of NWP 44 will have
little utility for the aggregate mining industry.
We do not believe it would be appropriate to issue another NWP for
aggregate mining activities, with greater acreage limit. The acreage
limit for NWP 44 is intended to ensure that this NWP authorizes only
those activities with minimal individual and cumulative adverse effects
on the aquatic environment. This NWP authorizes aggregate mining
activities.
Two commenters said that all references to excavation in the NWPs
should cite 33 CFR 323.3(d) to clarify that not all excavation
activities require section 404 permits. One commenter suggested adding
a new general condition which would require submittal of a delineation
of non-jurisdictional wetlands with the pre-construction notification
for those NWPs authorizing development activities, so that states could
be notified of these activities. One commenter said that NWPs should
not authorize activities in springs, seeps, headwater streams, and
fens.
Many excavation activities result in discharges of dredged material
that require section 404 permits. When reviewing pre-construction
notifications, district engineers will determine whether an excavation
activity results in a discharge of dredged material and requires a
section 404 permit, or whether a permit is not needed. It is not
appropriate for the Corps to require prospective permittees to submit
delineations of areas that are not waters of the United States with
their pre-construction notifications. States that regulate these non-
jurisdictional aquatic habitats should
[[Page 11101]]
address those concerns through their permit processes. The NWPs can be
regionally conditioned to restrict or prohibit NWP activities in
springs, seeps, headwater streams, and fens.
One commenter requested that the Corps reissue NWP 26, which
authorized discharges into headwaters and isolated waters, in
accordance with the limits described in the December 13, 1996 Federal
Register notice.
There are no plans to reissue NWP 26. This NWP expired on June 7,
2000. We have issued NWPs that have replaced NWP 26.
Water Quality Certification/Coastal Zone Management Act Consistency
Determination Issues
One commenter said that the Corps should provide an opportunity for
state and Tribal water quality certification agencies to participate
early in the NWP reissuance process, to reduce potential conflicts
during the water quality certification process. Another commenter
requested clarification regarding enforcement of the NWPs, in cases
where a provisional NWP verification is issued, but the permittee
proceeds with work without receiving the individual water quality
certification. This commenter asked whether the Corps or the state
would initiate an enforcement action. One commenter objected to use of
provisional NWP verifications in cases where water quality
certification has not yet been issued for a particular NWP activity.
We cannot begin coordination for water quality certification at an
earlier time in the NWP reissuance process. States and Tribes need to
see the proposed permit and general condition language, which is not
available until the publication of the proposal in the Federal
Register, in order to proceed with the certification process. We
believe there is generally adequate time to complete the water quality
certification process, however, where there is not, the Corps will
issue only provisional verifications until the State or Tribe has
completed its certification process; in this case, permittees are
required to obtain individual certification directly from the State or
Tribe before commencing work.
If a provisional NWP verification is issued, the activity is not
authorized by NWP until the required water quality certification is
obtained or waived. If the project proponent begins the work before
water quality certification is obtained or waived, the district
engineer has full authority to initiate an enforcement action for the
discharge of dredged or fill material into waters of the United States
without a valid permit, in violation of the Clean Water Act. The
district engineer will use his or her discretion, when determining
whether to pursue an enforcement action. The use of provisional NWP
verifications is necessary to provide timely responses to prospective
permittees in cases where the State or Tribe has not yet completed its
certification process. In addition, some States prefer not to issue
general certifications for some or all NWPs. These States require a
review of individual PCNs before issuing water quality certification
for a particular activity.
Discussion of Comments and Final Permit Decisions
Nationwide Permits
NWP 1. Aids to Navigation. There were no changes proposed for this
NWP, and no comments were received. This NWP is reissued without
change.
NWP 2. Structures in Artificial Canals. There were no changes
proposed for this NWP, and no comments were received. This NWP is
reissued without change.
NWP 3. Maintenance. We proposed to modify this NWP by removing the
provisions for the restoration of uplands damaged by discrete events.
We also proposed to add maintenance dredging or excavation of intakes,
outfalls, and canals, which was authorized by NWP 7.
Several commenters expressed support for the proposed changes to
this NWP. One commenter objected to the removal of the explicit
references to the ``water quality'' and ``management of water flows''
general conditions, stating that the removal of those references would
change the intent of the NWP. One commenter recommended removing the
language regarding the disposal of excavated material in upland areas,
since it implies that excavation activities are regulated by the Corps
under Section 404 of the Clean Water Act. Several commenters
recommended adding language to clarify that excavation activities, or
incidental fallback, do not require a section 404 permit. One commenter
said that the definition of ``currently serviceable'' should remain in
the text of this NWP, instead of moving it to the ``Definitions''
section.
Even though explicit references to general conditions were removed
from its text, all general conditions, including those general
conditions cited above, are still applicable to this NWP. The terms of
this NWP require permittees to deposit and retain dredged or excavated
materials in an upland area, unless the district engineer authorizes
the use of another area. This term does not suggest that excavation
activities not involving discharges of fill or dredge material into
Section 404 waters are regulated by the Corps. Instead, it specifies
the type of site that may receive dredged or excavated material under
this NWP for activities that do require Section 404 authorization.
Excavation activities in waters of the United States require section
404 permits if they result in a discharge of dredged or fill material
into those waters (see 33 CFR 323.2(d)). Activities that result in only
incidental fallback do not require permits. Since the definition of
``currently serviceable'' is used in NWPs 41 and 47, it is more
appropriate to have the definition in the ``Definitions'' section, for
easier reference.
A couple of commenters objected to moving the provision authorizing
the repair, rehabilitation, or replacement of structures or fills
destroyed or damaged by discrete events to proposed NWP A, which
requires pre-construction notification for all activities. These
commenters said that the proposed change would hinder the ability of
utility companies and transportation departments to quickly repair
utility lines, roads, and other important infrastructure damaged or
destroyed by severe storms. One commenter suggested adding another note
to this NWP, to refer potential applicants to NWP 45 in cases where
structures that have been made non-functional by some discrete event
may qualify for repair, rehabilitation, or replacement.
We have restored the language authorizing the repair,
rehabilitation, or replacement of structures or fills destroyed or
damaged by storms or other discrete events in paragraph (a) of NWP 3,
and removed it from proposed NWP A (now designated as NWP 45). Because
of this change, it is no longer appropriate to add a note to this NWP
to refer to NWP 45.
One commenter suggested that this NWP should not be used to
authorize additional or new work, fill, riprap or structures that was
not part of the original authorization. One commenter stated that the
continued maintenance, repair, restoration, and replacement of a
structure may represent ongoing impacts that are more than minimal, and
may preclude restoration of environmental features at the project site.
This commenter said that those types of activities should require on-
going mitigation. Another commenter said that this NWP should not be
reissued, since its use results in more than minimal adverse impacts to
the
[[Page 11102]]
aquatic environment. Another commenter suggested that this NWP should
not authorize replacement of structures and fill, and that it should be
restricted to repair or rehabilitation activities involving 50 percent
or less of a structure. One commenter said that this NWP should
authorize modifications to older structures that would help improve the
aquatic environment. This commenter also recommended replacing the use
of riprap with less environmentally damaging alternatives, such as
bioengineered structures.
This NWP does not authorize any significant increase in the
original structure or fill. Only minor deviations necessary to conduct
repairs and maintenance, or the placement of the minimum necessary
riprap to protect the structure, are eligible for authorization under
this NWP. Because of the nature of activities authorized by this NWP,
as a general rule compensatory mitigation should not be required for
these maintenance activities. If a Department of the Army permit was
required to construct the original structure or fill, appropriate
compensatory mitigation would have been required by the district
engineer when the permit was issued, to offset the loss of aquatic
resource functions and services resulting from the authorized work.
Additional compensatory mitigation is usually unnecessary to maintain
those structures or fills. The terms and conditions for NWP 3, plus any
regional conditions imposed by division engineers, will ensure that
this NWP authorizes only those activities with minimal individual and
cumulative adverse effects on the aquatic environment. We believe that
this NWP should continue to authorize the replacement of structures or
fills, or rehabilitation activities, since those activities usually
result in minimal adverse effects on the aquatic environment. As for
modifying this NWP to authorize changes to structures that would
improve the aquatic environment, we believe it would be more
appropriate for district engineers to authorize such changes through
other permits. Changes to structures would require more thorough
evaluation to ensure that net improvements to the aquatic environment
will occur. The use of bioengineering methods to protect existing
structures may not be very effective, because of the environmental
conditions, such as water flows, near these structures. Riprap is
usually the most effective means of protecting these structures, and
the terms of this NWP require minimization of the footprint of the
riprap. District engineers can consider bioengineering on a case-by-
case basis, and authorize such activities as appropriate.
One commenter said that this NWP should not authorize the
maintenance of bank stabilization structures that are more than 300
feet long. One commenter suggested dividing paragraph (b) into two
subparagraphs. One subparagraph would authorize debris and sediment
removal and the other subparagraph would authorize riprap. This
commenter also indicated that this NWP should be modified to limit the
removal of sediment to the minimum necessary to ``restore the bed of
the waterway to its natural grade.''
This NWP authorizes only activities that repair or return an
activity to previously existing conditions. We do not believe it is
necessary to further restrict this NWP to limit maintenance of bank
stabilization structures. Dividing paragraph (b) into two subparagraphs
is not needed, since the riprap is typically used to protect the
structure once the accumulated sediment has been removed. The purpose
of this NWP is to authorize restoring structures or fills to their
original condition. It may not be possible to determine the ``natural
grade'' of the waterway, and this may not have been the condition at
the time the structure or fill was originally authorized. Therefore, we
believe the current language is more appropriate.
Several commenters recommended modifying this NWP to authorize both
permanent and temporary impacts of maintenance activities, since the
requirement to submit a pre-construction notification for temporary
impacts would significantly increase regulatory and administrative
burdens on the applicants and the Corps, without any environmental
benefits or added value to the process.
We agree, and have added a new paragraph (c) to this NWP to address
temporary structures, fills, and work necessary to conduct the
maintenance activities authorized by this NWP.
Several commenters objected to the requirement to provide
information about original design capacities and configurations of the
structures and canals as part of the pre-construction notification for
the proposed activity. These commenters stated that this information
may not exist or be readily available, particularly for old facilities
and structures. These commenters recommended that the information be
required only where it is reasonably available. Alternatively, the
commenters proposed retaining the language regarding the project not
causing more than minimal changes to the flow characteristics of the
stream, or increased flooding, instead of specifically requiring
original design information.
The provision to require information regarding the original design
capacities and configurations of structures and other features is only
applicable when maintenance dredging is proposed. We believe that this
information can be developed fairly easily, since the capacities and
configurations of the outfalls, intakes, impoundments, and canals can
be developed or inferred by examining the existing facilities, in cases
where historical documentation is not available.
Several commenters expressed opposition to the terms of the NWP
that limit the removal of sediment to the minimum necessary to restore
the waterway to the approximate dimensions that existed when the
structure was built. Another commenter recommended changing the
language to require restoration of the project to its original design
conveyance capacity.
The current language is adequate to ensure that this NWP authorizes
necessary sediment removal activities that result in minimal adverse
effects on the aquatic environment. We believe that the limits for the
removal of sediments should be established with regard to the
conditions of the waterway itself at the time of project construction
rather than to the specifications of the structures.
One commenter requested clarification as to whether the 200 foot
limit on the removal of accumulated sediment is subject to the \1/2\
acre limit found in other NWPs.
This NWP does not have a \1/2\ acre limit. If this NWP is used with
another NWP to authorize a single and complete activity, then the
activity is subject to the requirements of general condition 24, Use of
Multiple Nationwide Permits. If this NWP is used with an NWP with a \1/
2\ acre limit, such as NWP 39, then the \1/2\ acre limit would apply to
the single and complete project.
One commenter requested the addition of ``flood conveyance
channels'' to paragraph (b) of this NWP, instead of requiring the use
of NWP 31. Another commenter stated that additional routine maintenance
activities, which are authorized by NWPs 31 and 43, should be
consolidated under NWP 3. One commenter suggested adding language to
clarify that this NWP authorizes emergency repairs of submarine fiber
optic cables.
[[Page 11103]]
NWP 31 is being reissued to authorize maintenance activities for
existing flood control facilities, including flood conveyance channels.
Therefore, we do not believe it is necessary to modify NWP 3 to
authorize those activities. We are also reissuing NWP 43 to authorize
maintenance activities for storm water management facilities. Emergency
repairs of submarine fiber optic cables may be authorized by this NWP,
provided the activity meets its terms and conditions.
One commenter indicated that small sediment removal projects should
not require pre-construction notification. Another commenter stated
that pre-construction notification should not be required for the
placement of riprap to protect structures. A few other commenters said
that pre-construction notification should not be required for
activities authorized by paragraph (b) of this NWP. In contrast, one
commenter suggested that pre construction notification should be
required for all activities covered under NWP 3.
We believe that the pre-construction notification requirements for
this NWP are appropriate. Pre-construction notification is required for
those activities that may have the potential to cause more than minimal
adverse effects on the aquatic environment.
One commenter recommended that sediments should be sampled to
project depth prior to dredging, and that sandy sediment suitable for
nearshore disposal should be returned to the littoral system down drift
of the project site.
Regulatory Guidance Letter 06-02 establishes that testing of dredge
material is not required when there is reason to believe that no
contaminants are present in the material. Therefore, a standard
requirement to sample and test sediments to be dredged under NWP 3
would not be appropriate. The nearshore disposal of sandy sediments
should be addressed through separate authorizations, such as individual
permits, since those activities may have more than minimal adverse
environmental effects.
One commenter indicated that significant wetland habitat
development has been observed on sediments left in place for many years
within canals associated with outfall and intake structures. That
commenter stated that exempting maintenance activities in such canals
from the 200 linear foot restriction may have a significant impact on
the wetland habitats in these channels. Another commenter suggested
that the placement of riprap or any other bank stabilization material
in, or the removal of accumulated sediment from, any special aquatic
site should be prohibited.
Since this NWP only authorizes activities that restore an area to
its previous condition, we do not believe it is appropriate to prohibit
the maintenance of structures or fills simply because a special aquatic
site may have formed in these areas. District engineers will review
pre-construction notifications to determine if the placement of riprap
or the removal of accumulated sediments in special aquatic sites would
cause more than minimal impact, and use discretionary authority to
address situations where they would.
One commenter stated that affected tribes should be informed of all
pre-construction notifications for this NWP that involve in-water work
and be provided 30 days to provide comments. This commenter also
suggested that while bioengineered projects are less environmentally
damaging than riprap and offer benefits to salmon, the presence of wood
in some bank protection structures has the potential to interfere with
treaty fishing access by preventing the use of nets.
Coordination of proposed NWP 3 activities with Indian tribes is
more appropriately addressed through government-to-government
consultations with Corps districts. General condition 16, Tribal
Rights, does not allow an activity or its operation to impair reserved
tribal rights, including but not limited to, reserved water rights and
treaty fishing and hunting rights. Compliance with this general
condition, along with coordination with interested Indian Tribes, will
help protect tribal rights.
One commenter suggested that the placement of riprap should be the
minimum necessary to protect the structure, in order to reduce adverse
effects to habitat-forming processes within waterbodies, such as salmon
habitat. Another commenter said that this NWP should not authorize
maintenance work on culverts that fail to meet appropriate standards
for the upstream and downstream passage of fish, or culverts that do
not allow for the downstream passage of substrate and wood.
The terms and conditions of this NWP limit the placement of riprap
to the minimum necessary to provide adequate erosion protection. Other
NWP general conditions, such as general condition 17 for endangered
species, may provide additional protection for species of concern, as
well as their habitat. General condition 2 prohibits activities which
could disrupt the necessary life cycle movements of aquatic species.
One commenter stated that pre-construction notifications should be
required for all NWP 3 activities to ensure compliance with its terms
and conditions. Another commenter stated that the Corps should
carefully review all maintenance applications to ensure that the area
impacted is not larger than needed to complete the maintenance
activities, and that no additional impacts are authorized or conducted.
We do not agree that pre-construction notification should be
required for all activities. The terms and conditions of this NWP are
adequate to ensure that it authorizes only those activities with
minimal adverse effects on the aquatic environment. Where there are
concerns for the aquatic environment, division engineers can regionally
condition this NWP to require pre-construction notification or other
measures.
One commenter said that streams near roads may migrate from their
original location and compromise the road. This commenter said that for
those situations, this NWP should authorize relocation of the stream
back to its original location. The commenter also indicated that small
channel realignments should be authorized to properly convey the water
into culverts.
This NWP does not authorize new stream channelization or stream
relocation projects. Those activities may be authorized by other
Department of the Army permits.
This NWP is reissued with the modifications discussed above.
NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. We proposed to remove the provision for
shellfish seeding, since we proposed to modify NWP 27 to authorize this
activity. No comments were received. This NWP is reissued as proposed.
NWP 5. Scientific Measurement Devices. We proposed to remove the
pre-construction notification requirement for discharges of 10 to 25
cubic yards for the construction of small weirs and flumes, but retain
the 25 cubic yard limit for such construction.
Several commenters supported this NWP and the proposed removal of
the pre-construction notification requirement on the basis that
activities authorized under this NWP result in minimal impacts. Another
commenter agreed with the removal of the pre-construction notification
requirement for discharges of 10 to 25 cubic yards for construction of
weirs and flumes because it will facilitate the implementation of water
quality improvement projects sponsored by Federal, State, and local
agencies, as well as the scientific community. Two
[[Page 11104]]
commenters objected to the removal of the pre-construction notification
threshold. One commenter recommended conditioning this NWP to ensure
that authorized activities do not interfere with the movements of
organisms within watercourses or prevent ingress or egress of aquatic
organisms.
Based on our past experience with this NWP, we believe the removal
of the pre-construction notification requirement for discharges of 10
to 25 cubic yards for the construction of small weirs and flumes is
appropriate. Project proponents are required to comply with all
applicable general conditions, including general condition 2, Aquatic
Life Movements, which prohibits activities from substantially
disrupting life cycle movements of aquatic organisms. Further, we
believe the district engineer's authority to issue case-specific
special conditions and to impose regional conditions to require pre-
construction notifications for certain activities, such as activities
involving specified quantities of fills for the construction of small
weirs and flumes, is adequate to address local concerns regarding
potential adverse effects to the movement of aquatic organisms.
One commenter said that the NWP should have a condition requiring
all temporary devices to be removed when the devices will no longer be
used. This commenter also asked whether this NWP authorizes the
installation of single measurement devices or multiple measurement
devices.
The removal of temporary fills is required by general condition 13.
The NWP authorizes single and complete scientific measurement device
projects. Scientific measurement devices with independent utility can
be authorized by separate NWP authorizations.
This NWP is reissued as proposed.
NWP 6. Survey Activities. We proposed to modify this NWP to add
exploratory trenching to the list of authorized activities and to
authorize the construction of temporary pads used for survey
activities, provided the discharge does not exceed 25 cubic yards.
Two commenters supported the proposed modifications and one
commenter said that the NWP would result in more than minimal impacts
to the aquatic environment. One commenter stated that there should be a
\1/4\ acre limit for exploratory trenching. This commenter also
suggested imposing a 25 cubic yard limit on all activities authorized
by this NWP.
It has been our experience that exploratory trenching results in
minimal adverse effects on the aquatic environment, and this NWP has
been conditioned to require restoration of the trenched area upon
completion of work. Since most impacts associated with exploratory
trenches are temporary, an acreage limit is not necessary. Division
engineers may impose regional conditions to require pre-construction
notifications or specific limits for certain activities. District
engineers may also exercise discretionary authority and require an
individual permit if a proposed activity would result in more than
minimal adverse effects on the aquatic environment. It is unnecessary
to impose a 25 cubic yard limit on all discharges authorized by this
NWP, since most of these discharges are temporary. Temporary fills must
be removed upon completion of the work, in accordance with the
requirements of general condition 13. Any permanent fills are likely to
be small in size, because of the types of activities authorized by this
NWP.
One commenter suggested adding language regarding the backfilling
of the exploratory trench. Some commenters stated that the definition
of ``exploratory trenching'' should include more prescriptive details
such as benchmarks, width, and depth.
We are conditioning this NWP to require permittees to backfill the
top 6 to 12 inches of exploratory trenches constructed in wetlands with
topsoil from the trench. This change will bring consistency with the
terms of other NWPs that authorize trenching activities. We do not
believe that it is necessary to include prescriptive limits on the
trench dimensions. However, division engineers may choose to establish
such limits through regional conditions.
One commenter suggested that the 25 cubic yard limit for discharges
associated with temporary pads should be removed. Another said that the
25 cubic yard limit should apply to the cumulative amount of material
for multiple drill sites. Two commenters said that limits should be
placed on the amount of such discharges because a state may not issue
water quality certification for this NWP.
The 25 cubic yard limit is necessary to help ensure that the NWP
authorizes only activities with minimal adverse effects on the aquatic
environment. It also provides a suitable limit on the quantity of
discharge necessary for construction of these temporary pads. The cubic
yard limit for temporary pads applies to a single and complete project,
as defined at 33 CFR 330.2(i). If a state does not issue water quality
certification for this NWP, an individual water quality certification
must be obtained or waived for each activity before it is authorized in
that state.
One commenter stated the NWP should also authorize temporary access
roads. Such work may qualify for the 404(f) exemption for temporary
mining roads or could be authorized by NWP 33.
The NWP is reissued with the modification discussed above.
NWP 7. Outfall Structures and Associated Intake Structures. We
proposed to move maintenance dredging and excavation activities to NWP
3. We also proposed to change the title of this NWP to more clearly
describe what it authorizes.
Several commenters supported moving maintenance dredging and
excavation activities to NWP 3, while one commenter objected to the
proposed change. One commenter said this NWP should require pre-
construction notification only for section 10 activities, since Clean
Water Act authorization for these structures is already provided
through the permit process under Section 402 of the Clean Water Act.
One commenter stated that construction and maintenance of outfall
structures should not include bank stabilization structures.
Outfall structures and associated intake structures require section
404 authorization if they involve discharges of dredged or fill
material into waters of the United States. Sections 404 and 402 of the
Clean Water Act address different types of discharges. In addition, the
permitting criteria under section 404 differ from those of section 402.
In addition, some activities authorized by this NWP may be exempt from
section 402 permit requirements. The pre-construction notification
requirement is necessary to ensure that activities authorized by this
NWP will have no more than minimal adverse impacts to the aquatic
environment. Bank stabilization activities are not authorized by this
NWP but may be authorized by NWP 13 or other types of permits.
One commenter suggested adding a provision to require intake
structures constructed for withdrawing cooling water to adhere to
requirements contained in Section 316(b) of the Clean Water Act.
Another commenter suggested that this NWP should include a reference to
the U.S. Environmental Protection Agency's section 316(b)
implementation initiative and require incorporation of Best Technology
Available methods developed from this initiative. This commenter also
said that intake structures should utilize passive screens with
openings not to exceed one centimeter (or one millimeter in waters
[[Page 11105]]
having anadromous fish), with a maximum intake velocity of 0.5 feet per
second.
Section 316(b) of the Clean Water Act is implemented through (and
only applies to) permits issued pursuant to Section 402. Thus, any
structure that is in compliance with regulations issued under the NPDES
program (Section 402) must also be in compliance with regulations
issued under Section 316(b). Specific suggestions regarding technology
choices for intake structures are more appropriately addressed through
other permit authorities, such as the 402 program. Activities
authorized by this NWP may require other Federal, State, or local
permits or licenses.
One commenter suggested adding modifications of existing intakes as
an authorized activity, for cases where intake structure modifications
are required by rules recently promulgated under Section 316(b) of the
Clean Water Act. Another commenter recommended adding a note to refer
applicants to NWP 3 for future maintenance activities.
In the first sentence of this NWP, we have added the phrase ``or
modification'' after the word ``construction. It is important to note
that this NWP only authorizes the construction or modification of
intake structures that are associated with outfall structures. This
would include cooling water intake structures where the heated cooling
water is subsequently discharged back into the waterbody from which is
was withdrawn. Adding a note referencing NWP 3 for future maintenance
activities is inappropriate, since there may be outfall structure
maintenance activities that do not qualify for NWP 3 authorization.
One commenter requested clarification that this NWP authorizes only
those activities that require permits under Section 404 of the Clean
Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. This
commenter said that the current text of this NWP indicates that all
outfall and associated intake structures that require section 402
permits would also require an NWP authorization.
This NWP authorizes outfall structures and associated intake
structures that require authorization under Section 404 of the Clean
Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. If
the construction or modification of an outfall structure or associated
intake structure that requires a section 402 permit does not involve
discharges of dredged or fill material into waters of the United States
or structures or work in navigable waters of the United States, then a
Corps permit is not required.
One commenter recommended conditioning this NWP to require intake
structures to be marked in a manner that will reduce hazards to
navigation during and after construction. Another commenter said that
this NWP should not authorize dredging operations during fish spawning
seasons. One commenter said that this NWP should prohibit the
stockpiling of excavated materials where sediment may erode to surface
waters. A commenter asserted this NWP should be conditioned to prohibit
exposure of surface waters to wet concrete, which may be toxic to
aquatic organisms.
General condition 1 states that any safety lights and signals
prescribed by the U.S. Coast Guard, through regulations or otherwise,
must be installed and maintained. This condition adequately addresses
potential hazards to navigation. Maintenance dredging associated with
outfall structures and their intake structures may be authorized by NWP
3 or another type of permit. General condition 3 states that activities
in spawning areas that occur during the spawning seasons must be
avoided to the maximum extent practicable. General condition 12
addresses requirements for soil erosion and sediment controls. Although
concrete may be toxic under certain circumstances, it is generally not
considered to have toxic pollutants present in toxic amounts.
Therefore, its use is not generally prohibited by general condition 6,
Suitable Materials.
One commenter said that agency coordination should be required for
the construction of intake structures, because those structures may
impinge and entrain larval fish.
We do not believe it is necessary to require agency coordination
for the construction of intake structures. For cooling water intake
structures, this issue is already addressed by the Section 402 program.
For other types of intakes, it would be more appropriate to address
concerns regarding the impingement and entrainment of larval fish
through regional conditions or special conditions. Division and
district engineers, in consultation with resource agencies, can develop
species-specific regional or special conditions to protect larval fish.
This NWP is reissued with the modification discussed above.
NWP 8. Oil and Gas Structures on the Outer Continental Shelf. We
proposed to clarify that pre-construction notification is required for
all activities authorized by this NWP. No comments were received. This
NWP is reissued as proposed.
NWP 9. Structures in Fleeting and Anchorage Areas. There were no
changes proposed for this NWP. One commenter said that moorage
structures may preclude the continued exercise of Tribal fishing
rights. This commenter also asked that the Corps consult with Indian
Tribes that utilize these areas for fishing, and requested that pre-
construction notification be required for all activities authorized by
this NWP.
General condition 16 states that NWP activities cannot impair
reserved tribal rights. Division and district engineers can consult
with Tribes to develop regional conditions that will further ensure
that tribal rights are not impaired by this NWP. Division engineers can
regionally condition this NWP to require coordination with Tribes when
proposed activities may affect Tribal lands or trust resources.
The NWP is reissued without change.
NWP 10. Mooring Buoys. There were no changes proposed for this NWP.
One commenter stated that individual mooring buoys can interfere with
the exercise of Tribal fishing rights and should not be authorized by
NWP. This commenter also said that pre-construction notification should
be required for all activities authorized by this NWP, and the Corps
should consult with Indian Tribes with usual and accustomed fishing
grounds. Another commenter suggested limiting mooring buoys to areas
outside of Federal navigation channel or dredged material placement
areas.
General condition 16 states that NWP activities cannot impair
reserved tribal rights. Division and district engineers can consult
with Tribes to develop regional conditions that will ensure that tribal
fishing rights are not impaired by activities authorized by this NWP.
District and division engineers will consider the need to add regional
conditions or case-specific conditions where necessary to protect
tribal rights. Prohibiting the placement of mooring buoys in Federal
navigation channels or dredged material placement areas is not
desirable. There are occasions where it may be appropriate to place
mooring buoys in these areas on a permanent or temporary basis, where
the adverse effects on navigation and other public interest review
factors are minimal. Mooring buoys authorized by this NWP must comply
with general condition 1, Navigation. Division engineers may also add
regional conditions to this NWP to prohibit the placement of mooring
buoys in certain Federal navigation channels or other areas of concern.
The NWP is reissued without change.
[[Page 11106]]
NWP 11. Temporary Recreational Structures. There were no changes
proposed for this NWP. One commenter suggested that temporary buoys,
markers, small floating docks, and similar structures can interfere
with the exercise of treaty fishing access and, therefore, in an area
subject to treaty fishing, notification to affected tribes is required.
The commenter further stated that regional conditions should be added
to require that such structures shall be removed from salmon spawning
areas prior to commencement of the spawning season. Another commenter
suggested that temporary recreation structures may come into conflict
with Tribal fisheries and that pre-construction notification should be
required. In addition, consultation with Indian Tribes with usual and
accustomed fishing grounds in the area should also be conducted.
This NWP cannot authorize any activity that may impair reserved
tribal rights, including, but not limited to, reserved water rights and
treaty fishing and hunting rights (see general condition 16). District
and division engineers will consider the need to add regional
conditions or case-specific conditions where necessary to protect such
tribal rights.
One commenter recommended conditioning the NWP to require temporary
recreation structures to be removed within seven days after the use has
been discontinued, instead of the 30 days specified in the NWP. One
commenter asserted that the required approval from the reservoir
manager should be in writing.
Shorter time periods for removal can be imposed through regional
conditioning, or through special conditions provided in NWP
verifications. The process for approving buoys or markers at Corps of
Engineers reservoirs is at the discretion of the reservoir manager.
The NWP is reissued without change.
NWP 12. Utility Line Activities. We proposed to modify this NWP by
removing the provisions authorizing the construction of permanent and
temporary access roads and simplifying the pre-construction
notification thresholds. Several commenters supported all proposed
changes to this NWP.
One commenter recommended modifying this NWP to explicitly include
utility line relocation, in addition to utility line construction,
maintenance, and repair. Two commenters suggested reducing the
authorized duration of temporary sidecasting. One of these commenters
said that four weeks is sufficient time for temporary sidecasting, and
the other commenter recommended a time limit of 30 days. One commenter
said that this NWP should require all trenched material to be returned
to the trench as backfill, not just the upper 6 to 12 inches, to
sustain groundwater hydrology and prevent drainage of wetlands and
other waters of the United States. One commenter requested that total
impacts at the site be limited to \3/10\ acre.
This NWP authorizes the relocation of utility lines, which is
covered by the construction, maintenance, and repair activities
authorized by this NWP. We believe that three months is an appropriate
time frame for temporary sidecasting of excavated material into waters
of the United States. Division engineers can regionally condition this
NWP to reduce the authorized period of temporary sidecasting, to
further ensure minimal adverse effects. In response to a pre-
construction notification, district engineers can add special
conditions to the NWP authorization to reduce the length of time
temporary sidecasting is authorized. We do not agree that it is
necessary to require that all trenched material be returned to the
trench to maintain pre-construction hydrology. The NWP explicitly
prohibits backfilling the trench in a manner that would result in a
french drain effect, and drain nearby waters. We believe the 1/2 acre
limit for this NWP is sufficient to ensure that it authorizes only
those activities that result in minimal individual and cumulative
adverse effects on the aquatic environment. This limit applies to the
total discharges associated with the single and complete project.
Several commenters supported the proposed pre-construction
notification thresholds for this NWP, stating that they are simpler
than the current thresholds and would capture many of those utility
line activities that required pre-construction notification under the
2002 NWP. A couple of commenters recommended retaining the pre-
construction notification thresholds of the NWP 12 issued in 2002. A
number of commenters said that the pre-construction notification for
temporary losses of greater than \1/10\ acre of water of the United
States should be eliminated. Some of these commenters stated that this
pre-construction notification threshold is confusing, because it is not
consistent with the definition of ``loss of waters of the United
States.'' Other commenters recommended changing the phrasing of this
pre-construction notification threshold from ``temporary loss'' to
``temporary impact'' to provide consistent terminology for the NWPs.
Several commenters said that the \1/10\ acre pre-construction
notification threshold for temporary losses should be eliminated,
because it is not necessary to ensure minimal adverse effects and it is
not consistent with the pre-construction notification thresholds of
other NWPs. One commenter indicated that the pre-construction
notification threshold for temporary losses would result in a dramatic
increase in the numbers of pre-construction notifications submitted to
the Corps. Another commenter stated that this pre-construction
notification threshold would remove incentives for project proponents
to minimize temporary impacts. Several commenters said that requiring
pre-construction notifications for temporary losses greater than \1/10\
acre would increase the number of wetland delineations required to be
submitted with those notifications.
One commenter asked if an activity resulting in impacts of \1/10\
acre or less to special aquatic sites, including wetlands, would
require pre-construction notification. Another commenter said that
there may be utility line activities resulting in the loss of less than
\1/10\ acre that may result in more than minimal adverse effects on the
aquatic environment. One commenter objected to the removal of the pre-
construction notification requirement for activities that include
mechanized landclearing of forested wetlands, stating that this may
result in significant habitat loss of forested wetlands and a
significant permanent loss of forested wetland functions. One commenter
recommended requiring pre-construction notifications for activities
that may impact fish passage.
We are restoring the pre-construction notification thresholds that
were in the NWP 12 issued in 2002, so that district engineers will be
able to conduct case-by-case review for certain utility line activities
that have the potential to result in more than minimal adverse effects
on the aquatic environment. Pre-construction notification will be
required if any of the following criteria are met: (1) The activity
involves mechanized land clearing in a forested wetland for the utility
line right-of-way; (2) a section 10 permit is required; (3) the utility
line in waters of the United States, excluding overhead lines, exceeds
500 feet; (4) the utility line is placed within a jurisdictional area
(i.e., water of the United States), and it runs parallel to a stream
bed that is within that jurisdictional area; (5) discharges that result
in the loss of greater than \1/10\-acre of waters of the United States;
(6)
[[Page 11107]]
permanent access roads are constructed above grade in waters of the
United States for a distance of more than 500 feet; or (7) permanent
access roads are constructed in waters of the United States with
impervious materials. Discharges resulting in temporary losses of
waters only will no longer trigger a pre-construction notification
requirement, unless they trigger one of the criteria above.
Division engineers can regionally condition this NWP to require
pre-construction notification for other utility line activities, if
there are concerns for the aquatic environment or public interest that
warrant lower pre-construction notification thresholds, such as
endangered or threatened species, or impacts to forested wetlands.
General condition 2, Aquatic Life Movements, requires permittees to not
disrupt necessary life cycle movements of aquatic organisms, such as
fish.
Several commenters requested that the definition of single and
complete project, as applied to utility line projects, be modified to
state that the \1/10\ acre pre-construction notification threshold
applies to the entire utility line and not to each separate water or
wetland crossing.
The requirement to submit a pre-construction notification for those
utility line activities listed in the ``Notification'' paragraph of
this NWP applies to a single and complete project, as defined at 33 CFR
330.2(i). In the case of a utility line, a single and complete project
consists of a single crossing of a water of the United States, or more
than one crossing at the same location (see the definition of ``single
and complete project'').
Several commenters expressed opposition to the proposed removal of
access roads from this NWP, especially the construction of temporary
access roads, which would require authorization under NWP 33 and
require pre-construction notification for all activities. One commenter
supported the use of NWPs 14 and 33 for utility line access roads,
because it would provide greater flexibility in the locations where
these roads could be built. Most of these commenters expressed concern
that requiring pre-construction notification for all temporary access
road construction activities will significantly increase the regulatory
burdens on permittees and most likely cause substantial delays in
utility line projects. One commenter said that access roads should be
retained in this NWP, with a \1/2\ acre limit for the utility lines and
a \1/2\ acre limit for the access road. Several commenters stated that
requiring authorization of permanent access roads through NWP 14 could
result in impacts greater than \1/2\ acre at the site of a single and
complete project. One commenter said that utility line substations
should be authorized by another NWP, because these facilities can be
constructed at a more distant location from the utility line.
After considering these comments, as well as the probable negative
effects that this proposed change would have on essential services such
as the distribution of energy to the public, we have decided to retain
authorization of permanent and temporary access roads in NWP 12. We
have added a paragraph to authorize access roads, using language from
the NWP 12 issued in 2002. We are also putting Note 2 back into this
NWP. This note states that access roads used for both construction and
maintenance are authorized by this NWP. This note has been adapted from
the NWP 12 issued in 2002, but revised to clarify that temporary access
roads may be authorized by NWP 12, provided the area is restored to
pre-construction elevations and revegetated as appropriate. To address
concerns about temporary impacts to waters of the United States
associated with utility line activities, we are adding explicit
requirements to remove all temporary fills in their entirety, return
affected areas to pre-construction elevations, and revegetate affected
areas as appropriate.
The \1/2\ acre limit for this NWP applies to each single and
complete utility line activity. There are not separate acreage limits
for utility lines and access roads. Retaining authorization of access
roads in this NWP, as well as authorization for utility line
substations, will help provide effective authorization for utility line
activities.
One commenter recommended reformatting this NWP to be consistent
with other NWPs. Another commenter suggested that the phrase ``provided
the activity does not result in the loss of greater than \1/2\ acre of
those waters'' be deleted, since the \1/2\ acre limit is indicated in
the first paragraph of this NWP. One commenter said that mitigation
should be required for all NWP activities. Another commenter stated
that the NWP should clarify that mitigation banks may be used to
provide compensatory mitigation for permanent adverse effects
authorized by this NWP.
The format of this NWP need not be consistent with the other NWPs,
because of the authorized activities. We are retaining the reference to
the \1/2\ acre limit in the paragraph that authorizes utility line
substations, to make it clear that any losses associated with this
activity are included in the \1/2\ acre limit. A similar reference to
the \1/2\ acre limit is also provided in the paragraph authorizing
access roads. Mitigation requirements for this NWP will be established
in accordance with general condition 20, Mitigation. This general
condition states that mitigation banks may be used to provide
compensatory mitigation for activities authorized by NWPs.
One commenter suggested adding language to this NWP that would
require sand and gravel excavated from a lake bed during trench
excavation to be temporarily sidecast in a manner such that it would
not be buried by material with finer grain sizes. Another commenter
stated that this NWP should not be used to authorize utility line
activities in streams that support salmon.
Concerns for potential impacts to lake substrate are more
appropriately addressed through either the special conditions added to
an NWP authorization by the district engineer, or by regional
conditioning of the NWP by division engineers. Potential impacts to
salmon are also more appropriately addressed through regional
conditions or the review of pre-construction notifications, including
the district engineer's use of discretionary authority and the addition
of special conditions to the NWP authorization.
One commenter said that this NWP should be conditioned to require
placement of the utility line in the right-of-way of existing or
proposed roads or at the narrowest section of wetlands or streams. This
commenter also stated that the number of stream crossings should be
limited to the minimum necessary.
These concerns are addressed by general condition 20, Mitigation,
which requires avoidance and minimization on the project site to the
maximum extent practicable. It is not appropriate to condition this NWP
to require utility lines to be placed in existing rights-of-way or at
the narrowest sections of waters of the United States. Often it is not
feasible to limit utility lines to these areas, and practicable
alternatives are usually rather limited. Many utility lines need to be
installed in areas without roads.
One commenter said that this NWP should require communication or
power poles to be upgraded to current standards to avoid detrimental
impacts to migratory birds. This commenter also stated that this NWP
should not authorize wind generating turbines.
Design requirements for communication or power poles relative to
migratory birds are more appropriately addressed through other
[[Page 11108]]
regulatory programs. Wind generating turbines are not considered to be
utility lines. To the extent that the construction of wind generating
turbines requires Department of the Army authorization, those
activities may be authorized by individual permits, regional general
permits, or other NWPs (e.g., NWP 25).
NWP 12 is reissued with the modifications discussed above.
NWP 13. Bank Stabilization. We proposed to modify this NWP to
authorize bank stabilization activities in special aquatic sites,
provided the prospective permittee submits a pre-construction
notification.
Several commenters expressed support for the proposed changes to
this NWP. Several commenters stated that this NWP will result in more
than minimal adverse effects to the aquatic environment, particularly
for headwater streams, and that individual permits should be required
for these activities. Other commenters stated that the linear limits of
this NWP should be reduced and that the waivers to the linear foot and
cubic yard limits should be removed to ensure that the NWP authorizes
only those activities with minimal adverse effects on the aquatic
environment. Several commenters stated that bank stabilization projects
in excess of 500 feet or involving more than one cubic yard per running
foot should be evaluated as individual permits, with opportunity for
public review.
The terms and conditions of this NWP, especially the pre-
construction notification requirements, will help ensure that this NWP
authorizes only those activities that result in minimal individual and
cumulative adverse effects on the aquatic environment. The 500 linear
foot and the one cubic yard limits must be waived in writing by the
district engineer, or the NWP cannot be used to authorize activities
that exceed these limits. Bank stabilization activities are often
necessary to help protect property, as well as water quality. In
response to a pre-construction notification the district engineer can
add special conditions to the NWP authorization to ensure minimal
adverse effects, or exercise discretionary authority and require
another type of permit, such as an individual permit, for the activity.
Division engineers can regionally condition this NWP to protect high
value waters and other important resources.
One commenter recommended modifying the text of this NWP to clarify
that authorized activities are not limited to rivers and streams, but
that this NWP can also be used in coastal areas. Several commenters
stated that this NWP should not authorize impacts to special aquatic
sites. One commenter recommended requiring a written waiver from the
district engineer to authorize discharges of dredged or fill material
into special aquatic sites. A few commenters said that mitigation
should always be required for activities authorized by this NWP.
This NWP can be used to authorize bank stabilization activities in
all waters of the United States, including rivers, streams, and coastal
areas. We do not believe it is necessary to modify the text of this NWP
to list the types of waterbodies in which it can be used. Because many
streams include or are bordered by special aquatic sites, precluding
use of this permit in these areas significantly limits its usefulness.
It may be beneficial to watersheds to stabilize eroding banks, even
though small amounts of fringe wetlands or mudflats may be impacted by
a bank stabilization activity. Therefore, bank stabilization activities
involving discharges of dredged or fill material into special aquatic
sites may be authorized by this NWP but pre-construction notification
is required for all such activities, which will provide an opportunity
for the district engineer to review those activities to ensure that any
adverse effects on the aquatic environment are minimal. For additional
assurance, we have added a new paragraph (d) to require a written
waiver from the district engineer if the activity involves discharges
of dredged or fill material into special aquatic sites. If a written
waiver is not issued by the district engineer, then this NWP does not
authorize such discharges. In response to a pre-construction
notification, the district engineer will exercise discretionary
authority if the proposed bank stabilization activity is in a special
aquatic site and will result in more than minimal adverse effects on
the aquatic environment. Division engineers may also regionally
condition this NWP to prohibit discharges of dredged or fill material
into special aquatic sites, where there are concerns for the aquatic
environment or other public interest review factors.
We do not believe compensatory mitigation should be required for
all bank stabilization activities. In cases where the bank
stabilization activity affects a special aquatic site, it may be
appropriate for the district engineer to require compensatory
mitigation. For bank stabilization activities in other waters of the
United States, the district engineer may determine that it is not
necessary to require compensatory mitigation.
Several commenters stated that pre-construction notification should
be required for all activities authorized by this NWP. One commenter
suggested adding language to clarify that any requests for waivers of
limits for this NWP would be approved or denied during the 45-day pre-
construction notification review period. Another commenter requested
that additional language be added to the text of the NWP to clarify
that bank stabilization activities are authorized unless prohibited by
the district engineer following review of the pre-construction
notification.
We do not agree that it is necessary to require pre-construction
notification for all activities authorized by this NWP. Many small bank
stabilization activities are conducted each year that result in minimal
adverse effects on the aquatic environment. We have modified paragraph
(a)(2) of general condition 27 to clarify that NWP activities that
require written waivers of limits are not authorized unless the
district engineer issues the written waiver. In other words, a default
NWP authorization does not occur after 45 days if the proposed activity
requires a written waiver. The modification to general condition 27 is
sufficient to address this concern, and it is not necessary to modify
the text of this NWP. In the case of this NWP, all activities that
require a pre-construction notification also require a written waiver.
The Corps will do its best to process requests for such waivers within
45 days.
One commenter stated that this NWP should not be used to authorize
bank stabilization activities in waters of the United States inhabited
by anadromous fish. One commenter stated that use of wood in bank
stabilization projects may interfere with tribal rights, such as treaty
fishing access, and therefore affected tribes should be notified of
requests to use this NWP. Several commenters said interagency
coordination should be conducted on all NWP 13 pre-construction
notifications.
Division engineers can regionally condition this NWP to restrict or
prohibit its use in waters inhabited by anadromous fish. General
condition 16, Tribal Rights, states that activities authorized by NWP
cannot impair reserved treaty rights. Division and district engineers
should consult with Tribes to develop regional conditions where
necessary to ensure that tribal rights are adequately protected by this
NWP. Division engineers can regionally condition this NWP to require
coordination with Tribes when proposed NWP activities may affect Tribal
lands or trust resources. General
[[Page 11109]]
condition 27, Pre-Construction Notification, sets out the requirements
and procedures for interagency coordination for all NWPs; we do not
believe additional requirements are necessary for this permit.
A number of commenters requested clarification as to whether the
linear and running foot limits in this NWP are applicable to the length
of the bank or the length of the stream channel. Several commenters
stated that the prohibition against stream channelization should be
retained, while others recommended that it be removed because many bank
stabilization activities could be considered stream channelization
projects. One commenter stated that this NWP should not be used to
authorize hardening of bank surfaces. A number of commenters also
stated NWP 13 should only authorize vegetative or bioengineered
stabilization methods and not bank hardening methods. One commenter
recommended modifying this NWP to encourage bioengineered methods, or
placement of riprap above the ordinary high water mark or high tide
line, by not requiring pre-construction notification for such
activities. Two commenters said that this NWP should be limited to
bioengineering, living shoreline, or vegetative bank stabilization
techniques, and that individual permits should be required for bank
stabilization activities involving the placement of rip-rap and other
hard armoring techniques.
The linear foot and cubic yard limits apply to the length of the
bank. We have modified paragraph (b) of this NWP to clarify that the
500 linear foot limit applies to the length of the bank stabilization
activity, not the length of the stream segment. We are retaining
paragraph (g), since stream channelization activities may result in
more than minimal adverse effects on the aquatic environment. Bank
stabilization activities differ from stream channelization activities
in several ways. Bank stabilization reduces or eliminates erosion to
prevent the loss of structures or adjacent property, and typically only
one side of a stream is stabilized. The location and cross-section
shape of the waterway is generally unaffected except for material
placed along the stabilized bank. Stream channelization alters the
length, location, and/or cross section shape of a stream channel.
Stream channelization changes the hydraulic flow characteristics of the
stream, reduces channel complexity and diversity, and can include bank
stabilization on one or both banks of the channelized waterway. Stream
channelization substantially reduces natural stream functions, while
bank stabilization by itself does not.
We do not agree that this NWP should be limited to vegetative or
bioengineering techniques. In many areas, those techniques will not
provide adequate protection to the bank, especially in those waters
where banks are subjected to substantial wave energy, such as coastal
shorelines. In those areas, hard bank stabilization techniques may be
the only feasible option. The pre-construction notification
requirements in this permit apply to specific situations not directly
related to the type of bank stabilization used (e.g., hard or
vegetative). We do not believe that the use of bank hardening methods,
in and of itself, requires a pre-construction notification, nor do we
believe that pre-construction notification requirements should be
waived simply because a project that exceeds the 500 foot or one cubic
yard limit, or that involves discharges into special aquatic sites,
uses vegetative or bioengineering techniques. However, for such
projects, the use of more environmentally friendly methods may well be
a factor in the district engineer's decision regarding whether or not
to grant the requested waiver.
One commenter suggested that in order to make the one cubic yard
per running foot limit more practical for bank construction methods in
streams of significant size, this limit should only apply to the amount
of material placed from the ordinary high water mark to the streambed,
and not to anything below or above those planes. Alternatively, the
commenter suggested that this limit could be adjusted to increase
proportionally with increasing channel depth at the ordinary high water
mark, so that stream magnitude is taken into account. One commenter
indicated that the language limiting the placement of erodible material
may discourage plantings on riprap, since the soil used for those
plantings could be washed away during high flows. One commenter said
that NWP 13 should not be used with other permits. Another commenter
suggested that this NWP be conditioned to prohibit the use of waste
concrete for bank stabilization material, since it may adversely affect
the environment. One commenter recommended modifying paragraph (d) (now
designated as paragraph (e)) to state that the placement of material
may not impair surface water flow into or out of any water of the
United States. In the September 26, 2006, Federal Register notice, this
paragraph referred only to wetlands.
The cubic yard limit for this NWP, along with the waiver provision,
is adequate to provide flexibility while protecting the aquatic
environment and ensuring that authorized activities result in minimal
adverse effects. We are retaining the language in paragraph (a), to
help protect water quality. Bank stabilization projects involving the
installation of plant materials on riprap may be authorized by this
NWP, but erodible materials should be properly stabilized within the
riprap or stabilized by other means. This NWP can be used with other
NWPs to authorize single and complete projects that result in minimal
individual and cumulative adverse effects on the aquatic environment,
provided the permittee complies with general condition 24, Use of
Multiple Nationwide Permits. General condition 6, Suitable Material,
addresses the use of suitable material for discharges of dredged or
fill material into waters of the United States. This general condition
prohibits the use of materials that contain toxic pollutants in toxic
amounts. We have modified paragraph (e) by replacing the word
``wetland'' with ``water of the United States'' to help ensure that
surface water flows are maintained.
This NWP is reissued with the modifications discussed above.
NWP 14. Linear Transportation Projects. We proposed to modify this
NWP to limit stream channel modifications to the minimum necessary to
protect the linear transportation project and state that the NWP does
not authorize temporary construction, access, and dewatering activities
necessary to construct the linear transportation project.
Several commenters supported our proposal to change the first
sentence of this NWP to refer to ``linear transportation projects''
instead of ``linear transportation crossings.'' One commenter said that
this sentence should be consistent with the definition of ``single and
complete project.''
We are retaining the proposed language in the first sentence of
this NWP. However, in the case of linear transportation projects, a
``single and complete project'' consists of a single crossing of a
water of the United States, or more than one crossing at the same
location (see the definition of ``single and complete project'').
One commenter recommended reducing the acreage limit to \1/3\ acre.
One commenter said that this NWP should not be used in tidal waters.
Another commenter stated there should be a condition requiring culverts
to allow for unimpeded upstream and downstream passage of fish as well
as
[[Page 11110]]
the passage of substrate and wood expected to be carried by 100 year
flow events.
We do not agree that it is necessary to reduce the acreage limit to
\1/3\ acre for all activities authorized by this NWP. The \1/2\ acre
limit for losses of non-tidal waters and the \1/3\ acre limit for
losses of tidal waters, in addition to the pre-construction
notification requirements and other general conditions, will ensure
that this NWP authorizes linear transportation projects that result in
minimal adverse effects on the aquatic environment. General condition
2, Aquatic Life Movements, states that no activity may disrupt the
necessary life cycle movements of aquatic species, including those
species that normally migrate through the area. General condition 9,
Management of Water Flows, states that, to the maximum extent
practicable, the activity must not restrict or impede the passage of
normal or high flows, unless the primary purpose is to impound water.
A large number of commenters objecting to the removal of the
language regarding authorization of temporary construction, access, and
dewatering activities necessary to construct the linear transportation
project, because NWP 33 requires pre-construction notification for all
activities. One commenter suggested that the Corps expressly state that
all activities authorized previously under this NWP remain authorized.
We have decided not to remove the language authorizing the
temporary construction, access, and dewatering activities from this
NWP. In addition, we have added a new paragraph to this NWP to help
ensure that temporary impacts associated with NWP 14 activities are
minimized, and that temporary fills are removed and affected areas are
returned to pre-construction elevations and revegetated as appropriate.
One commenter said that this NWP should not authorize the
construction of new transportation or spur projects, because potential
future development activities might occur after the transportation
project is constructed. One commenter stated that the NWP should be
applicable only to the expansion, modification or improvement of
existing linear transportation projects. One commenter recommended
modifying the pre-construction notification thresholds to clarify
whether temporary losses require pre-construction notification.
This NWP authorizes the construction, expansion, modification, or
improvement of linear transportation projects that result in minimal
individual and cumulative adverse effects on the aquatic environment.
It does not prohibit new projects simply because there may be future
development activities. It would be impractical to condition use of
this NWP on consideration of hypothetical effects of potential future
activities. Such effects will be addressed through applicable
permitting requirements if and when future activities are proposed.
The acreage-based pre-construction notification threshold applies
only to permanent losses of waters of the United States. However, pre-
construction notification is also required for any discharges of
dredged or fill material into special aquatic sites, whether those
discharges are permanent or temporary.
One commenter stated that this NWP should not authorize bridge
footings, because they result in a significant impact to stream habitat
and that edge habitat is lost to hardened banks. One commenter asked
whether this NWP authorizes cul-de-sacs and hammerhead turnarounds.
Bridge footings are necessary to construct certain types of linear
transportation projects, and they usually result in minimal adverse
effects on the aquatic environment. The pre-construction notification
thresholds for this NWP will ensure that district engineers will review
those activities with bridge footings that have the potential to result
in more than minimal adverse effects on the aquatic environment. Bridge
footings are generally confined to narrow stream segments, so only
small amounts of edge habitat will be lost as a result of the
construction of a bridge footing. In addition general condition 3,
Spawning Areas, prohibits the physical destruction of important
spawning areas that could result from these activities. Discretionary
authority will be asserted in those cases where the construction of
bridge footings will result in more than minimal individual and
cumulative adverse effects on the aquatic environment. Cul-de-sacs and
hammerhead turnarounds may be authorized by this NWP, as they are part
of the street network used for transportation.
Another commenter recommended adding storm water management
features to the list of examples of activities authorized by this NWP.
One commenter requested clarification as to whether stream
modifications, encroachments, and relocations associated with highway
construction are authorized. We received several comments on the
proposed language limiting stream channel modifications to the minimum
necessary to construct or protect linear transportation projects. One
commenter objected to the proposal, stating that it would limit public
transportation safety requirements by adding unnecessary restrictions.
Storm water management features are authorized by this NWP,
provided they are integral features of the linear transportation
project. If they are not, then they may be authorized by NWP 43,
regional general permits, or individual permits. Stream channel
modifications are authorized by this NWP provided they are minimized
and conducted in the immediate vicinity of the project. Otherwise, they
require authorization under another NWP, a regional general permit, or
an individual permit. This provision allows most linear transportation
projects to use this NWP while ensuring that they result in minimal
adverse effects on the aquatic environment.
Two commenters requested further clarification on the meaning of
the phrase ``minimum necessary.'' Another commenter recommended
modifying this NWP to require these activities to result in no changes
to the course or hydrology of streams.
The phrase ``minimum necessary'' refers to minimizing the loss of
waters of the United States needed to protect the project. This is
determined based on case specific circumstances such as the
environmental setting and the nature of the project. General condition
9, Management of Water Flows, requires maintenance of the course,
condition, capacity, and location of open waters, such as streams, to
the maximum extent practicable. The construction of linear
transportation projects over streams usually results in some
unavoidable changes to stream morphology, but the conditions of the NWP
authorization require such impacts to be minimized to the maximum
extent practicable.
Three commenters recommended adding a 300 linear foot limit to this
NWP, and another commenter suggested a 2,000 linear foot limit. One
commenter recommended a 200 linear foot limit.
This NWP does not have a linear foot limit for stream bed impacts.
Instead, the acreage limits for this NWP are sufficient to ensure that
this NWP authorizes only those activities that result in minimal
individual and cumulative adverse effects on the aquatic environment. A
200 linear-foot limit was previously removed from NWP 14 to eliminate
varied interpretations and to simplify the basis for use of the permit.
This NWP is reissued with the modifications discussed above.
[[Page 11111]]
NWP 15. U.S. Coast Guard Approved Bridges. There were no changes
proposed for this NWP. One commenter asked why this permit only applies
to U.S. Coast Guard approved bridges and not all bridges. The commenter
suggested that the Corps simplify the permit by revising it to include
construction, repair, seismic retrofit, or widening of any bridge,
regardless of whether it spans navigable waters. Another commenter
suggested modifying this NWP to allow the use of another NWP to
authorize the causeways and approach fills.
The authority to authorize bridges or causeways across navigable
waters of the United States is held by the U.S. Coast Guard. This NWP
provides authorization under Section 404 of the Clean Water Act for
discharges of dredged or fill material into waters of the United States
associated with the construction of those bridges. The construction,
repair, seismic retrofit, or widening of these bridges must be approved
by the U.S. Coast Guard. The environmental review conducted by the U.S.
Coast Guard during its authorization process will normally suffice for
those related activities that require the section 404 authorization
provided by this NWP. District engineers can exercise discretionary
authority when the adverse effects to the aquatic environment may be
more than minimal. Bridges constructed across section 404 waters may be
authorized by NWP 14, a regional general permit, or an individual
permit. For the purposes of clarification, the last sentence of this
NWP is revised to read as follows: ``Causeways and approach fills are
not included in this NWP and will require a separate Section 404
permit.''
This NWP is reissued with the modification discussed above.
NWP 16. Return Water From Upland Contained Disposal Areas. We
proposed to rearrange the text of this NWP so that it will be
consistent with the format of the other NWPs. No substantive changes
were proposed to the text of the NWP. One commenter recommended that
the permit require the issuance of a National Pollutant Discharge
Elimination System permit under Section 402 of the Clean Water Act, in
case the return water contains pollutants entrained in the dredged
material. This commenter expressed concern that the discharge would not
be properly considered through the water quality certification process
under Section 401 of the Clean Water Act. One commenter said that the
last sentence should be modified to acknowledge that incidental
fallback would not require a section 404 permit.
Return water from upland contained disposal areas is
administratively defined as a discharge of dredged or fill material
subject to section 404. Therefore, section 401 water quality
certification is the appropriate process for determining whether the
discharges associated with the return water comply with the appropriate
water quality standards. It is not necessary to qualify the citation of
33 CFR 323.2(d). District engineers will use that definition to
determine whether section 404 permits are required for dredging
activities. We believe that the inclusion of the citation provides a
more complete description of activities that may constitute a discharge
of dredged material.
The NWP is reissued without change.
NWP 17. Hydropower Projects. We proposed to rearrange the text of
this NWP, without modifying any of its terms or its scope. One
commenter stated that the NWP should not apply to hydropower projects
exempt from Federal Energy Regulatory Commission licensing
requirements. This commenter remarked that an individual permit should
be required to ensure that impacts to aquatic resources are evaluated.
We are retaining the applicability of this NWP to hydropower
projects that are exempt from the licensing requirements of the Federal
Energy Regulatory Commission. We believe the pre-construction
notification process will provide adequate means for district engineers
to assess the impacts to the aquatic environment and, if necessary,
exercise discretionary authority and require an individual permit for a
particular activity. In addition, division and district engineers will
condition such activities where necessary to ensure that these
activities will have no more than minimal adverse effects on the
aquatic environment, individually and cumulatively.
The NWP is reissued as proposed.
NWP 18. Minor Discharges. We proposed 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.
Several commenters expressed support for the proposed revisions. A
few commenters said that this NWP does not comply with the ``similar in
nature'' requirement for general permits. Other commenters asserted
that the cumulative impacts resulting from the use of this NWP would
not be minimal. Another commenter said that this NWP should not
authorize discharges into waters inhabited by species of anadromous
salmon.
We believe that the minor scope and nature of the types of
discharge activities authorized by this NWP are sufficient to establish
that the activities are similar in nature. We also maintain that the
discretion vested in district engineers to issue case-specific special
conditions, including requirements for appropriate and practicable
mitigation, coupled with the ability of division engineers to impose
regional conditions for certain activities will ensure minimal adverse
effects on the aquatic environment, individually and cumulatively. We
disagree that activities in areas accessible to anadromous salmonids
will necessarily result in more than minimal impacts. Permittees must
adhere to all applicable NWP general conditions including general
condition 2, Aquatic Life Movements, and general condition 3, Spawning
Areas. The terms and conditions of this NWP, as well as the ability for
district engineers to exercise discretionary authority, will help
ensure that the activities authorized by this NWP result in minimal
adverse effects to anadromous salmon.
Several commenters remarked that the wording of NWP 18 is confusing
and suggested clarifications be provided. One commenter stated the
language pertaining to ``losses'' is vague and suggested we clarify the
text by adding ``permanent'' losses.
We do not agree that additional modifications are necessary to
clarify the terms and conditions of this NWP. The proposed revisions to
the text of the NWPs were made to remove redundant language and
simplify the wording to make it clearer and more concise. The term
``loss of waters of the United States'' is defined in the
``Definitions'' section which explains that the loss of waters of the
United States includes the filled area and other waters that are
permanently adversely affected by flooding, excavation or drainage
because of the regulated activity. Therefore, we do not agree that
elaboration on the term ``losses'' within the text of this NWP is
warranted.
Some commenters objected to the \1/10\ acre limit as an unnecessary
administrative burden and unduly restrictive when coupled with the pre-
construction notification requirement.
We do not agree that the \1/10\ acre limit will result in an
unnecessary administrative burden or be unduly restrictive for the
regulated public. While we recognize that the \1/10\ acre threshold may
preclude use of this NWP for some activities, we have determined that
activities that result in loss of more than \1/10\ acre of waters of
the United States are not necessarily ``minor'' within the meaning of
this permit. We believe the reduced scope of the permit
[[Page 11112]]
is justified by the enhanced protection afforded to the aquatic
environment and will better ensure that authorized activities result in
no more that minimal effects.
Several commenters asserted that a 25 cubic yard threshold is
sufficient to ensure minimal adverse impacts on the aquatic
environment. One commenter suggested that the volume criteria reflect a
net total volume of discharge or excavation to allow for the management
of volumes greater than 25 cubic yards as long as the net total
discharged or excavated does not exceed 25 cubic yards.
The 25 cubic yard limit for excavating material, or discharging
dredged or fill material, below the plane of the ordinary high water
mark or high tide line is necessary to ensure that this NWP authorizes
only those activities with minimal individual and cumulative adverse
effects on the aquatic environment. Applying this 25 cubic yard limit
to net volumes may result in more than minimal adverse effects, because
it could allow substantially larger volumes of material to be excavated
or discharged. Excavation or discharges of greater than 25 cubic yards
in waters of the United States may be authorized by other types of
permits, including regional general permits and individual permits. The
language in the September 26, 2006, proposal also helps simplify the
implementation of this NWP, by providing clear, easily measured limits
and making it easier to enforce.
Another commenter suggested this NWP be simplified to authorize
only discharges of dredged or fill material and exclude excavation
activities in section 10 waters since the Corps does not regulate
excavation activities under section 404 that result only in incidental
fallback.
Excavation activities may result in discharges of dredged or fill
material into waters of the United States that require section 404
permits (see 33 CFR 323.2(d)). Therefore, it is not appropriate to
remove references to excavation from this NWP. Unless exempted under
Section 404(f) of the Clean Water Act, excavation activities in waters
of the United States that result in more than incidental fallback
require section 404 authorization. Minor discharges authorized under
NWP 18 often involve excavation activities that result in more than
incidental fallback and would therefore constitute a discharge that is
regulated under section 404.
One commenter recommended NWP 18 be specifically prohibited from
use for any new residential and commercial construction and that
impacts resulting from new residential or commercial development be
subject to NWPs 29 and 39, respectively.
This NWP authorizes minor discharges of dredged or fill material in
waters of the United States provided that the activity complies with
the specific terms and conditions of the NWP and all applicable NWP
general conditions. The applicability and verification of the use of
this NWP is at the discretion of district engineers based on case-
specific circumstances. Therefore, we believe it would be inappropriate
to prohibit its use for new residential and commercial development in
the absence of case-specific information. We note that the limits on
use of this permit are more restrictive than the limits on use of NWPs
29 and 39, so developers could only use this permit if their impacts
were smaller than those that could be potentially authorized by these
other NWPs.
One commenter recommended including language stating that the
discharge will not result in significant stream geomorphologic or
hydrologic alteration, and that the discharge will not be placed for
the purpose of, or result in, impeding navigation.
General condition 9, Management of Water Flows, requires
maintenance of the course, condition, capacity, and location of open
waters, such as streams, to the maximum extent practicable. Concerns
regarding potential impacts to navigation are addressed by general
condition 1, which states that no activity may cause more than minimal
adverse effects on navigation.
This NWP is reissued as proposed.
NWP 19. Minor Dredging. We proposed 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. One commenter supported the proposed change.
Another commenter said that the phrase ``including sites where
submerged aquatic vegetation is documented to exist but may not be
present in a given year'' is not appropriate and recommended that it be
removed. The commenter asserted that the Corps should not prohibit the
use of this NWP in areas where submerged aquatic vegetation was present
in the past, but there is no longer evidence that it is still present.
We are retaining this provision of the NWP, since areas where
submerged aquatic vegetation is documented to exist have a high
potential for those species to return to the area. In a given year,
poor water quality may prevent submerged aquatic vegetation from
inhabiting that area, but once water quality improves those plants may
grow back.
One commenter was concerned about authorizing minor dredging
activities in waters containing habitat features for various life
stages of anadromous fish, including complex wood structures and edge
habitats used for juvenile rearing and adult holding. The commenter
indicated that this NWP should not be used to authorize dredging in
waters that are inhabited by anadromous salmonids.
The terms and conditions of this NWP, as well as the ability for
division and district engineers to exercise discretionary authority or
condition this NWP, are sufficiently protective of species of
anadromous salmon. General condition 2, Aquatic Life Movements,
specifies no activity may disrupt the necessary life cycle movements of
the aquatic species indigenous to the waterbody. In addition, general
condition 3, Spawning Areas, states that activities in any spawning
areas must be avoided to the maximum extent practicable during spawning
seasons and the specific terms of this NWP prohibit its use in
anadromous fish spawning areas at all. Additional time of year
restrictions may be imposed by division and district engineers to
reduce or avoid impacts to juvenile salmonids utilizing these areas.
Other commenters expressed concerns that NWP 19 does not authorize
activities that are similar in nature with minimal impacts. One
commenter questioned whether this NWP can be used for removal of a
sandbar across the mouth of a navigable waterway. A couple of
commenters questioned why this NWP applies to section 404 waters when
the text of the permit states that it only authorizes minor dredging
activities in section 10 waters. One commenter said that this NWP
should not authorize dredging activities in non-navigable waters,
including small streams, because of the greater potential for more than
minimal adverse environmental effects.
We believe that the minor scope and nature of the types of dredging
activities authorized by this NWP are sufficient to establish that the
activities are similar in nature. This NWP can only be used to
authorize the removal of materials from waters subject to Section 10 of
the Rivers and Harbors Act of 1899. Dredging activities in section 10
waters may require section 404 authorization, which may be provided by
this NWP. In waters of the United States that are not
[[Page 11113]]
subject to section 10 jurisdiction (i.e., section 404-only waters), NWP
18, regional general permits, or individual permits may be used to
authorize those activities. This permit could be used to remove a
sandbar across the mouth of a Section 10 water provided the activity
met all of the other conditions for its use.
This NWP is reissued without change.
NWP 20. Oil Spill Cleanup. We did not propose any substantive
changes to this NWP. One commenter requested clarification of the
applicability of NWP 38 for emergency response to an oil release in
waters of the United States from electrical equipment that is not
covered by a Spill Prevention, Control, and Countermeasure (SPCC) Plan.
These releases are governed by EPA's polychlorinated biphenyl spill
response regulations at 40 CFR part 761. Because the activities are not
included in a SPCC Plan, they were not authorized by the previous or
the proposed versions of NWP 20. Since the required work must be
initiated within 24 or 48 hours of discovery of the release, the
commenter requested that either NWP 20 be modified or the pre-
construction notification requirement for NWP 38 be removed, to allow
these activities to take place in a timely manner.
We agree with the commenter's concern but do not think it is
appropriate to remove the pre-construction notification requirement
from NWP 38. We are thus modifying NWP 20 to authorize the cleanup of
oil releases in waters of the United States from electrical equipment
that are governed by EPA's polychlorinated biphenyl spill response
regulations at 40 CFR part 761.
This NWP is reissued with the modification discussed above.
NWP 21. Surface Coal Mining Operations. We proposed to change the
title of this NWP. We also proposed allowing authorization of projects
by this NWP that were currently being processed as part of an
integrated permit processing procedure in lieu of an authorization from
the Department of Interior, Office of Surface Mining (OSM) or by states
with approved programs under Title V of the Surface Mining Control and
Reclamation Act (SMCRA) of 1977. The Corps, the Environmental
Protection Agency, OSM, and the U.S. Fish and Wildlife Service entered
into a Memorandum of Understanding on February 8, 2005. This MOU
envisioned a collaborative process in which the SMCRA 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.
We believe there may be some confusion regarding the intent of the
term ``surface'' coal mining operations. The Corps did not intend to
restrict use of this NWP to only a particular type of coal mining
technique. Any coal mining activities can be considered for
authorization under NWP 21 to the extent the activities occur on the
surface of the land. In particular, while discharges associated with
underground coal mining activities now require authorization under NWP
50 rather than NWP 21, surface processing activities associated with
underground coal mining may still be authorized by this permit provided
they meet the conditions for its use.
Proposed Limits
There were numerous comments regarding limitations on NWP 21. A
number of commenters recommended limits on the length of stream that
could be filled under NWP 21, and other commenters recommended an
overall limit on impacts to waters of the United States of \1/2\ acre.
One commenter suggested that the threshold limits should be 2 acres and
1,500 linear feet. Three commenters recommended a 300 linear foot limit
on filling streams and a \1/2\ acre limit on impacts to all waters, and
that these impacts could not be waived by the district engineer. Two
other commenters concurred with the 300 foot limit but also suggested
not allowing the use of NWP 21 in watersheds where the cumulative
amount of filled streams was already causing more than minimal harm.
Several commenters stated that any linear foot limits should apply to
all streams, ephemeral, intermittent, and perennial. One commenter said
that this NWP should not authorize discharges into perennial streams.
Another commenter stated that the use of NWP 21 should not be allowed
if more than 10 percent of the headwater streams in the watershed had
been filled or otherwise degraded. One commenter stated that a 250-acre
watershed limit was appropriate but that drainage areas was not the
only factor that should be considered in determining if a project
should qualify for NWP 21.
There were also a substantial number of comments that objected to
limitations on NWP 21. Many commenters stated that acreage limits that
may be appropriate for eastern states would not be appropriate for
western states and would be unnecessarily restrictive. Two commenters
suggested issuing two versions of NWP 21, one for the western United
States and another for the eastern United States. They discussed the
differences in mining and reclamation techniques and believed the Corps
should recognize these differences by establishing two NWPs for coal
mining. One commenter noted that acreage limits need to be larger for
the western United States. A number of commenters suggested that
regional conditions could be used to address the issue of limits.
Several commenters noted that there was no compelling scientific or
environmental basis or rationale to establish limits on NWP 21. They
noted that due to hydrologic, climatic, and ecological variations,
there was no defensible way to establish a specific threshold below
which impacts could be said to be ``minimal'' across the vastly
differing geographical and hydrological regimes where mining occurs.
Several commenters stated that arbitrary and unnecessary thresholds
would slow the permit process and result in a loss of coal production,
which could be construed as a ``takings'' that violated substantive due
process rights. Other commenters noted that limiting the use of NWP 21
would result in a loss in royalty and tax revenues and increases to the
cost of the nation's energy supply by restricting coal production. One
commenter noted that it would take more of the Corps' limited resources
to review surface mining projects as individual permits. One commenter
stated that thresholds would also impact the Corps' ability to comply
with Executive Order 13212, which requires federal agencies to expedite
their review of permits for energy related projects. One commenter
noted that if a 2-acre limit were established for NWP 21, more than 60
percent of the nation's coal production would not be eligible for the
NWP. One commenter stated that a 3-acre limit in the western United
States would have a significant impact on Western mining operations.
One commenter noted that if a limit of less than 50 acres was adopted,
the Corps' would not achieve its goal of focusing its limited resources
on projects that have the potential for more environmentally damaging
adverse effects. Two commenters believed safeguards were in place to
ensure impacts do not cause more than minimal individual or cumulative
effects. They noted that general condition 20, Mitigation, requires
compensatory mitigation to offset the adverse effects to the aquatic
environment, and that there was no need for arbitrarily chosen acreage
limits because the mitigation requirement counterbalances all adverse
effects.
[[Page 11114]]
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 or states with approved programs under Title V of the
Surface Mining Control and Reclamation Act (SMCRA). Previously, there
have been no limits associated with impacts to waters of the United
States for NWP 21. This was based partly on the belief that the
analyses and environmental protection performance standards required by
SMCRA in conjunction with the pre-construction notification
requirement, are generally sufficient to ensure that NWP 21 activities
result in minimal individual and cumulative adverse impacts on the
aquatic environment.
Furthermore, we believe the change in NWP 21 in 2002, which
requires not only notification to the Corps for all projects that may
be authorized by this permit but also explicit authorization from the
Corps before the activity can proceed, has strengthened the
environmental protection for projects authorized by this permit. One
commenter requested that this requirement be removed from this NWP.
However, we continue to believe that this 2002 change helps ensure that
no activity authorized by this permit will result in greater than
minimal adverse impacts, either individually or cumulatively, on the
aquatic environment, because it requires a case-by-case review of each
project. If the district engineer determines through this case-by-case
review that the activity has the potential to result in more than
minimal adverse effects to the aquatic environment, he or she can
exercise discretionary authority to require an individual permit. Also,
because of the case-by-case review and the requirement for written
verification, we do not agree that it is necessary to prohibit
discharges of dredged or fill material into perennial streams.
Lastly, the Corps recognizes that there are vast differences in
coal mining techniques not only between the western and eastern parts
of the United States, but also within the Illinois Coal Basin and the
Appalachian Coal Fields themselves. There are also considerable
differences in geological, topographical, climatological, hydrological
and ecological regimes in the areas where coal resources are located
across the United States. Furthermore, no specific scientific or
environmental basis for determining a uniform national limit on NWP 21
was submitted for consideration. As noted above, there were several
comments suggesting specific limits but no ecological rationale was
supplied to support these specific limits. Several commenters did
submit information from the Programmatic Environmental Impact Statement
(PEIS) for mountaintop mining/valley fill. However, the PEIS did not
support or determine appropriate limits for NWP 21. Based on these
considerations along with the fact that the impacts to waters vary
greatly depending on the mining techniques and the environmental
factors in the area, we have determined that establishing a specific
threshold limit would not be practical on a national basis. We believe
that regional conditions, as appropriate, and site-specific review of
each pre-construction notification will ensure that NWP 21 authorizes
activities with no more than minimal adverse effects on the aquatic
environment, individually and cumulatively. The Corps has determined
that it is both efficient and environmentally protective to issue an
NWP 21 that can be used to authorize most activities that have no more
than minimal adverse effects on the aquatic environment and allow
division engineers to establish regional conditions that determine
appropriate limits for impacts to waters based on the functions and
values of aquatic resources within their division.
Regional Conditions
There were three commenters who noted that the division engineer
has the discretion to add regional terms and conditions to NWP 21 and
that acreage limitations should be determined at the regional level.
The Corps agrees, based on the discussion above regarding limitations,
that regional conditions are the best way to address regional concerns
regarding surface coal mining activities and NWP 21. Division engineers
can add regional conditions to any NWP to further restrict the use of
the NWP to ensure that the NWP authorizes only activities with no more
than minimal adverse effects on the aquatic environment in a particular
watershed or other geographic region. The division engineer cannot
modify the NWP by adding regional conditions to make the NWP less
restrictive (see 33 CFR 330.1(d)). The use of regional conditions
recognizes that functions and values of aquatic resources differ
greatly across the country.
Discretionary Authority
Three commenters noted that NWP 21 allows the Corps to exercise
discretionary authority during the pre-construction notification review
process for any project which has the potential to cause more than
minimal individual and cumulative adverse impacts on the aquatic
environment.
We agree with these commenters. The pre-construction notification
requirements of all NWPs allows for a case-by-case review of activities
that have the potential to result in more than minimal adverse effects
to the aquatic environment. If the adverse effects on the aquatic
environment are more than minimal, then the district engineer can
either add special conditions to the NWP authorization to ensure that
the activity results in no more than minimal adverse environmental
effects or exercise discretionary authority to require an individual
permit. While many NWPs allow the permittee to assume authorization if
he or she has not heard back from the Corps within 45 days of
submitting a complete pre-construction notification, NWP 21 requires
written verification before the project can proceed. This ensures that
adequate time is available to the Corps to review the extensive
documentation that pre-construction notifications for NWP 21 often
include, coordinate with other agencies as necessary, and determine
whether exercise of discretionary authority is necessary to ensure no
more than minimal effects.
Scope of Analysis
One commenter stated that the scope of analysis for NWP 21 review
should extend beyond the effects of fills in waters. Another commenter
noted that the Clean Water Act is clear that general permits may only
be issued if the permitted activities have minimal impacts on the
environment as a whole and not just the aquatic environment.
Several commenters stated that NWP 21 should not be reissued, in
order to protect wildlife habitat, outdoor recreation, the quality of
life in rural communities and environmental integrity. A myriad of
comments were received itemizing impacts related to authorizations
associated with NWP 21. These impacts included irreversible damages to
the American people, the destruction of lives and the natural and
cultural heritage of Appalachia, Montana and Wyoming, loss of hunting
opportunities, the exploitation of impoverished areas by large
corporations, global warming, landslides, blasting, truck traffic on
roads not designed or built to handle heavy loads, harm to bird
populations, destruction of valuable hardwood trees, loss of medicinal
plants, affects on the tourism/vacation home industry, and local
sickness. Several commenters stated that mined areas cannot be restored
to pre-mining conditions, such as native forest. Several commenters
[[Page 11115]]
expressed concern about coal slurry damaging downstream areas.
All of these impacts are outside of the Corps' scope of analysis
pursuant to the National Environmental Policy Act (NEPA). The Corps
evaluation of coal mining activities is focused on impacts to aquatic
resources. Mining in general is permitted under a separate Federal law,
the Surface Mining Control and Reclamation Act. Impacts associated with
surface coal mining and reclamation operations are appropriately
addressed by the Office of Surface Mining or the applicable state
agency. Under these circumstances, the Corps' NEPA implementing
regulations clearly restrict the Corps' scope of analysis to impacts to
aquatic resources.
Integrated Permit Process
Several commenters supported the Memorandum of Understanding (MOU)
between the EPA, Corps, OSM and the USFWS regarding the integrated
permit process for coal mining mentioned in the proposed NWP language.
Some suggested the integrated permit process along with the Standard
Operating Procedure (SOP) for NWP 21 be mandatory under NWP 21. Some
commenters stated that the integrated permit process does not eliminate
the dual review of section 404 and SMCRA as the MOU intended, while
other commenters stated that the integrated permit process was unlawful
because through it, the Corps has delegated its section 404 authority
to the states processing the SMCRA permit applications. One of the
commenters supporting the MOU stated that the current integrated permit
process did not meet the goal of the MOU, as evidenced by its failure
in Ohio, since dual reviews were still being undertaken by the
regulatory agencies.
The MOU recommends that Federal and state agencies coordinate
reviews of coal mining permit applications, with the SMCRA agency as
the lead agency. Currently, in areas that have developed or are in the
process of developing an integrated permit process, the agencies have
elected to make the process voluntary. The integrated permit process
does not eliminate the regulatory responsibilities of the participating
agencies, but allows the various permit applications to be reviewed
concurrently while utilizing information from one application to
fulfill required sections of other applications, where appropriate. The
process allows for timelier reviews while providing the framework for
better environmental protection. The Ohio integrated permit process is
still in use for those who choose to use it.
State Programmatic General Permits and Regional General Permits
Several commenters suggested that a state programmatic or regional
general permit or other methods (e.g., a national MOU) be developed to
reduce the duplication of effort by the regulatory agencies, therefore
reducing cost and delays in receiving authorizations.
State programmatic and regional general permits are developed at
the district level. The Corps supports and participates in such efforts
where possible.
Surface Mining Control and Reclamation Act
Several commenters stated that coal mining is the most
environmentally regulated activity, and SMCRA, along with Sections 401
and 402 of the Clean Water Act, already require analyses of all of the
factors addressed under Section 404 of the Clean Water Act. Therefore,
as the above-referenced programs already regulate impacts to aquatic
resources, including impacts related to water quality, endangered
species, historic properties, and the hydrologic regime, further review
by the Corps only creates an additional administrative burden without
any real benefits.
The Corps understands coal mining is covered by many environmental
regulations; however the Corps has determined that SMCRA, in its
current form, does not remove the need, either legally or
substantively, for independent authorization under Section 404 of the
Clean Water Act. Consequently, this NWP does not duplicate the SMCRA
permit process. The Corps continues to work with the other agencies to
avoid potential duplication of efforts and uses appropriate work and
studies done by or for other agencies (e.g., surveys/findings under the
Endangered Species Act or Section 106 of the National Historic
Preservation Act as well as SMCRA permit documentation) in its analysis
of the proposed project.
Mitigation
Several commenters stated that mitigation done for NWP 21 is
scientifically indefensible and, absent such mitigation, the projects
authorized under NWP 21 have more than minimal adverse effect and are
therefore impermissible. They stated that current mitigation projects
have so far been unsuccessful and referenced a court case in the
Southern District of West Virginia (Ohio Valley Environmental Coalition
v. Bulen), where they noted that a Corps official stated that he did
not know of a single instance of successful headwater stream creation.
Also, the commenters stated that the Corps did not include any specific
guidelines for how to assess stream function in order to determine the
adequacy of compensatory mitigation. They also stated that the Corps
has not shown that mitigation will offset the impacts authorized under
NWP 21 or that off-site enhancement of streams would fully compensate
for functions of streams that are destroyed. Other commenters stated
that the Corps mistakenly allows the mitigation requirements of SMCRA
and state water quality laws to satisfy the independent requirements of
Section 404 of the Clean Water Act. They stated that allowing a
permittee to claim a compensatory mitigation or reclamation activity
already required under SMCRA as compensatory mitigation under the Clean
Water Act is ``double-counting'' and improperly blurs the requirements
of sequencing (i.e., avoidance, minimization, mitigation) imposed under
the 404(b)(1) guidelines. Other commenters recommended that mitigation
of 1:1 should be required in order to achieve no net loss, and that
mitigation also be required for potential, as well as actual, impacts.
Several commenters stated that final reclamation of wetland habitat
will most likely exceed the required compensatory mitigation.
In order to ensure that an activity results in no more than minimal
adverse effect on the aquatic environment, the Corps will add permit
conditions that require compensatory mitigation that meets specified
success criteria. The Corps will generally require the permittee to
monitor the mitigation site for five years and, if the mitigation site
does not meet the success criteria at that time, remediation or
additional mitigation will be required. This ensures that the
authorized activity will not result in a net loss in aquatic functions.
The Corps has increased its compliance efforts to ensure that projects
authorized by DA permits are constructed as authorized and that
mitigation is successful.
We are currently developing new stream functional assessment
protocols to identify and quantify the functions lost through
authorized impacts and the functions gained or enhanced through
mitigation. We removed the language from the proposed NWP 21 that
required the applicant to furnish a SMCRA or state-approved mitigation
plan. The Corps recognizes that SMCRA does not require ``mitigation''
per-se, but does require ``reclamation/restoration'', and that some
states require ``mitigation'' above Corps requirements.
[[Page 11116]]
The Corps coordinates with the SMCRA and state resource agencies to
achieve appropriate aquatic restoration on mine sites, which can reduce
or eliminate off-site compensatory mitigation needs. The Corps does not
consider this ``double-counting'', because the areas restored are only
counted once in the replacement of aquatic resource functions. As long
as the functions lost as a result of the permitted activity are
mitigated through the onsite restoration or enhancement, it does not
matter if the restoration also meets other goals unrelated to the
Section 404 impacts. General condition 20 establishes the framework for
achieving no net loss of waters/wetlands, as well as the sequential
review of mitigation on-site. The Corps takes into account the fact
that, in certain areas and circumstances, any Corps compensatory
mitigation requirement may be fully encompassed or exceeded by
requirements under other authorities. As long as the impacts to the
aquatic environment are fully mitigated, the Corps will not require
additional compensation.
Withdraw NWP 21
Several commenters requested that NWP 21 be withdrawn and that the
Corps consider authorizations under state or regional permits where
cumulative impacts and mitigation measures can be evaluated on a more
focused level that assures minimal impacts on the environment.
Division and district engineers have the authority to revoke or
modify any or all of the NWPs and require authorizations for proposed
projects by other general permits or individual permits. This should be
determined on a local level.
Independent Evaluation
Several commenters stated that the burial or other degradation of
hundreds of miles of Appalachian streams from mining demands a
thorough, independent review, public notice, and analysis of
alternatives and minimization, which is provided only through the
individual permit process. A few commenters stated that coal mining
rearranges the natural landscape and deserves to be studied on a case-
by-case basis. One commenter stated that each project should be
independently evaluated with proper safeguards in place to include
meaningful bonds that would be sufficient to cover remediation costs
when companies declare bankruptcy.
A careful case-specific determination that a project will result in
no more than minimal impacts is necessary for a project to be
authorized by this NWP. The pre-construction notification process for
NWP 21, which requires the applicant to wait until he or she receives
verification from the Corps, provides this case-specific determination.
If the District Engineer determines that a particular proposal will
result in more than minimal adverse environmental effects, he will
assert discretionary authority and require an individual permit.
Bonding is covered under general condition 20. The Corps notes that the
SMCRA permitting process provides for public notice and comment on all
coal mining permits.
Minimal Adverse Effects
A few commenters stated that the Secretary of the Army can only
issue NWPs by making an up-front determination that the activities
authorized by each NWP category will cause only minimal adverse effects
and the Corps cannot ignore harm already done when assessing cumulative
impacts. The commenters stated that the Corps has no reasoned basis or
substantial evidence to support its determinations that the individual
or cumulative environmental impacts associated with NWP 21 will be
minimal. Several commenters similarly stated that compensatory
mitigation could not be used to reduce the net adverse impacts to the
minimal level in order to qualify for general permits. Therefore, NWP
21 exceeds the definition of minimal adverse environmental effects and
all coal mining should be reviewed under the individual permit process.
A number of commenters stated that surface coal mining results in
significant ecological damage to headwater stream systems, when
considered both individually and cumulatively, and it cannot be
reasonably assumed that those stream losses can be mitigated into
insignificance.
We believe our process for NWP 21 ensures that activities
authorized by the NWP result in no more than minimal adverse impacts to
the aquatic environment because each project is reviewed on a case-by-
case basis and the district engineer either makes a minimal impacts
determination on the project or asserts discretionary authority and
requires an individual permit. Additionally, as noted above, division
engineers can add regional conditions to any NWP to further restrict
the use of the NWP to ensure that the NWP authorizes only activities
with no more than minimal adverse effects on the aquatic environment in
a particular watershed or other geographic region. Each district tracks
losses of waters of the United States authorized by Department of the
Army permits, including NWPs, as well as compensatory mitigation
achieved through aquatic resource restoration, creation, and
enhancement.
In addition, we believe that the Corps can rely on mitigation in
making a minimal adverse environmental effects determination.
One commenter requested that the Corps clarify what constitutes a
``single and complete surface coal mining operation'' since approved
mines can expand through either the addition of substantial acreages or
the addition of small acreages (incidental boundary revisions). This
commenter asked whether all revisions, including incidental boundary
revisions, are considered as single and complete coal mining
operations.
District engineers use the criteria in the definition of ``single
and complete project,'' which is found in the ``Definitions'' section
of the NWPs, when identifying single and complete coal mining
operations. District engineers will determine, on a case-by-case basis,
whether the expansion of an existing mine constitutes a separate single
and complete project.
Impacts From NWP 21 Activities
Many commenters opposed the reissuance of NWP 21 because of the
potential impacts to the aquatic environment and water resources.
Several commenters expressed concerns about impacts to water supplies
and drinking water, downstream water uses, and recreational
opportunities such as fishing. Concerns were also expressed about water
pollution, the effects of burying streams that support aquifers, and
loss of streams and wetlands. This NWP requires compliance with all of
the general conditions for the NWPs, which address many of these
concerns. Additionally, many of these factors will be evaluated during
the project-specific evaluation.
One commenter noted that NWP 21 does not provide the public an
opportunity to comment on the specific conditions of a permit that will
affect their communities and watersheds.
Section 404(e) of the Clean Water Act provides the statutory
authority for the issuance of general permits on a nationwide basis for
any category of activities. The Corps establishes NWPs in accordance
with section 404(e), by publishing and requesting comments on the
proposed permits. The general public has the opportunity to comment on
NWPs at this time. In order to address the requirements of the National
Environmental Policy Act, the Corps prepares a decision document for
each
[[Page 11117]]
NWP along with a 404(b)(1) Guidelines analysis. The decision document
discusses the anticipated impacts on the Corps' public interest factors
from a national perspective. NWPs are issued at the conclusion of this
process. The individual projects that are proposed for authorization
under an NWP are not given a permit but a verification or authorization
that the project complies with an NWP. There are no requirements for
public comments on specific projects authorized under NWPs. However, in
the case of NWP 21, all projects must have undergone a separate SMCRA
review process the provides for public notice and comment.
Several commenters recommended that NWP 21 be eliminated because it
fails to require that the applicant demonstrate that there are no
practicable alternatives to placing fill in waters of the United
States, a requirement of Section 404(e) of the Clean Water Act. The
commenters stated that the Corps wrongly assumes the SMCRA process to
be comparable to Section 404 and the 404(b)(1) Guidelines. The
commenters noted that, in fact, SMCRA does not require the applicant to
choose the method of coal waste management that avoids and minimizes
impacts and is least damaging to waters of the United States.
The Corps does not assume that other state or Federal agencies
conduct a review that is comparable to the section 404(b)(1)
Guidelines. Although analysis of offsite alternatives is not required
in conjunction with general permits, each proposed project is evaluated
for onsite avoidance and minimization, in accordance with general
condition 20, and is not authorized under the NWP if the adverse
impacts to waters of the United States are more than minimal.
Five commenters noted that coal slurry impoundments should not be
allowed by an NWP and that NWPs can only be issued for activities that
are similar in nature and that valley fills and coal slurry
impoundments are not similar in nature.
The Corps has determined that slurry impoundments and valley fills
are part of surface coal mining activities and are therefore 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 the ``categories of activities that are similar in nature''
requirement of Section 404(e) is to be interpreted broadly, for
practical implementation of the NWP program.
The NWP is reissued as proposed.
NWP 22. Removal of Vessels. We proposed to rearrange the text of
this NWP so that it is in a format similar to the other NWPs. In
addition, we proposed to require pre-construction notification if the
activity requires discharges of dredged or fill material into special
aquatic sites.
One commenter asked if the pre-construction notification
requirement included marine protected areas. One commenter said that
pre-construction notification should be required for all vessel
removals because certain removal methodologies may result in additional
environmental impacts. One commenter stated that pre-construction
notification should be required for all vessel removals from special
aquatic sites, not just those involving discharges of dredged or fill
material.
Pre-construction notification is required for NWP 22 activities in
designated critical resources waters and their adjacent wetlands (see
general condition 19), which may include marine protected areas.
Designated critical resource waters include NOAA-designated marine
sanctuaries, Natural Estuarine Research Reserves, and other waters
identified by the district engineer after the issuance of a public
notice and an opportunity for public comment. We do not agree that pre-
construction notification should be required for all activities
authorized by this NWP. However, we are modifying this NWP to require
pre-construction notification for activities in special aquatic sites,
to ensure that those activities result in minimal adverse effects on
the aquatic environment. Vessel removal activities in special aquatic
sites, especially coral reefs and vegetated shallows, have the
potential to result in more than minimal adverse effects, even though
there may be no discharge of dredged or fill material. Vessel removal
activities in other areas conducted in compliance with the NWP and the
general conditions will normally have no more than minimal adverse
effects on the aquatic environment, individually and cumulatively.
Further, division and district engineers will condition these
activities as necessary to ensure that they will have no more than
minimal adverse effects on the aquatic environment, individually and
cumulatively.
Another commenter observed that vehicles are often found in waters
of the United States due to accidents, abandonment, and other reasons,
and that the removal of the vehicles is necessary to minimize the
adverse environmental impacts associated with release of automotive
fluids. The commenter requested that this NWP be modified to allow for
the expedited removal of vehicles from waters of the United States.
We agree that the presence of vehicles, and the associated
automotive fluids, in waters of the United States can be
environmentally damaging, and this NWP can be used to authorize their
removal when they constitute an obstruction to navigation. However, we
believe that the pre-construction notification requirements for
activities into special aquatic sites are necessary to ensure that the
activities authorized by this NWP have no more than minimal adverse
effects. Division and district engineers can evaluate projects on a
case by basis in situations where pollutants may be leaking from
vehicles and determine if expedited or emergency processing procedures
are warranted.
A commenter requested that the Corps indicate when EPA and Corps
permits are required or provide citations to EPA and Corps regulations.
One commenter noted that the parenthetical identification of statutory
authorities was not included at the end of the text for this NWP.
The ``Note'' to this NWP already includes a citation of applicable
EPA regulations. We do not believe it is necessary to add citations to
the Corps regulations for implementing Section 404 of the Clean Water
Act and Section 10 of the Rivers and Harbors Act of 1899. We are
correcting this NWP to identify the statutory authorities under which
this NWP is issued (i.e., sections 10 and 404).
Another commenter requested that the Corps clarify in the preamble
to the final rule that this NWP also applies to the removal of objects
and structures such as derelict mooring and breasting structures,
piles, docks, bridges and trestles that are man made obstructions to
navigation. They remarked that some districts apply this NWP only to
the removal of vessels. One commenter requested clarification as to
when a pre-construction notification is required with respect to
general condition 18, Historic Properties. They asked if the permittee
would have to wait to remove the vessel until after the district
engineer has informed the permittee that compliance with general
condition 18 is complete.
The text of the NWP clearly states that the NWP applies to the
removal of man-made obstructions to navigation, which may include any
of the obstructions identified by the commenter in addition to wrecked,
abandoned, or disabled vessels. If the vessel is listed, or eligible
for listing, in the National Register of Historic Places, then
consultation under Section 106 of the National Historic
[[Page 11118]]
Preservation Act is required. The permittee would have to wait until
the section 106 process has been completed before conducting the work.
The NWP is reissued with the modification discussed above.
NWP 23. Approved Categorical Exclusions. We proposed to modify this
NWP by reorganizing the text, adding language to explain that Corps'
Regulatory Guidance Letters (RGLs) list the approved Categorical
Exclusion (CE) activities, and adding language that directs prospective
permittees to the appropriate RGLs to determine if pre-construction
notification is required.
One commenter supported the proposed rewording of NWP 23, and
supported the clarification of pre-construction notification
requirements. One commenter remarked that this NWP violates the intent
of the National Environmental Policy Act (NEPA) by enabling developers
to avoid addressing ecological impacts.
The process for approving categorical exclusions for use with this
NWP, including any approved categorical exclusions that require pre-
construction notification, helps ensure that this NWP authorizes only
those activities that result in minimal individual and cumulative
adverse effects on the aquatic environment and the public interest. In
addition, only the actions of government agencies qualify for this NWP.
Another commenter suggested requiring pre-construction notification
for activities adversely affecting more than \1/10\ acre of wetland,
and recommended adding a \1/3\-acre limit to this NWP for wetland
impacts. One commenter suggested that larger activities should be
evaluated under individual permit procedures instead of using this NWP,
and suggested that large highway projects impacting wetlands should not
be authorized without the public involvement and the environmental
safeguards of the 404(b)(1) Guidelines. One commenter suggested that
all projects requiring stream channelization and any bridges spanning
less than 1.5 times the bankfull width of a stream should be evaluated
through the individual permit process.
The pre-construction notification thresholds established for the
categorical exclusions approved for use with this NWP require case-by-
case review for activities that have the potential to result in more
than minimal adverse effects on the aquatic environment. For the same
reasons, it is not necessary to impose an acreage limit on this NWP or
require individual permits for large highway projects that impact small
amounts of waters of the United States and qualify for approved
categorical exclusions. In response to a pre-construction notification,
the district engineer can add special conditions to the NWP
authorization to ensure that adverse effects on the aquatic environment
are minimal or exercise discretionary authority to require an
individual permit for the work.
Two commenters said that this NWP authorizes activities that are
not similar in nature. One commenter suggested that categorizing
impacts by the effects instead of by the nature of activity is invalid,
and that there appeared to be no limiting principle on the nature of
the activities that could be permitted.
Regulatory Guidance Letter 05-07 lists all categorical exclusions
currently approved for use with this NWP as of the date of this notice.
This RGL is available on the Internet at: http://www.usace.army.mil/cw/cecwo/reg/rgls/rgl_05_07_v2.pdf. The lists of approved categorical
exclusion activities referenced in RGL 05-07 represents impacts that
are minor in nature, both individually and collectively. A limiting
principle on the nature of activities exists because each government
agency has inherent and mission-specific responsibilities and projects,
and activities proposed by a specific agency within an approved
categorical exclusion are similar in nature. The primary Federal action
agency determines that the activities are categorically excluded from
further environmental review. We believe that normally these activities
will have no more than minimal adverse effects on the aquatic
environment, individually and cumulatively. However, division and
district engineers can condition such activities where necessary to
ensure there will be no more than minimal adverse effects on the
aquatic environment, or exercise discretionary authority to require an
individual permit for the work.
Two commenters asserted that the NWP fails to comply with a
statutory requirement that the activities have minimal impacts
individually and cumulatively. One of these commenters said that the
Corps' estimate of 1,020 acres of impact to waters of the United States
represents a significant impact.
We disagree with this assertion. Pre-construction notification is
required for certain approved categorical exclusions that apply to
activities that have the potential to result in more than minimal
individual and cumulative adverse effects on the aquatic environment.
In general, impacts authorized by this NWP are not significant because
they are individually minor, are widely distributed across a vast area,
and are scattered across many watersheds. In addition, compensatory
mitigation offsets the authorized losses, and helps ensure that the
authorized activities result in minimal adverse effects on the aquatic
environment.
One commenter objected to the lack of specificity regarding the
method of solicitation of public comments if new categorically excluded
activities are proposed.
When proposing to add categorical exclusions for use with this NWP,
Corps Headquarters publishes a proposal in the ``Notices'' section of
the Federal Register. Public comment will be solicited through this
notice, and all comments received will be thoroughly considered when
the Corps makes its determination regarding those proposed categorical
exclusions.
One commenter asked that the ``Note'' at the end of this NWP be
expanded to list all of the agencies or departments that have
categorical exclusions approved for use under this NWP. One commenter
believed that referencing RGLs in the NWP is not sufficient, and
suggested that the list of approved activities and pre-construction
notification requirements be wholly included within the text of the
permit rather than referenced to a separate document. Another commenter
stated that the pre-construction notification requirements are vague,
and recommended stating the pre-construction notification requirements
within the text of the NWP or listing the specific RGL to refer to for
those pre-construction notification requirements.
We have modified the ``Note'' by adding a sentence listing the
agencies with approved categorical exclusions. Listing the approved
activities and pre-construction notification requirements in the text
of the permit is impractical, because of the lengths of those lists. In
addition, simply referencing the list of RGLs is more useful because
additional RGLs may be issued if more categorical exclusions are
approved for use with this NWP.
One commenter asked that the text of this NWP be amended to
acknowledge that state transportation agencies can legally assume the
responsibility for categorical exclusion determinations for the Federal
Highway Administration (FHWA).
The current text of the NWP states that activities ``undertaken,
assisted, authorized, regulated, funded, or financed'' in whole or in
part by a Federal agency are eligible to be considered by the Corps for
possible approval as a categorical exclusion. We
[[Page 11119]]
believe that the current text is sufficient and there is no need to
restate or affirm the relationships between the FHWA and the state
transportation agencies, which generally fall into one or more of these
categories.
This NWP is reissued as proposed.
NWP 24. Indian Tribe or State Administered Section 404 Programs. We
proposed to add Indian tribes to this NWP, since they can be approved
by EPA to administer the section 404 program. No comments were
received.
This NWP is reissued as proposed.
NWP 25. Structural Discharges. No changes to this NWP were
proposed. One commenter stated that it is difficult to perform these
types of activities without some minor related temporary construction
activity. They suggest adding a statement that allows minor
construction activities.
The construction of these structural members is usually
accomplished by installing sheeting or pilings to construct forms,
which are then filled with concrete, sand, rock, or other materials.
The installation of the sheeting or pilings usually does not result in
a discharge of fill material that would require section 404
authorization. However, in cases where temporary construction, access,
and dewatering activities are necessary to complete the activities
authorized by this NWP, those temporary activities may be authorized by
NWP 33, a regional general permit, or an individual permit.
The NWP is reissued as proposed.
NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities. We proposed to modify this NWP by requiring reporting to
the district engineer for those activities that do not require pre-
construction notification. We also proposed to add shellfish seeding to
the list of examples of activities authorized by this NWP, and remove
the restriction limiting the use of this NWP only to those mitigation
banks that have been approved in accordance with the 1995 mitigation
banking guidelines. In addition, we proposed to prohibit the use of the
NWP to authorize the conversion of natural wetlands.
We have modified the first paragraph of this NWP to more clearly
present the general categories of authorized activities.
One commenter supported the broadening of the title of this NWP to
include all aquatic habitats. One commenter said that this NWP has the
potential to authorize projects with significant adverse impacts. One
commenter said that this NWP should be revoked, because it could result
in losses of wetland function and habitat and other adverse impacts to
the aquatic environment. One commenter stated that there should be an
acreage limit on this NWP. Two commenters said that wetland impacts
should be limited to 2 acres, and another commenter stated that stream
impacts should be limited to 2,000 linear feet. Another commenter
stated that the lack of an acreage limit on this NWP does not encourage
applicants to minimize adverse impacts. This commenter suggested a \1/
2\ acre limit for wetland fills and a 300 linear foot limit for stream
impacts.
This NWP authorizes aquatic habitat restoration, establishment, and
enhancement activities, provided those activities result in net
increases in aquatic resource functions and services. Its use will not
cause significant adverse effects on the overall aquatic environment.
We do not believe there should be an acreage limit on this NWP, because
of the requirement for these projects to result in net increases in
aquatic resource functions and services. Moreover, all activities
authorized under this NWP will be reviewed in advance by the Corps,
either through the pre-construction notification requirement, or
through the reporting requirement for projects conducted under
authorities of other Federal agencies.
One commenter recommended prohibiting establishment of open water
areas in existing wetlands and streams, and prohibiting the relocation
of all aquatic resources. One commenter recommended removing the
references to waterfowl impoundments because those impoundments may be
considered enhancements by some people. This commenter said the
establishment of impoundments in streams or natural wetlands should not
be allowed for any reason. One commenter requested clarification
whether this NWP authorizes green-tree reservoirs. One commenter
suggested allowing dam removal activities to be authorized by this NWP.
One commenter said that this NWP should authorize stream establishment,
in cases where impaired or degraded streams can be relocated to provide
net benefits to the aquatic environment and the overall watershed.
We have modified the text of this NWP, by removing the reference to
establishing an impoundment for wildlife habitat. This NWP does not
authorize green-tree reservoirs, because those activities generally
degrade natural wetlands and would not result in a net increase in
aquatic resource functions and services. Discharges of dredged or fill
material into waters of the United States for the continued operation
of existing green-tree reservoirs may be authorized by NWP 30. New
green-tree reservoirs may be authorized by individual permits or
regional general permits. This NWP prohibits the conversion of streams
or natural wetlands to other aquatic habitat types or uplands, except
for the relocation of non-tidal waters on the project site. We have
also simplified the language regarding the relocation of non-tidal
waters, including non-tidal wetlands, on the project site. The
requirement that such relocations provide net gains in aquatic resource
functions and services has been retained. Dam removal activities can be
authorized by this NWP, provided they meet the requirements for its
use, including that there is a net increase in aquatic resource
functions and services. We have modified the third paragraph of this
NWP to state that this NWP can be used to authorize the relocation of
non-tidal streams, provided there are net increases to aquatic resource
functions and services.
One commenter stated that using this NWP to authorize the
relocation of non-tidal waters, including non-tidal wetlands, on the
project site as long as there are net gains in aquatic resource
functions and services, appears to contradict the provision prohibiting
the conversion of streams or natural wetlands to another aquatic use.
This commenter indicated that there will be different interpretations
of the relative value of certain aquatic resource functions and
services. This commenter also said that temporal lags associated with
replacing certain wetland types, such as forested wetlands, should be
considered.
The relocation of non-tidal waters on a project site does not
necessarily contradict the provision prohibiting the conversion of
streams or natural wetlands to another aquatic habitat type, if
comparable streams or wetlands are restored or established elsewhere on
the project site. District engineers will determine compliance with
these provisions on a case-by-case basis, in response to a pre-
construction notification or a report. We recognize that relocating
non-tidal waters may result in temporal losses of certain aquatic
resource functions and services, while the relocated waters undergo
ecosystem development. To comply with these provisions of this NWP, the
net increases in aquatic resource functions and services does not need
to occur immediately after the NWP 27 activity has been constructed.
However, those net increases need to occur over time through ecosystem
development processes as a result of a successful
[[Page 11120]]
aquatic habitat restoration, establishment, or enhancement activity.
Two commenters noted that conversion of streams or wetlands to
other aquatic uses is prohibited but conversions of waters to uplands
are not prohibited. Three commenters supported the proposed language
prohibiting conversion of streams or natural wetlands to other aquatic
uses. Another commenter supported the language prohibiting conversion
of wetlands to other aquatic uses, but said that it may limit the
usefulness of this NWP, as it will not be able to authorize large
ecosystem restoration projects that involve conversions of wetlands to
other aquatic types, even where there are net benefits for the aquatic
environment.
We have modified this NWP to prohibit the conversion of streams or
natural wetlands to uplands. This prohibition does not apply to
projects involving the relocation of non-tidal waters on the project
site, as long as those activities result in net increases in aquatic
resource functions and services. Large ecosystem restoration projects
that involve conversions of aquatic habitat to other aquatic uses are
more appropriately authorized through either regional general permits
or individual permits.
To prevent re-arrangement of wetlands within a single development
tract, one commenter asked that this NWP prohibit the relocation of
aquatic habitat types on parcels where a local planning document exists
for the development. One commenter objected to prohibiting the
conversion of natural wetlands to other aquatic uses on the grounds
that NWPs are intended to allow any activities with minimal adverse
effects. This commenter stated that some conversions enhance ecosystem
functions.
This NWP can be used to authorize relocation of aquatic habitats on
a project site, even those with development activities, provided there
are net gains in aquatic resource functions and services. These
activities can be beneficial in cases where the development activity
could have indirect adverse effects on the functions of existing
aquatic resources on the project site, and where relocating those
aquatic resources would result in enhanced ecosystem functions. We have
revised the text of this NWP to prohibit the conversion of natural
wetlands to other uses, unless that conversion is part of relocating
non-tidal waters on the project site. This NWP does not authorize
stream channelization, which often involves extensive armoring and
straightening of stream channels.
One commenter suggested allowing the use of NWP 27 for the
restoration and enhancement of tidal streams and tidal open waters.
Another commenter said that this NWP should authorize the relocation
and/or conversion of any tidal waters, provided the proposed work would
result in net increases in aquatic resource functions and services. One
commenter stated that this NWP should not authorize the construction of
impoundments or partial impoundments in tidal wetlands or estuarine
waters.
This NWP does not authorize the restoration of tidal streams and
tidal open waters, but may authorize the restoration of riparian areas
next to such waters. The restoration of tidal streams and other tidal
open waters that involve more than restoring riparian areas is more
appropriately authorized by other Department of the Army permits, since
those activities may result in more than minimal adverse effects on the
aquatic environment. We do not believe it would be appropriate to
modify this NWP to authorize those activities. We maintain our position
that this NWP should not authorize the relocation or conversion of
tidal waters. Those activities may be authorized by individual permits
or regional general permits. This NWP does not authorize the conversion
of tidal waters to other uses, such as impoundments or partial
impoundments.
One commenter said that many activities proposed as restoration
actually degrade habitat or result in a net loss of habitat, and stated
that pre-construction notification should be required for all
activities authorized by this NWP, to determine the beneficial effects
and whether the activity is protective of tribal resources.
Pre-construction notification is required for activities authorized
by this NWP, except for those activities conducted in accordance with
binding agreements between certain Federal agencies or their designated
state cooperating agencies, voluntary wetland activities documented by
the NRCS or USDA Technical Service Provider pursuant to NRCS Field
Office Technical Guide standards, or the reclamation of surface coal
mining lands, in accordance with permits issued by the Office of
Surface Mining or the applicable state agency. For those activities
that do not require pre-construction notification, reporting to the
district engineer is required. In the latter cases, the district
engineer can review the documentation provided through reporting to
ensure that the activity qualifies for NWP authorization. The reporting
requirements provide district engineers with the opportunity to review
aquatic habitat restoration, establishment, and enhancement activities
conducted under the purview of other government entities, to ensure
that those activities result in net increases in aquatic resource
functions and services. The pre-construction notification requirements,
as well as the reporting requirements, will help ensure that this NWP
authorizes only activities that comply with the terms and conditions of
this NWP, including general condition 16, Tribal Rights.
One commenter stated that the reporting requirement for voluntary
NRCS-related wetland projects would be burdensome, and suggested that
requiring NRCS documentation could discourage voluntary wetland
restoration activities. Another commenter said that there appears to be
little difference between the reporting and pre-construction
notification provisions, and suggested requiring pre-construction
notifications for all NWP 27 activities. Two commenters supported the
requirement that copies of restoration agreements be submitted. One
commenter recommended requiring pre-construction notifications and
interagency coordination for all projects using NWP 27, to ensure that
development activities are not conducted as NWP 27 activities. A
commenter objected to requiring the submittal of restoration agreements
to fulfill the reporting requirement, citing privacy concerns. This
commenter said that alternative types of information could be submitted
instead to report proposed NWP 27 activities conducted under these
agreements. One commenter stated that the Corps and other agencies
should be required to approve wetland enhancement, restoration, or
establishment agreements referenced in the reversion provisions of NWP
27.
The pre-construction notification requirements are sufficient to
ensure proper implementation of NWP 27. We have clarified the language
in the NWP to reduce confusion. To avoid duplicative efforts by the
government, pre-construction notification is not required for
activities conducted under agreements or arrangements with other state
or Federal government agencies. Pre-construction notification is
required for all other activities. The reporting requirement will
provide a mechanism whereby the Corps can review proposed activities
conducted under other agency programs, to ensure that they comply with
the terms and conditions of this NWP. We are modifying the reporting
requirement to allow the submittal of project descriptions and plans,
in lieu of
[[Page 11121]]
binding agreements executed between agencies and landowners.
It would be inappropriate to require Corps approval of wetland
enhancement, restoration, or establishment agreements executed and
administered by other agencies. For those activities that require pre-
construction notification and will result in the loss of greater than
\1/2\ acre of waters of the United States, agency coordination is
required (see paragraph (d) of general condition 27).
One commenter suggested modifying the reversion, reporting, and
notification provisions by referencing actions documented by ``NRCS or
USDA Technical Service Provider pursuant to NRCS Field Office Technical
Guide Standards'' instead of ``NRCS regulations,'' since many of these
wetland restoration, enhancement, and establishment activities are
performed by technical service providers, who must be certified by NRCS
and comply with the Field Office Technical Guide standards. We concur
with this recommendation, and have made appropriate changes to the text
of this NWP.
One commenter said that replacing the word ``values'' with
``services'' demeans the functions provided by a healthy ecosystem,
unless the term ``functions'' is specifically retained. Another
commenter remarked that replacing the word ``values'' with ``services''
is inconsistent with the common industry vernacular. They suggest using
the word ``functions'' instead of ``services.''
We are retaining the term ``functions'' in the text of this NWP,
and are replacing the word ``values'' with ``services'' because
ecosystem services provide a more objective measure of the importance
of aquatic resource functions to human populations. The terms
``functions'' and ``services'' are not equivalent, and therefore it
would not be appropriate to replace the term ``services'' with
``functions.'' Services are the benefits that humans derive from the
functions performed by wetlands and other aquatic resources. The term
``services'' is now being used in place of ``values'' in the ecological
economics literature, because of the difficulty in assigning value to
ecosystem services. As discussed in the September 26, 2006, Federal
Register notice, values may relate to either monetary or non-monetary
measures, but services can be described in physical terms that are
easier to evaluate and address, where necessary, in NWP authorization
letters and special permit conditions.
Two commenters supported allowing the use of NWP 27 to authorize
the construction of mitigation banks. One commenter requested
clarification that this NWP could be used for wetland mitigation banks,
and one commenter asked that the NWP apply to all mitigation banking
projects, not just those with a signed mitigation banking agreement.
Two commenters said that the construction of mitigation banks should
not be authorized by NWP 27, but should be authorized by individual
permits instead. One commenter stated that it would be acceptable to
allow the use of NWP 27 for mitigation bank construction with a caveat
that impacts associated with mitigation bank construction be deducted
from any available credit the mitigation bank develops. One commenter
requested that this NWP contain language stating that compensatory
mitigation is required for activities authorized by NWP 27, but another
commenter suggested that no compensatory mitigation should be required
for impacts associated with construction of compensatory mitigation
projects.
This NWP can be used to authorize aquatic resource restoration,
establishment, and enhancement activities necessary for the
construction of mitigation banks. It is not necessary for the
mitigation bank proponent to obtain a signed mitigation banking
instrument prior to conducting the NWP 27 activity, but the mitigation
bank proponent needs to understand that activities conducted prior to
approval of a banking instrument may or may not be approved in any
final instrument. The Corps thus recommends that construction of
mitigation banks not begin until a final instrument has been signed.
Requiring compensatory mitigation for losses of waters of the United
States as a result of NWP 27 is at the discretion of the district
engineer. The crediting of a mitigation bank will be determined by the
district engineer during the approval process for the mitigation
banking instrument. Any adverse impacts to aquatic resources resulting
from construction of the bank would certainly be considered in that
determination.
Two commenters said that this NWP should require permittees to
plant native species at the site. They said that the proposed language
contains too much flexibility. One commenter said that NWP 27 should
not authorize activities in waters inhabited by anadromous fish. One
commenter stated that the U.S. Fish and Wildlife Service must concur
with projects in which machinery must work in waters where endangered
or threatened species are present. One commenter indicated that this
NWP should authorize work in flowing waters where the activity will
result in long-term stability and habitat benefits.
It would be inappropriate to require permittees to plant only
native species at the project site. Native plant materials may not be
available for all of these projects, and it is difficult to define
precisely what constitutes a ``native'' species. The activities
authorized by this NWP are required to result in net increases in
aquatic resource functions and services, which should benefit
anadromous fish species. However, district engineers will review pre-
construction notifications and other reported activities to determine
if the proposed aquatic habitat restoration, establishment, or
enhancement activity would have more than minimal adverse effects on
anadromous fish species, or require consultation under Section 7 of the
Endangered Species Act. In addition, division and district engineers
can develop regional conditions or case-specific conditions to ensure
that potential impacts to anadromous fish are minimal, or exercise
discretionary authority to require an individual permit for the work if
impacts are expected to be more than minimal. Compliance with the other
general conditions for the NWPs, including general condition 9,
Management of Water Flows, is required, though general condition 9
specifically allows activities that alter the pre-construction course,
condition, capacity, and location of open waters if they benefit the
aquatic environment.
One commenter requested clarification of what constitutes a
``small'' nesting island, and requested that the NWP state that
approved water quality standards cannot be violated during construction
of small nesting islands. Another commenter said that pre-construction
notification should be required for the construction of small nesting
islands in special aquatic sites. One commenter asked for a definition
of the term ``enhancement activities.'' One commenter suggested
requiring monitoring of stream restoration projects, with mandatory
corrective actions for projects that are not successful.
The district engineer has the discretion to determine what a
``small nesting island'' is for the purposes of this NWP. Either pre-
construction notification or reporting is required for all activities
authorized by this NWP, which will provide district engineers with
opportunities to review all proposed activities, including the
construction of small nesting islands, to determine those activities
comply with the terms and conditions of the NWP.
[[Page 11122]]
The term ``enhancement'' is defined in the ``Definitions'' section of
the NWPs. District engineers have the authority to require additional
monitoring or corrective measures on a case-specific basis. We believe
it is unnecessary to restate those authorities in the text of this NWP.
One commenter said that this NWP should prohibit the widening or
straightening of stream channels, the removal of gravel bars, the
destruction of woody vegetation, and the in-stream use of bulldozing or
heavy equipment. Another commenter stated that NWP 27 should require
the use of natural stream channel design for in-stream work. Two
commenters suggested that this NWP should not authorize the use of
riprap or other armoring. One commenter suggested limiting the use of
this NWP to restoration of a stream to its historic non-degraded
condition to prevent the use of this NWP for construction of flood
control projects.
This NWP does not authorize stream channelization activities. It
may be necessary to temporarily impact gravel bars or vegetation during
the construction of stream restoration and enhancement activities.
After the construction of the stream restoration or enhancement
project, the stream channel should move water and sediment in a manner
that will result in a channel morphology that provides habitat for a
diverse community of species. That restored or enhanced habitat will
include gravel bars, if the bed load carried by the stream includes a
sufficient proportion of gravel. In addition riparian vegetation will
normally be planted or allowed to grow back to replace the impacted
riparian vegetation after construction activities have been completed.
In-stream use of heavy equipment is not prohibited, because such
equipment is usually necessary to conduct stream restoration and
enhancement activities. In response to a pre-construction notification,
or the review of the other Federal agency agreement, the district
engineer will determine whether the proposed activity complies with the
terms and conditions of the NWP, including the requirement for the
activity to result in net increases in aquatic resource functions and
services. It would be inappropriate to require, in the text of this
NWP, specific design or construction methods, or prohibit the use of
riprap or other armoring. Armoring using riprap or other materials can
be a necessary component of beneficial aquatic habitat restoration,
establishment, and enhancement projects.
We believe that limiting the use of this NWP for the sole purpose
of restoring streams to historic conditions would be overly
restrictive, and would effectively prohibit its use for other
beneficial restoration activities. Further, the pre-construction
notification and reporting requirements for this NWP will help ensure
that activities conducted under this NWP comply with the purposes and
intent of the NWP, as well as its terms and condition.
Two commenters said that the prohibition against stream
channelization conflicts with general condition 9, Management of Water
Flows, which allows stream restoration and relocation for some NWP
activities. One commenter suggested that the Corps remove the
channelization restriction from NWP 27 and expand the definition of
``stream channelization'' to authorize activities beneficial to the
aquatic environment.
As noted above, general condition 9 allows the use of any NWP for
projects that alter the pre-construction course, condition, capacity,
and location of open waters if they benefit the aquatic environment.
The removal of the stream channelization prohibition from NWP 27 could
inadvertently allow projects to proceed under this NWP that have more
than minimal adverse impacts on the aquatic environment. We also
believe that it is unnecessary to modify the definition of stream
channelization as suggested because the definition provides an accurate
and concise description of what constitutes stream channelization.
One commenter recommended limiting the use of NWP 27 to projects
conducted by or sponsored by state or federal agencies. One commenter
recommended removing the reference to prior converted croplands.
We disagree that use of this NWP should be limited to activities
conducted or sponsored by state or federal agencies, however, projects
not conducted pursuant to authorities of other agencies do require a
pre-construction notification. The reference to prior converted
croplands in the reversion provision is necessary, since prior
converted croplands are not considered to be waters of the United
States (see 33 CFR 328.3(a)(8)).
One commenter suggested including a definition for shellfish
seeding in the NWP. One commenter questioned whether the Corps has
regulatory jurisdiction over shellfish aquaculture and restoration
activities. Another commenter requested clarification whether pre-
construction notification is required for shellfish seeding authorized
by this NWP. One commenter recommended removing the pre-construction
notification requirement for shellfish activities that have the
approval of other government agencies with resource management
responsibilities. Two commenters said that state natural resource
agencies should be exempted from the pre-construction notification
requirements if the shellfish seeding activity is done over an
unvegetated bottom, since those activities are already addressed by
other state and Federal permit processes. Two other commenters
expressed concern that the proposed changes to the NWP would adversely
affect community-based shellfish restoration efforts, including
locally-based oyster restoration programs. They said that the pre-
construction notification requirements, or requiring any permit for
shellfish restoration, would be overly burdensome and would adversely
affect community-based programs that are already operating with
volunteer staffs, minimal budgets, and limited resources.
We are providing a definition of ``shellfish seeding'' in the
``Definitions'' section of the NWPs. This definition was derived from
the definition provided in the preamble discussion for proposed NWP D,
Commercial Shellfish Aquaculture Activities (see 71 FR 56275).
Shellfish aquaculture and restoration activities require Department of
the Army authorization, if they involve discharges of dredged or fill
material into waters of the United States and/or structures or work in
navigable waters of the United States. On-going commercial shellfish
aquaculture activities may be authorized by NWP 48 and shellfish
restoration activities may be authorized by NWP 27. New commercial
shellfish aquiculture activities may be authorized by regional general
permits or individual permits. The pre-construction notification
requirement is necessary for shellfish habitat restoration activities,
except those conducted under one of the other listed authorities, to
ensure that those projects comply with the terms and conditions of this
NWP and do not cause more than minimal adverse effects. However, the
Corps does not believe that the PCN requirement is overly burdensome
and it should not limit the ability of community-based programs to
conduct such activities.
One commenter opposed modifying this NWP to authorize shellfish
restoration activities because they believe that these projects can
have more than minimal impact on benthic habitat. One commenter said
that shellfish seeding should not be authorized by this NWP. Another
[[Page 11123]]
commenter suggested that fill placement for shellfish seeding or
shellfish bed preparation activities should not qualify for any NWP and
should only be evaluated under individual permit processes. Several
commenters recommended that shellfish seeding should be authorized by
this NWP. A number of commenters stated that shellfish seeding can be
used to protect or restore valuable aquatic habitats since construction
of oyster reefs has been used to attenuate wave energy as part of
coastal restoration strategies.
The restoration of oyster habitat, as well as the habitat of other
shellfish species, usually provides substantial benefits to the overall
aquatic environment. Shellfish help improve water quality and other
habitat characteristics of estuarine and marine waters. Shellfish
seeding is often a necessary component of restoration activities, when
the objective is to increase populations of shellfish. District
engineers will review pre-construction notifications or agreements with
other agencies to ensure that these activities result in minimal
individual and cumulative effects on the aquatic environment and other
public interest factors. In response to a pre-construction
notification, the district engineer can add special conditions to the
NWP authorization or exercise discretionary authority and require an
individual permit.
One commenter remarked that shellfish seeding practices could be
considered an aquaculture activity, and said that the requirements of
NWP 27 could be a significant barrier to aquaculture development.
Another commenter indicated that projects solely associated with
shellfish restoration could be authorized by NWP 27, but suggested that
it would be more appropriate to authorize such activities under the
proposed NWP for commercial shellfish aquaculture activities. One
commenter expressed concern that NWP 27 may overlap with NWP 48. One
commenter stated that some oyster restoration and enhancement is done
by commercial shellfishing operations that harvest only wild oysters.
In some cases, shellfish husbandry or restoration is required by other
regulatory agencies, and the commenter stated that neither NWP 27 nor
NWP 48 allow this activity. One commenter asked if each oyster bed
restoration would require a separate permit, or could an entity apply
for a single permit to cover all of their shellfish restoration
projects. They recommended establishing a single permit that any state
natural resource agency could use at any time to eliminate the need for
those agencies to obtain separate permits for numerous individual
projects.
This NWP does not authorize commercial aquaculture activities. It
authorizes shellfish habitat restoration activities, including
shellfish seeding, that are conducted to restore populations of
shellfish in navigable waters of the United States. Although these
restored shellfish populations may be harvested at a later time by
licensed fisherman, the objective of the activities authorized by this
NWP must be to restore populations of shellfish in navigable waters of
the United States. This NWP does not authorize structures or work, such
as nets and anchors, that are used to reduce or eliminate predation of
shellfish growing in these restored habitats. On-going commercial
aquaculture activities may be authorized by NWP 48, regional general
permits, or individual permits. New commercial aquaculture activities
may be authorized by regional general permits or individual permits.
This NWP authorizes single and complete shellfish habitat restoration
activities. Regional general permits or individual permits may be
issued by district engineers to authorize shellfish restoration
programs.
This NWP is reissued, with the modifications discussed above.
NWP 28. Modifications of Existing Marinas. No changes were proposed
for this NWP. One commenter said that modifications in special aquatic
sites, such as vegetated shallows or coral reefs, should require pre-
construction notification. This commenter also requested clarification
whether this NWP authorizes pile driving, and recommended requiring
pre-construction notification for such activities.
This NWP authorizes the installation of piles for the
reconfiguration of marinas. The reconfiguration of existing marinas
generally results in minimal individual and cumulative adverse effects,
since these activities are limited to areas currently used for marinas.
Therefore, it is unnecessary to require pre-construction notification
for these activities. However, division engineers can regionally
condition this NWP to require pre-construction notification for
activities in certain areas.
This NWP is reissued as proposed.
NWP 29. Residential Developments. We proposed to modify this NWP by
incorporating the residential development provisions of NWP 39, so that
there would be one NWP to authorize single unit and multiple unit
residential developments, including residential subdivisions. We also
proposed to reduce the scope of applicable waters for this NWP, by
prohibiting its use to authorize discharges of dredged or fill material
into non-tidal wetlands adjacent to tidal waters. In addition, we
proposed to require pre-construction notification for all activities.
One commenter requested that a definition of ``residential
property'' be provided. This commenter also said that this NWP should
include a provision prohibiting its use with NWP 39 to authorize mixed
use developments. Two commenters objected to including multiple-unit
residential developments in NWP 29 because they felt it is inconsistent
with the original intent of NWP 29. Several commenters stated that
including multiple-unit residential development would lead to problems
with water quality certifications or local government decisions. Two
commenters said that single-family and multi-unit developments are not
similar in nature while another questioned the need and the rational
for the proposed change.
This NWP utilizes the commonly accepted definition of what
constitutes a residential property. We do not agree that there should
be a prohibition against combining NWPs 29 and 39 to authorize mixed
use developments, because the terms and conditions of those NWPs,
including the pre-construction notification requirements and general
condition 24, Use of Multiple Nationwide Permits, will help ensure that
those activities will result in minimal individual and cumulative
adverse effects on the aquatic environment and other public interest
review factors. As discussed in the preamble of the September 26, 2006,
Federal Register notice, the proposed changes effectively eliminate the
previous NWP 29. Previously, single family residential projects could
choose between NWPs 29 and 39. NWP 39 had a higher acreage limit, but
NWP 29 could allowed activities in wetlands adjacent to tidal waters.
We have determined that that all residential projects using an NWP,
whether single-family or multi-family, should face the same set of
requirements. In particular, we have determined that residential
projects in wetlands adjacent to tidal waters should not be authorized
through an NWP, so we are combining all residential development
activities in NWP 29 and eliminating its use in wetlands adjacent to
tidal waters. We believe the \1/2\ acre limit previously included in
NWP 39 will ensure that projects undertaken only in non-tidal waters
and their adjacent wetlands will not have more than minimal adverse
effects. Limits for multi-family residential projects have not changed,
[[Page 11124]]
these activities have merely been shifted into NWP 29. States concerned
with multiple unit residential developments may add stipulations to
their water quality certifications that differentiate between single-
family and multi-unit developments. Local governments can address their
concerns over residential development through their planning and zoning
processes. Also, the Corps is expanding the pre-construction
notification requirement to include all projects authorized under this
NWP, to enhance our ability to identify projects that may have more
than minimal adverse effects.
One commenter suggested we add ``single-unit residential
subdivision'' to the list of authorized activates in the first
sentence.
We have added the phrase ``residential subdivision'' to the list of
activities authorized by this NWP. This NWP authorizes residential
subdivisions with multiple single-family units or multiple-family
units.
Several commenters objected to raising the acreage limit from \1/4\
acre to \1/2\ acre. One commenter said that the \1/2\ acre limit will
result in substantial cumulative losses of waters of the United States.
Two comments recommended acreage limits of one or two acres. One
commenter asked why the \1/2\ acre limit is not for associated multi-
unit developments when it is expressed as the limit for single-family
residences.
As noted above, the effective acreage limit for residential
projects has not been raised. We have simply removed the option of
using an NWP with a \1/4\ acre threshold to authorize single-family
projects in wetlands adjacent to tidal waters. Through the review of
pre-construction notifications, district engineers will monitor the use
of this NWP so that more than minimal cumulative adverse effects do not
occur. We disagree that increasing the acreage limit to one to two
acres would result in activities that have minimal impacts on the
aquatic environment. The \1/2\ acre limit applies to any type of
residential subdivision (single-family, multi-family, or a combination
of both), as it did previously when these projects were authorized by
NWP 39.
Some commenters objected to requiring pre-construction notification
for all activities, and suggested changing the pre-construction
notification threshold to \1/10\ acre. Three commenters proposed a \1/
10\ acre pre-construction notification threshold for single-family
developments. Three commenters supported the proposed pre-construction
notification threshold. One commenter suggested establishing a
graduated pre-construction notification threshold based on the size of
the overall development.
We are retaining the requirement for pre-construction notification
for all activities authorized by this NWP. Although this will result in
an increase in the number of pre-construction notifications submitted
to district engineers, we do not believe that it will be a substantial
increase, since many permittees proposing to construct residential
developments in the past have submitted verification requests for NWP
39 authorization even when not required to do so. The NWP 29 issued in
2002 require pre-construction notification for all proposed single
family homes. The pre-construction notification threshold will also
help ensure compliance with general condition 17, Endangered Species,
and general condition 18, Historic Properties. A graduated pre-
construction notification requirement would be unnecessarily complex
and would not provide as much assurance that only activities with no
more than minimal adverse effects are authorized.
Many commenters discussed the 300 linear foot limit for stream bed
impacts. Those comments are discussed in a separate section of the
preamble. We are retaining the 300 linear foot limit for stream bed
impacts, as well as the ability for district engineers to provide
written waivers of the 300 linear foot limit for losses of intermittent
and ephemeral stream beds.
Several commenters said that this NWP should retain the requirement
to maintain sufficient buffers adjacent to all open water bodies, such
as streams. Some commenters stated that a minimum buffer width should
be required. One commenter supported the removal of the buffer
requirement and addressing the need for riparian areas through general
condition 20, Mitigation.
The establishment and maintenance of riparian areas next to streams
and other open waters will be required by district engineers as
compensatory mitigation where necessary to ensure that the authorized
work results in minimal individual and cumulative adverse effects on
the aquatic environment. Although the NWP 29 issued in 2002 contained a
requirement to establish sufficient vegetated buffers, the counterpart
language in the 2002 NWP 39 reflected the use of vegetated buffers as
components of the compensatory mitigation plan for the NWP 39 activity,
if there were streams or other open waters on the project site.
District engineers will make determinations regarding the
appropriateness and practicability of requiring riparian areas, as well
as their width, in the implementation of general condition 20,
Mitigation.
Three commenters said that residential developments are not water
dependent activities, and therefore, under the Section 404(b)(1)
Guidelines, an NWP should not be issued unless all practicable
alternatives have been considered. Some commenters objected to
authorizing attendant features by NWP 29, because they may not be water
dependent or there may be secondary impacts associated with the
development.
An activity that is not water dependent may still be authorized by
NWP as long as an appropriate Section 404(b)(1) Guidelines analysis is
conducted when the NWP is issued. The decision documents for all NWPs,
including this NWP, that authorize discharges under Section 404 of the
Clean Water Act include a Section 404(b)(1) Guidelines analysis.
Two commenters objected to including septic fields as attendant
features and three commenters objected to including sports fields and
golf courses as attendant features. One commenter requested a
definition of the term ``integral part'' to reduce the potential for
authorizing golf courses that are not directly associated with the
residential development. One commenter objected to the use of the NWP
for large subdivisions, because of potential impacts due to sprawl,
traffic, and degradation of water quality.
Septic fields are often necessary attendant features for
residences, and should be authorized where part of a single and
complete project. Sports fields and golf courses may also be integral
attendant features of residential developments. District engineers will
determine, in response to pre-construction notifications, whether golf
courses are integral parts of the residential development. Impacts of
large subdivisions will be considered during the pre-construction
notification review process. If such projects would have more than
minimal adverse effects, these will be addressed through project-
specific special conditions or by requiring an individual permit.
One commenter requested that we define ``subdivision'' as an ``area
that involves all residences that share the attendant features.'' One
commenter urged that phased developments be prohibited since they can
result in impacts to waters that otherwise can be avoided with
comprehensive planning and permitting.
Defining the term ``subdivision'' is unnecessary as there is little
confusion
[[Page 11125]]
surrounding the term. Phased developments can be authorized by the NWP,
provided that each phase is a single and complete project and has
independent utility. When reviewing pre-construction notifications,
district engineers will take into account individual and cumulative
impacts of phased developments. We strongly support comprehensive
planning efforts undertaken by local governments as a means of reducing
impacts to the aquatic environment. Where the cumulative effects of
phased projects would be more than minimal, these will be addressed
through project-specific special conditions or by requiring an
individual permit.
Four commenters requested that the NWP authorize projects in non-
tidal wetlands adjacent to tidal waters, while two comments supported
the proposal to prohibit the use of the NWP in those areas. One
commenter requested a definition of the term ``adjacent.'' Two
commenters objected to removal of language concerning minimization of
on-site and off-site impacts, such as avoiding flooding of adjacent
lands.
Limiting the use of this NWP to non-tidal waters of the United
States, and prohibiting its use in non-tidal wetlands adjacent to tidal
waters is necessary to ensure that this NWP authorizes only those
activities with minimal individual and cumulative adverse effects on
the aquatic environment. Development along coastal waters is a growing
concern with significant potential to cause more than minimal adverse
effects, particularly cumulatively. Such projects can be authorized by
an individual permit following appropriate environmental review. The
term ``adjacency'' is defined at 33 CFR 328.3(c). For the NWPs,
including NWP 29, requirements to avoid and minimize impacts to waters
of the United States are addressed through general condition 20,
Mitigation.
District engineers will review pre-construction notifications to
ensure that all practicable on-site avoidance and minimization has been
accomplished. In response to a pre-construction notification, 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)).
One commenter said that NWP 29 should not be issued because it
results in more than minimal adverse impacts particularly when
salmonids are present. One commenter stated that this NWP should not
authorize impoundments. One commenter said that there should be an
exemption for residential developments in coastal areas in the eastern
United States.
Potential impacts to salmon species are more appropriately
addressed through regional conditions. Division engineers may
regionally condition this NWP to restrict or prohibit its use in waters
inhabited by salmonids. Impoundments may be authorized as attendant
features, after reviewing the pre-construction notification. Section
404 permits are required for discharges of dredged or fill material
into waters of the United States to construct residential developments.
Such activities do not qualify for exemptions under Section 404(f)(1)
of the Clean Water Act.
This NWP is reissued with the modifications discussed above.
NWP 30. Moist Soil Management for Wildlife. We proposed to modify
this NWP to 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.
Some commenters supported the proposed changes to this NWP, since
it will facilitate the production of large amounts of wetland/wildlife
habitat and conserve the Nation's native wildlife populations. However,
other commenters expressed concern about the use of this NWP by private
landowners, because they may be creating impoundments to increase
wildlife habitat. One commenter recommended requiring interagency
coordination to provide guidance to landowners and to help ensure land
cover types are not detrimentally converted to other land cover types.
One commenter said that expanding the NWP to apply to all landowners
would result in more than minimal cumulative adverse effects.
We believe that it is appropriate to expand the use of this NWP to
private landowners that have an interest in attracting and supporting
various species of wildlife on their land. This NWP does not authorize
the construction of impoundments, because it does not authorize new
roads, dikes, and water control structures. We believe that it is not
necessary to require interagency coordination for these activities
because only activities that do not result in a net loss of aquatic
resource functions and services are authorized. The terms and
conditions and the ability of division engineers to impose regional and
case-specific conditions on this NWP, will ensure that the activities
authorized by this NWP will result in no more than minimal individual
and cumulative adverse effects on the aquatic environment.
One commenter recommended imposing a \1/2\ acre limit on activities
conducted by private landowners. One commenter recommended adding pre-
construction notification requirements to this NWP, so that district
engineers can review proposed activities to ensure that they comply
with the terms and conditions of the NWP. One commenter indicated that
this NWP should authorize moist soil management activities for native
vegetation that are not necessarily for wildlife use.
Since this NWP authorizes only on-going wildlife management
activities involving moist soil management, we do not believe it is
necessary to impose an acreage limit or require pre-construction
notification for these activities. Division engineers can regionally
condition this NWP to require pre-construction notification, if there
are concerns for the aquatic environment or other public interest
review factors that may need to be addressed through case-specific
review of these activities. Moist soil management activities conducted
primarily for growing native plants may be authorized by other NWPs,
regional general permits, or individual permits. Restoration of wetland
meadows, forested wetlands, and other native plant communities may also
be authorized by NWP 27.
One commenter suggested changing the title of this NWP to
``Maintenance of Existing Moist Soil Management Areas for Wildlife.''
One commenter recommended modifying the ``Note'' at the end of this NWP
to acknowledge that maintenance may be exempt under Section 404(f) of
the Clean Water Act.
We do not agree that it is necessary to change the title of this
NWP, because the text of the NWP clearly states that is authorizes only
soil management for on-going, site-specific, wildlife management
activities. We have modified the ``Note'' to include a statement
concerning the section 404(f) exemption.
This NWP is reissued with the modification discussed above.
NWP 31. Maintenance of Existing Flood Control Facilities. We
proposed to remove the last sentence of the first paragraph of this
NWP. In addition, we proposed to add levees to the list of features
that can be maintained through the authorization provided by this NWP.
A few commenters stated support for the addition of levees to the
list of features that can be maintained with authorization under this
NWP. In addition, one commenter recommended that the Corps exempt or
develop a streamlined NWP for federally
[[Page 11126]]
constructed or funded levees where maintenance responsibilities for
those levees have reverted to a local agency.
We believe that the NWP program is already a streamlined permit
process and discharges associated with federally constructed and funded
flood control projects which have reverted to a local agency should
still be subject to the requirements of this NWP, including the
establishment of a maintenance baseline. At this time, we believe it is
necessary to conduct a site specific verification through the pre-
construction notification process to ensure that the adverse effects of
the project are no more than minimal. The Corps has no authority to
exempt discharges of dredged or fill material that occur in conjunction
with the maintenance of the facility, or to waive any requirement for
necessary mitigation. The inclusion of levees in this NWP does not
preclude maintenance of levees that is allowed under other NWP
authorizations, such as NWP 3.
One commenter stated that, as flood control projects constructed by
the Corps and transferred to a non-federal sponsor have a Corps-
developed Operations and Maintenance (O&M) manual, and the sponsor is
obligated to perform maintenance according to the O&M manual, the
project's as-built drawings and O&M manual should constitute the
maintenance baseline. Therefore, no maintenance baseline submittal
should be required.
The intent of this NWP is to require the submittal of a maintenance
baseline for all projects requesting authorization by this NWP. A non-
federal sponsor can submit the as-built drawings and O&M manual from a
federally-constructed or funded flood control project. In any case the
maintenance baseline must be approved by the district engineer.
Another commenter suggested that the requirement to submit best
management practices (BMPs) with the maintenance baseline documentation
be eliminated, as BMPs are addressed by several general conditions.
This commenter also requested that we clarify the important exception
that applies to this NWP in regard to the general condition 27
requirement that the district engineer must approve any compensatory
mitigation proposal before the permittee commences work. The Corps
disagrees that the requirement to submit BMPs is adequately addressed
by general conditions. We believe that inclusion of the BMPs in the
documentation is necessary so that the Corps can ensure that the
impacts associated with the activity will be no more than minimal. In
addition, the inclusion of certain BMPs may reduce the impacts to the
aquatic environment and, as a result, the required one-time mitigation
associated with establishing the baseline. The BMPs submitted with the
maintenance baseline documentation do not preclude the Corps from
requiring additional BMPs that might be necessary to ensure that the
maintenance activity results in minimal adverse effects on the aquatic
environment. Regarding mitigation approval, we believe the proposed
text of this NWP clearly states that for this NWP, the district
engineer will not delay necessary maintenance so long as the district
engineer and permittee establish a schedule for identification,
approval, development, construction and completion of any such required
mitigation. It also states that work can begin before approval of the
maintenance baseline in emergency situations.
Two commenters opposed adding levees to the list of features that
can be maintained through authorization by this NWP. One of these
commenters believed that the change constitutes more than a wording
change, because levees are large scale structures with impacts that
require a thorough assessment. The other commenter stated that levees
disrupt natural processes important to floodplains and habitat. They
also noted that the presence of levees on a stream does not transform
the stream into a flood control facility.
While we agree that the construction of levees may require a
thorough assessment of impacts on the watershed, the maintenance of
existing levees is an activity that is appropriate for inclusion in
this NWP since levees are often integral parts of flood control
facilities. This NWP does not authorize the construction of levees. We
believe that the limitations and general conditions associated with the
NWP will ensure that authorized projects will have no more than minimal
adverse effects. The requirement for an approved baseline and the
ability to require mitigation provides a safeguard for valuable
habitat. The Corps agrees that levees do not make a stream a flood
control facility. However, levees are a flood control facility and this
NWP should allow maintenance of the levees. In order for flood control
activities to occur in the stream, they would have to be included in
the maintenance baseline, as described in the text of the NWP.
One commenter observed that the text of this NWP uses the phrase
``significantly reduced capacity'' when discussing abandonment. They
stated that Regulatory Guidance Letter 87-2 discusses the ramification
of using the word ``significant'' in Corps documentation and suggested
that it be changed. Another commenter said that this NWP should not
authorize actions that need to be taken because of neglect.
We believe that the use of the word ``significantly'' in this NWP
is not contrary to the Regulatory Guidance Letter because it describes
a level of reduction in flood capacity and does not relate to any
determination of environmental impacts. If a flood control facility can
be considered abandoned because of neglect, then the NWP would not
authorize the work needed to reconstruct that facility.
Another commenter requested that the fill associated with beaver
dam control and maintenance be added to the list of features authorized
by this NWP. While the Corps agrees that the maintenance of beaver dam
control and maintenance structures may be authorized by this NWP, this
NWP does not authorize fills associated with the construction of new
structures.
Two commenters opposed removing the last sentence in the first
paragraph of this NWP (regarding types of maintenance activities that
do not require section 404 permits) because they believe that the
language clarified that vegetation maintenance does not require a
section 404 permit. The Corps believes that this sentence is
unnecessary, since Section 404 permits are only required for discharges
of dredged or fill material, and, per the regulations at 33 CFR
323.2(d)(3)(ii), vegetation removal above the ground, that does not
disturb the root system or include redeposition of excavated soil
material, is not a discharge of dredged or fill material.
One commenter stated that many existing flood control facilities
may not have met the criterion (i.e., it was previously permitted by
the Corps, it did not require a permit at the time it was constructed,
or it was constructed by the Corps and transferred to a non-federal
sponsor), or the permittee cannot provide documentation that the
criterion was met. Another commenter requested that this NWP authorize
the maintenance of projects that were built by others but accepted as
part of a federal flood control project or those that are authorized
under state or local flood control laws. Both commenters requested that
the Corps modify or eliminate the criterion listed in the first
sentence of this paragraph and authorize maintenance of any flood
control facility after approving the maintenance baseline and reviewing
the activity through the pre-construction notification process. In
addition, one commenter stated that the Corps should
[[Page 11127]]
not consider a flood control facility to be abandoned because
vegetation has become established in the facility. That commenter also
said that the NWP should compel agencies to perform maintenance more
frequently by requiring mitigation for temporal losses in vegetation or
habitat. Another commenter stated that agencies should be encouraged to
reduce the frequency of maintenance where feasible by approving
maintenance baselines that allow for less frequent maintenance. One
commenter said that this NWP should also authorize temporary
stockpiling as authorized by NWP 12.
The criteria in the first sentence of this NWP cover all properly
authorized flood control facilities. Unless a flood control facility
was constructed as a result of a Corps Civil Works project, it would
have required a Corps permit unless it was constructed in a manner that
did not require Corps authorization or it was exempt from permit
requirements. If it should have had Corps authorization but did not, we
do not think it is appropriate to authorize maintenance under this NWP.
The Corps will not generally require documentation of compliance with
these criteria, unless there is reason to believe that these criteria
are not met.
We believe that the current text accurately describes how a site
should be determined to be abandoned. The presence of vegetation does
not necessarily indicate that a flood control facility has been
abandoned. However, a site may be determined to be abandoned when
vegetation has substantially diminished the capacity of the channel. We
do not believe it is necessary to require permittees to conduct
maintenance more frequently, to prevent the establishment of vegetation
within the flood control facility. The one-time mitigation requirement
is sufficient to offset the losses of aquatic resource functions and
services that will occur as a result of keeping the facility within the
maintenance baseline. Maintenance-related discharges that do not exceed
the established maintenance baseline will not result in losses of
aquatic resources beyond those addressed at the time the maintenance
baseline is established. The frequency of maintenance will depend on
the characteristics of the flood control facility and the surrounding
area. Those flood control facilities that were constructed in more
dynamic environments generally require more frequent maintenance.
Because of the various environmental factors affecting the need for
maintenance and the physical parameters that apply to an existing
facility, it would be difficult to establish a maintenance baseline
that lessens the frequency of maintenance. We do not believe it would
be appropriate to modify this NWP to authorize temporary stockpiling of
sediments and other materials in waters of the United States. Sediments
and other materials removed during the maintenance of flood control
facilities must be deposited at non-jurisdictional areas, unless the
district engineer authorizes temporary stockpiling through a separate
Department of the Army authorization.
The previous commenter also remarked that the provisions for
emergency situations still require that the permittee submit a pre-
construction notification and wait for Corps approval before conducting
any emergency work within the flood control facility. They stated that
this requirement could compromise public health and safety, as it
typically takes one or two days, minimum, to obtain the necessary
approval to proceed. They requested deferral of the pre-construction
notification requirement until after the emergency maintenance
activities have been conducted. We believe that NWP 31, as proposed, is
a reasonable and prudent way to minimize the burdens imposed on
permittees, within the constraints of applicable law and regulation. It
is not appropriate to defer the submittal of a pre-construction
notification, due to the fact that the Corps must determine if
authorization by this NWP is applicable. The Corps has developed
specific procedures for dealing with emergency situations. Entities
responsible for maintaining flood control facilities should contact
their local Corps office well in advance of the rainy season, to
familiarize themselves with the available emergency processing
procedures for that district.
One commenter suggested that activities authorized by this NWP
instead be authorized by NWP 3. We believe that the specific
requirements of this NWP are necessary to ensure that impacts to the
aquatic environment are minimal. Incorporating these requirements into
NWP 3 would be confusing and make implementation of that NWP more
difficult.
Another commenter asserted that this NWP has the potential for more
than minimal impacts, based on the fact that there are no limits on
acreage or volume of discharges. The commenter also commented that one-
time mitigation does not adequately ensure that aquatic functions will
be restored, and that limiting mitigation to one-time will result in
more than minimal adverse impacts if mature wildlife habitat is
destroyed repeatedly. The Corps believes that activities authorized by
NWP 31 that comply with the maintenance baseline provision do not
result in more than minimal impacts, even without acreage limitations.
The establishment of the maintenance baseline, in effect, identifies
the location and physical dimensions of waters of the United States
that have been incorporated in the flood control facility. Discharges
that result in losses of these waters (i.e., that exceed the
maintenance baseline) are not eligible for authorization under NWP 31.
In light of this, we believe that the ``one-time mitigation
requirement'' imposed in conjunction with the establishment of the
maintenance baseline is sufficient for the purpose of this NWP. The
intent of the one-time mitigation is to replace the aquatic functions
that may be lost each time maintenance is performed. Once the
mitigation is in place, any aquatic functions that develop between
maintenance activities, are over and above the level of function that
existed before the initial maintenance occurred. For areas or projects
with specific issues, the division and district engineer may choose to
add regional conditions or special conditions to the NWP authorization.
One commenter made reference to a particular project containing
salmonids and stated that an NWP should not have been issued for that
particular project. The commenter objected to this NWP authorizing the
continued maintenance of the project because the salmonid habitat may
have partially recovered and would be repeatedly impacted. While we
agree that this can occur, we do not agree that requiring mitigation
over and over for what is, in effect, the same impact is appropriate.
We believe that the limitations and general conditions included within
this NWP will ensure that it will result in no more than minimal
effects. The requirement for an approved baseline and the ability to
require mitigation provides a way to safeguard valuable habitat.
This NWP is reissued as proposed.
NWP 32. Completed Enforcement Actions. We proposed to eliminate the
phrase ``For either (i), (ii), or (iii) above,'' from the last
paragraph of this NWP. In addition, we proposed to remove the phrase
``or fails to complete the work by the specified completion date.''
Two commenters suggested that the five-acre non-tidal water or one-
acre tidal water limits be eliminated. They believe that if the NWP
applied to enforcement actions with greater impacts, then the
mitigation could be completed earlier which would reduce
[[Page 11128]]
temporal losses. One commenter said that the NWP should have a limit of
two acres for wetland impacts, since the permit process, including the
opportunity for public comment, has been avoided. One commenter stated
that individual permits should be required for activities undertaken as
a result of an enforcement action. They believe that greater oversight
is appropriate for a party that broke the law.
We believe that if the unauthorized activity impacts more than five
acres of non-tidal waters or one acre of tidal waters that it may be
more appropriate to either require an individual permit review or to
pursue a judicial settlement or judgment. In cases where judicial
settlements are pursued, there is usually a comprehensive evaluation of
the environmental damage associated with the unauthorized work and
substantial mitigation and penalties. In addition, we recognize that
the limits for this NWP exceed the limits for the majority of the NWPs.
We believe however, that the requirement that non-judicial settlements
provide for environmental benefits equal to or greater than the
environmental harm caused by the unauthorized activity ensures that the
net impacts caused by the unauthorized work are no more than minimal.
The thresholds limit the maximum size of the impact area and, wherever
appropriate and practicable, restoration of this area will be required
to undo the impacts. In any case, full compensation for the impacts in
some form is required.
One commenter requested we delete the sentence stating that the NWP
does not apply to any activities occurring after the date of the court
decision, decree or agreement that are not for the purpose of
mitigation, restoration or environmental benefit. The commenter
believes that this provision limits the ability of the Corps to enter
into a settlement agreement. Another commenter requested that language
be added to the NWP to expressly prohibit its use for any future
impacts related to the existing project that is under the enforcement
action.
The Corps believes that the NWP as proposed is appropriate.
Proposed additional project impacts (e.g., impacts necessary to
complete the project that was initiated without a permit) must be
evaluated under other NWPs, regional general permits, or individual
permit review processes. This permit is intended only to authorize past
discharges along with the required compensatory activities, not to
substitute for applicable permit requirements for future activities.
One commenter remarked that the activities authorized by this NWP
do not correlate with the programmatic general permits in the
commenter's state.
The Corps acknowledges this comment, however, we believe it is
simply a statement and does not warrant any changes to the proposed
NWP.
This NWP is reissued as proposed.
NWP 33. Temporary Construction, Access, and Dewatering. We proposed
to divide the first sentence of this NWP into two sentences, to clarify
that the NWP can be used to authorize temporary activities associated
with both construction projects that do not otherwise require permits
from the Corps or the U.S. Coast Guard, and those that do require and
have obtained such permits. We also proposed to move the requirement
for a restoration plan from the ``pre-construction notification''
general condition (general condition 13 of the 2002 NWPs) to the
``Notification'' paragraph of this NWP, because it only applies to this
NWP. We inadvertently used the term ``mitigation plan'' in the
``Notification'' paragraph in the proposed NWP, and have changed it to
``restoration plan'' in the final permit. The pre-construction
notification must include a restoration plan showing how all temporary
fills and structures will be removed and the area will be restored to
pre-project conditions. The restoration plan should also describe
reasonable measures for avoidance and minimization of adverse effects
to aquatic resources. Please note that this restoration plan is
different from the mitigation requirements in general condition 20 for
permanent losses of waters of the United States. We proposed 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.
One commenter suggested that NWP 33 should also be used to
authorize temporary stockpiles and temporary fills that are related to
construction activities.
The Corps agrees that this work could potentially be authorized
under NWP 33 as long as all other conditions are met and the work is
the minimum necessary to complete the project. However, the districts
have discretion in determining if the work is the minimum necessary.
One commenter expressed concern about the last statement in this
NWP, which requires a Section 10 permit for structures left in place.
The commenter indicated this statement is contradictory since any
structures left in place would be permanent and would not qualify for
the NWP 33 anyway. The commenter recommends removing or clarifying this
statement.
This statement is intended to reiterate that if any structures are
left in place, separate authorization is required, however we have
broadened it to cover all situations where structures left in place
require separate Section 10 authorization.
Another commenter generally supported NWP 33 as proposed, but
recommended changing the word ``conditions'' to ``contours'' in the
sentence stating ``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.'' Several commenters indicated
that requiring the area to be restored to pre-project conditions may
not be beneficial when the pre-project conditions were degraded. One
commenter suggested we require the affected areas be restored to the
pre-project conditions or to a condition with greater than pre-project
habitat functions and services. Another commenter suggested saying that
the area should be returned to appropriate pre-existing stable
elevations and slope and restored with vegetation species matching the
adjacent undisturbed areas, but consistent with the purposes of the
associated project for which the temporary construction is necessary.
We agree that returning a degraded area to better than pre-existing
conditions is beneficial and we support this concept. We will not
require the area to be restored to create better habitat functions and
services, but we are not precluding this work from occurring. Removal
of temporary fills is also addressed in general condition 13 and the
language in NWP 33 has been slightly modified to match this general
condition. Any fill left in place will require separate authorization.
One commenter questioned whether the restoration plan for temporary
and permanent impacts could be included in a single plan, with any
proposed mitigation, and whether the mitigation plan must be submitted
concurrently with the pre-construction notification. Another commenter
opposed the provision requiring that a restoration plan be included in
the pre-construction notification that shows how the area will be
restored to pre-project conditions. The commenter was concerned that a
restoration plan is not always developed up front because a contractor
is often not selected until after a permit has been issued.
[[Page 11129]]
The pre-construction notification must contain a restoration plan
showing how all temporary fills and structures will be removed and the
areas restored to pre-project conditions. The restoration plan must, at
a minimum, include a general description of how restoration will be
accomplished, with as much detail as is practicable when the pre-
construction notification is submitted. We do not believe that
selection of a contractor is necessary for the development of an
appropriate restoration plan.
Several commenters requested that we clarify or define some of the
terms in NWP 33, such as cofferdam, access fill, and temporary
structure. One of the commenters also asked if the Corps considers
temporary construction pads to be a form of access that requires
authorization. They also asked if cofferdam includes structures that
only partially isolate a portion of the streambed but still allow water
to pass.
The Corps believes that cofferdam, access fill, and temporary
structure are widely used and accepted terms. The Corps is hesitant to
place strict definitions on these terms. The Corps does consider
temporary construction pads to be a form of access that can be
authorized under NWP 33 and we do consider a structure that partially
blocks a portion of the streambed to be a cofferdam that could be
authorized by NWP 33.
One commenter suggested that notification should not be required
for temporary impacts that last less than 24 hours, when used with Best
Management Practices. Another commenter requested we include a limit on
the duration of impacts, such as 48 hours. Another commenter requested
that the Corps consider an exemption to the pre-construction
notification requirement if the temporary fill is a mat instead of
dirt, or a stabilized material, and it is in place for only a short
time, such as 48 hours. This commenter also suggested that the Corps
allow an exemption to the pre-construction notification requirement for
minor amounts of temporary impacts. A commenter questioned whether a
water-inflated cofferdam would be considered de minimus and be exempt
from submitting a pre-construction notification. Several commenters
recommended that a PCN should not be required for temporary
construction access roads and other construction activities covered
under NWP 33, unless the discharge causes the temporary loss of greater
than \1/10\ acre of waters of the United States.
We have modified NWPs 3, 12, and 14 to address concerns regarding
pre-construction notification and temporary impacts to waters of the
United States. In particular, we are not requiring separate
authorization under NWP 33 for temporary impacts associated with
activities authorized under these three NWPs. Therefore, we are
retaining the pre-construction notification requirements from the
September 26, 2006, proposal for NWP 33. We have modified the text of
this NWP to require restoration of affected areas to pre-construction
elevations, with revegetation, as appropriate, to be consistent with
the changes to general condition 13, Removal of Temporary Fills.
This NWP is reissued with the modification discussed above.
NWP 34. Cranberry Production Activities. We proposed to rearrange
the text of the NWP and to eliminate the phrase ``provided the activity
meets all of the following criteria''. In addition, we proposed to
eliminate the requirement for delineations of special aquatic sites
from the text of the NWP, since this is a requirement of general
condition 27.
One commenter requested clarification of the last part of the last
sentence which reads ``. . .and the NWP would authorize that existing
operation, provided the 10-acre limit is not exceeded.'' Another
commenter recommended reducing the acreage limit to \1/2\ acre. This
commenter also said that pre-construction notifications must clearly
indicate areas to be impacted by the proposed activity.
We believe that the text of this NWP is clear. This NWP only
authorizes activities associated with existing cranberry production
operations, such as expansion, reconfiguration or leveling. The NWP
provides authorization for these types of activities, provided the
total impacts to waters of the United States during the 5-year term of
the NWP do not exceed 10 acres. It does not authorize the construction
of new cranberry production operations. Since this NWP authorizes only
existing cranberry production activities, the 10-acre limit is
appropriate because these areas remain as wetlands, even though they
are managed to improve cranberry production. General condition 27
requires prospective permittees to submit delineations of waters of the
United States with their pre-construction notifications, so that the
impacts of the proposed activity can be assessed.
Some commenters asserted that the activities authorized by this NWP
will result in more than minimal adverse impacts, individually and
cumulatively. These commenters also requested that the Corps not
reissue this permit as it violates section 404(e) of the CWA and the
section 404(b)(1) Guidelines. In addition, they remarked that it is
unclear how the permittee would determine whether a net loss occurs.
They were concerned that permittees would claim that converting a
natural wetland to a cranberry bog does not result in a net loss of
wetlands and as a result these losses would not be counted. In
addition, one commenter remarked that the Corps should not rely on
compensatory mitigation to offset the potential adverse impacts
associated with conversion of wetlands to cranberry bogs.
We believe that the activities authorized by this NWP will not have
more than minimal impacts both individually and cumulatively. This NWP
authorizes activities associated with the expansion, enhancement, or
modification of existing cranberry operations. This NWP does not
authorize new operations. Regarding the determination of net loss, this
NWP requires pre-construction notification. The district engineer will
determine if the proposed project would result in a net loss of wetland
acreage, not the permittee. In making this determination, the Corps
would consider conversion of natural wetlands to cranberry bogs a loss
of waters. We believe the pre-construction notification requirement
gives district engineers the ability to assess the impacts to aquatic
resources and, if the acreage limit is exceeded or if otherwise
warranted, exercise discretionary authority and require an individual
permit. The individual permit process includes case-specific reviews to
ensure compliance with the Section 404(b)(1) Guidelines. In addition,
division and district engineers will condition such activities where
necessary to ensure that these activities will have no more than
minimal adverse effects on the aquatic environment, individually and
cumulatively. The Corps believes that this NWP is fully in compliance
with section 404(e) of the Clean Water Act.
One commenter stated that the Corps' limited cumulative effects
data suggests a reduction in average impacts associated with this NWP.
They added that this reduction appears to be due to cranberry
production activities being authorized under state or regional general
permits.
We believe that the use of state programmatic and regional general
permits to authorize cranberry operations are appropriate. All general
permits must have no more than minimal adverse effect. Regional general
[[Page 11130]]
permits developed in consideration of local and regional issues have
been determined to have minimal impacts both individually and
cumulatively. As with the NWPs, regional general permits also enable
the district engineer to exercise discretionary authority to require
individual permit review, where appropriate.
The NWP is reissued as proposed.
NWP 35. Maintenance Dredging of Existing Basins. We proposed to
change the phrase ``disposed of'' to ``deposited at'' in the text of
this NWP.
One commenter suggested the NWP be modified to allow disposal of
dredged material (e.g., sand and gravel) in the littoral system.
We believe the placement of dredged material at upland sites with
the implementation of proper siltation controls helps to ensure minimal
impacts on the aquatic environment, individually and cumulatively. We
agree that beneficial use of dredged material, including placement of
suitable material on beaches or in the littoral zone, can provide
environmental benefits. However, such activities can result in
unintended adverse environmental effects, and therefore require
detailed and comprehensive analysis of sediment and littoral processes.
We believe that an individual permit is the appropriate mechanism for
authorizing this use of dredged material and that it should not be
permitted under this NWP.
Another commenter requested that we require pre-construction
notification to help determine whether dredging activities authorized
under this NWP may indirectly adversely impact adjacent beaches and
near shore habitat.
Generally, dredging of existing basins does not result in
substantial adverse impacts to adjacent beaches and/or near shore
habitat when proper siltation controls are used, as required by this
NWP. We disagree that pre-construction notification is necessary for
these dredging activities since division engineers have the ability to
impose regional conditions, including the requirement for pre-
construction notifications for certain activities, to ensure minimal
adverse effects on the aquatic environment, individually and
cumulatively.
One commenter remarked that we should provide clarification on the
applicability of this NWP to existing access channels and mooring
facilities.
This NWP authorizes excavation and removal of accumulated sediment
for maintenance of existing basins provided that the activity complies
with its terms and conditions.
This NWP is reissued as proposed.
NWP 36. Boat Ramps. We proposed to modify this NWP to allow
district engineers to waiver the 50 cubic yard limit for discharges of
dredged or fill material into waters of the United States to construct
a boat ramp. We also proposed to allow district engineers to waiver 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 adverse effects on the aquatic environment and
other factors of the public interest will be minimal.
Many commenters supported the discretion vested in district
engineers to waive the limitations imposed by this NWP, however one
commenter objected to the flexibility provided to the district
engineers and suggested activities that exceed 50 cubic yards or 20
feet in width be evaluated under an individual permit process. Another
commenter requested we include guidelines for when and to what degree
the district engineer would apply waivers to the 50 cubic yard fill
limit and/or 20-foot width limit to avoid inconsistencies.
We believe deference must be given to district engineers' expertise
and knowledge of the local aquatic environment, as well as his/her
assessment of information submitted in pre-construction notifications,
to make case-specific determinations on the effects to the aquatic
environment. The proposed pre-construction notification requirement for
discharges that exceed 50 cubic yards or 20 feet in width will enable
the district engineer to evaluate the direct, indirect and cumulative
effects of a proposed activity to determine whether a waiver is
appropriate or an individual permit is required. Because of the
inherent variability across the nation, we disagree that it is
necessary or appropriate to establish guidelines for the application of
the waiver. We expect district engineers to formulate their case-
specific determinations on the appropriateness of the waiver based on
the unique characteristics of the local aquatic environment and in
consideration of the specific circumstances of the proposed activity.
One commenter noted that boat ramps are hardened surfaces that
diminish near shore or bank habitat and asserted that pre-construction
notification should be required along with mitigation.
We believe that the discretion vested in district engineers to
issue special conditions on a case-specific basis, including
requirements for appropriate and practicable mitigation (see general
condition 20), will ensure that losses to the aquatic environment are
adequately offset. We also believe that the ability of division
engineers to impose regional conditions for certain activities will
ensure minimal adverse effects on the aquatic environment, individually
and cumulatively.
Two commenters indicated that the case-by-case waiver of the 50
cubic yard and 20-foot width discharge limits should also require the
Corps to coordinate with appropriate federal and state natural resource
agencies.
We disagree it is necessary to coordinate with federal and state
natural resource agencies prior to the district engineer determining
whether to grant a waiver for those activities that exceed the 50 cubic
yard fill limit and/or 20-foot width limit. District engineers have the
aquatic resources expertise to determine whether activities will result
in more than minimal adverse effect on the aquatic environment.
One commenter noted that activities authorized under this NWP do
not require Department of the Army authorization in Section 404-only
waters unless there is more than incidental fallback.
Discharges in waters of the United States that are not otherwise
exempt from regulation require Corps authorization. We acknowledge that
the Corps does not regulate excavation under section 404 in instances
when there is only incidental fallback.
This NWP is reissued as proposed.
NWP 37. Emergency Watershed Protection and Rehabilitation. We
proposed to rearrange the text of this NWP to match the other permits.
In the final permit, we have added two additional types of activity
(reclamation of abandoned mine lands pursuant to Title IV of SMCRA and
the Emergency Conservation Program administered by the Farm Service
Agency) that may be authorized.
One commenter supported the reissuance of this NWP without change,
since they regularly partner with the Natural Resources Conservation
Service on emergency projects. Another commenter expressed concerns
that NWP 37 does not contain specific requirements for conducting
repair work and it only includes generic references to environmentally
defensible approaches. The commenter agreed that allowing the work to
commence immediately (with follow-up permitting as necessary) may be
desirable due to the urgency of some disaster responses; however, they
indicated that the process may be prone to uncertainty about
requirements and may cause more than minimal harm to the aquatic
resources. The commenter indicated that activities
[[Page 11131]]
are funded by the Natural Resources Conservation Service but not always
implemented by the agency, so people with limited experience may be
completing the work. The commenter suggested that work should only be
allowed to proceed prior to verification where a damage response team
comprised of federal and state agencies have developed the site
specific plans for damage repair.
We believe that in some cases the urgency of the activities
authorized by this NWP requires an expedited process. All activities
require pre-construction notification, and as a general matter, the
prospective permittee should wait until the district engineer issues an
NWP verification before proceeding with the watershed protection and
rehabilitation activity. A watershed protection and rehabilitation
activity may proceed immediately only in those cases of true
emergencies (i.e., where there is an unacceptable hazard to life or a
significant loss of property or economic hardship will occur). Where
practicable, permittees are encouraged to consult informally with the
Corps before proceeding with emergency activities. In cases where
emergency watershed protection and rehabilitation activities were
conducted prior to receiving an NWP verification, the district
engineer, after reviewing the pre-construction notification, may
modify, suspend, or revoke the NWP authorization through the procedures
at 33 CFR 330.5. All of the projects authorized by this permit are
conducted under the sponsorship of another Federal resource management
agency. Those agencies, not the Corps, have the responsibility to
determine whether the project complies with their program authority.
The Corps must determine the applicability of the NWP to the specific
project, but for the most part, the Corps only reviews the proposed
work to determine compliance with the requirements of the NWP and the
general conditions. We believe that any specific concerns should be
addressed through regional conditions or through consultation with the
sponsoring agency.
A couple of commenters recommended adding Title IV of the Surface
Mining Control and Reclamation Act, which governs the abandoned mine
land reclamation program, to proposed NWP E, Coal Remining Activities.
One commenter suggested adding to NWP 37 work funded by the Farm
Service Agency under its Emergency Conservation Program, which
rehabilitates farmland damaged by natural disasters.
As discussed below, we have revised proposed NWP E (now designated
as NWP 49), to authorize abandoned mined land reclamation activities
that also involve coal extraction activities. However, for those
abandoned mine land reclamation activities that do not involve coal
extraction, we believe it is more appropriate to authorize these
activities under NWP 37, since they help protect and rehabilitate
watersheds, and have revised the text of the NWP accordingly. In cases
where it is necessary to conduct an emergency abandoned mine
reclamation activity immediately, the project proponent may proceed
with the work (see paragraph (d)(3) of general condition 27) while the
district engineer reviews the pre-construction notification. For
clarity, we have also added a new paragraph to this NWP that is
consistent with paragraph (d)(3) of general condition 27. We have also
added Emergency Conservation Program activities funded by the Farm
Service Agency, which provides cost-share assistance to eligible
participants to rehabilitate farmland damaged by floods, hurricanes, or
other natural disasters. The implementing regulations for the Emergency
Conservation Program are found at 7 CFR part 701.
The NWP is reissued, with the modifications discussed above.
NWP 38. Cleanup of Hazardous and Toxic Waste. We proposed 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 also proposed to move the
last sentence of this NWP to a ``Note'' at the end of the NWP.
One commenter requested this NWP be revoked, because the cleanup of
hazardous waste has the potential to cause adverse effects during and
after the activities. The commenter indicated that remedial activities
in navigable waters and wetlands need site-specific review, evaluation
and permitting to ensure proper design, appropriate restoration, and
long term stability.
This NWP requires pre-construction notification to the Corps. We
believe our review under this NWP is sufficient, since the activities
authorized must be performed, ordered, or sponsored by a government
agency with established legal or regulatory authority.
Another commenter suggested the expansion of this NWP to allow
removal of waste material, such as trash, debris, detritus, or rubble,
in waters of the United States. The commenter suggested that the NWP
should be modified to authorize the immediate removal of the waste and
the notification to the Corps after the material has been removed.
In general, the removal of waste material should not require Corps
authorization, unless the activity involves discharges of dredged or
fill material into waters of the United States and/or structures or
work in navigable waters of the United States. Temporary access to
remove the material may be authorized by NWP 33. Restoration of the
affected area may be authorized under NWP 27.
One commenter requested clarification regarding the applicability
of NWP 38 for emergency response to an oil release in waters of the
United States from electrical equipment that is not covered by a Spill
Prevention, Control, and Countermeasure (SPCC). The releases are
governed by EPA's polychlorinated biphenyl spill response regulations
(40 CFR part 761). Because the activities are not included in a SPCC
Plan, they are not authorized by NWP 20. The work that is required must
be initiated within 24 or 48 hours of discovery of the release, so the
commenter requested that either NWP 20 be modified or the pre-
construction notification requirement under NWP 38 be removed in
situations where the response time is critical.
Instead of modifying this NWP, we have modified NWP 20 to include
coverage of response to spills not covered by a SPCC Plan, but
otherwise required to be initiated in a short time frame by another
government agency, such as EPA's polychlorinated biphenyl spill
response regulations at 40 CFR part 761.
This NWP is reissued as proposed.
NWP 39. Commercial and Institutional Developments. We proposed to
modify this NWP by moving the provisions authorizing residential
developments to NWP 29, requiring pre-construction notification for all
activities authorized by this NWP, and applying the 300 linear foot
limit to ephemeral streams.
Three commenters objected to moving residential developments from
NWP 39 to NWP 29 because these developments are inconsistent with the
original intent of NWP 29. Six commenters supported removing
residential developments stating that the impacts associated with
residential developments are not the same as commercial and
institutional developments. Three commenters desired the ability to use
multiple NWPs with NWP 39 for mixed-use developments, such as housing
and commercial. One commenter did not support removing residential
development from this NWP because mixed-use developments would lead to
more than minimal impacts if multiple NWPs were used.
As discussed in the preamble to the September 26, 2006, Federal
Register
[[Page 11132]]
notice, the proposed changes effectively eliminates the previous NWP
29. We do not believe that NWP 39 will result in more than minimal
individual and cumulative adverse effects, on the aquatic environment
if it is used with other NWPs in accordance with general condition 24,
Use of Multiple Nationwide Permits.
Two commenters recommended allowing the NWP to be used in non-tidal
wetlands adjacent to tidal waters, while another agreed with the
proposed language to exclude its use from these wetlands. One commenter
declared that the NWP should not be used in wetlands accessible to
anadromous fish or in difficult-to-replace aquatic environments. One
commenter wanted the acreage limit increased to 5 acres and another
recommended it be decreased to \1/4\ acre so that it reflects the
limits in the previous version of NWP 29.
We believe that restricting the types of wetlands the NWP applies
to is an appropriate method of assuring that minimal adverse impacts
are not exceeded. Division engineers may regionally condition or revoke
this NWP in certain areas or for certain activities if they believe the
NWP would result in more than minimal impacts. Increasing the acreage
limit to 5 acres would likely result in activities that will have more
than minimal individual and cumulative adverse effects on the aquatic
environment. Reducing the acreage limit to \1/4\ acre would cause many
projects that do have minimal adverse impacts to be evaluated under the
individual permit process.
Many commenters supported retaining the language requiring
sufficient vegetated buffers to be maintained adjacent to all open
water bodies, such as streams. One commenter requested an unspecified
minimum vegetated buffer width while two commenters suggested a 200
foot setback from streams containing anadromous fish. One commenter
supported removing of the buffer language and relying on paragraph (d)
(now designated as paragraph (f)) of general condition 20.
In general, the Corps agrees that buffers (i.e., riparian areas)
are necessary to protect streams and other open waters. District
engineers will make determinations regarding the need for and amount of
required riparian areas in the context of general condition 20,
Mitigation.
One commenter stated that including the expansion of commercial or
institutional buildings will lead to piecemealing projects and result
in more than minimal impacts on the aquatic environment. Five objected
to removing language concerning avoidance and minimization to the
maximum extent practicable. Two commenters suggested maintaining
language requiring a conceptual mitigation plan. Several commenters
recommended retaining the language concerning single and complete
projects. Two commenters asserted that maintaining language addressing
minimal change to flow and water quality was necessary. Two commenters
objected to removal of language concerning minimizing on-site and off-
site impacts, such as avoiding flooding of adjacent lands. Another
commenter objected to removing ``many'' of the restrictions in the
NWPs, including this one. One commenter suggested that problems will
occur without the language about ``single and complete projects.''
We disagree with these comments. Requirements for avoidance and
minimization, management of water flows, and water quality are provided
in the NWP general conditions. Removal of language from the permit text
itself does not affect the applicability of requirements contained in
Corps regulations and in the NWP general conditions. We have repeatedly
emphasized in this preamble that permittees must review the general
conditions before using any NWP to ensure that they are meeting all
requirements for its use. District engineers will review pre-
construction notifications to ensure that all practicable on-site
avoidance and minimization has been accomplished. In response to a pre-
construction notification, 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)).
Several commenters objected to the mandatory pre-construction
notification requirement and suggested a pre-construction notification
threshold of \1/10\ acre or greater than 300 feet of stream loss. Some
of these commenters reasoned that eliminating the \1/10\ acre pre-
construction notification threshold would be a disincentive to avoid
the loss of waters of the United States. Two commenters supported the
proposed pre-construction notification requirement.
We disagree that the pre-construction notification threshold should
be \1/10\ acre. We acknowledge that this will result in an increase in
the number of pre-construction notifications district engineers
receive, however, we are proposing to simplify the information required
in a pre-construction notification (see general condition 27) to reduce
the paperwork burden on prospective permittees. Requiring notification
for all activities authorized under NWP 39 will help ensure adverse
minimal effects.
Thirteen commenters wrote concerning impacts to streams and the use
of waivers. See the discussion regarding this topic, above.
One commenter stated that projects authorized by this NWP are not
water-dependent and should not be permitted.
We agree that most commercial and institutional developments are
not water dependent activities. This does not mean that they cannot be
permitted, only that they undergo an alternatives analysis (see the
EPA's 404(b)(1) Guidelines at 40 CFR part 230). Although analysis of
off-site alternatives is not required for general permits, each
proposed project is evaluated to determine whether avoidance and
minimization has been accomplished on the project site to the maximum
extent practicable (see general condition 20, Mitigation). In addition,
the activity is not authorized under an NWP if the adverse impacts to
waters of the United States are more than minimal.
This NWP is reissued as proposed.
NWP 40. Agricultural Activities. We proposed to modify this NWP to
require pre-construction notification for all activities, authorize the
construction of farm ponds in waters other than perennial streams, and
remove certain restrictions on who could use the NWP.
One commenter wanted to retain the paragraph numbering of the 2002
NWP. Another commenter said that this NWP should be limited to USDA
program participants.
The Corps believes the revised numbering system is appropriate and
easy to understand. This NWP should not be limited to USDA program
participants, since there are agricultural activities being conducted
by non-participants that result in minimal adverse effects on the
aquatic environment which are appropriately authorized by NWP.
One commenter opposed reissuance of NWP 40 because of unacceptable
impacts to wetlands. Two commenters did not support eliminating the \1/
2\ acre limit per farm tract on impacts to waters of the United States,
and one commenter recommended reducing the acreage limit to \1/10\
acre. One commenter expressed concern that removing farm tracts as the
basis for the acreage limit would result in use of this NWP to
authorize discharges of dredged or fill material for non-agricultural
activities. One commenter stated that
[[Page 11133]]
roadside stands should not be considered farm buildings for
authorization under this NWP. One commenter recommended retaining the
\1/10\ acre threshold for pre-construction notification. One commenter
stated that pre-construction notification should not be required for
projects conducted under USDA programs.
We believe the requirement for pre-construction notifications for
all activities and the case-by-case review by district engineers will
ensure that activities authorized by this NWP result in no more than
minimal individual and cumulative adverse effects to the aquatic
environment and other public interest review factors. The district
engineer will add case specific conditions and require mitigation when
needed to ensure impacts do not exceed the minimal level, and will
assert discretionary authority to require an individual permit when
impacts are more than minimal. Due to differences in program
requirements between USDA programs and Section 404 of the Clean Water
Act, it is not possible to ensure that activities conducted under USDA
programs will necessarily comply with Section 404 requirements and have
minimal adverse impact to waters of the United States. Therefore, we
are retaining the pre-construction notification requirement for USDA
program participants and projects. We have removed the reference to
``farm tracts'' because we have found that it caused confusion in the
past. The limit applies to each single and complete project (see
definitions section). District engineers will determine during the pre-
construction notification process whether the acreage limit is
satisfied. Eliminating the use of farm tracts would not expand the use
of this NWP to non-agricultural activities. The text of this NWP
clearly states that it authorizes only agricultural activities.
One commenter objected to authorizing farm ponds in wetlands and
two objected to authorizing farm ponds in non-tidal waters excluding
perennial streams. One commenter supported the use of NWP 40 for
construction of farm ponds only in streams without aquatic life use
designations. Another commenter said that the proposed modification was
unnecessary, since many farm ponds are constructed outside of waters of
the United States or they are exempt from section 404 permit
requirements because of the exemption at Section 404(f)(1)(C) of the
Clean Water Act. This commenter expressed concern that the proposed
changes to NWP 40 would require landowners to submit pre-construction
notifications for all farm ponds, even if they are not constructed in
waters of the United States or they qualify for the section 404(f)
exemption.
We are limiting the construction of farm ponds to certain types of
waters where the adverse effects to the aquatic environment are likely
to be minimal, individually and cumulatively. This NWP does not
authorize the construction of farm ponds in perennial streams. Under
this NWP, farm ponds may be constructed in non-tidal wetlands,
intermittent streams, and ephemeral streams. Pre-construction
notification is required for all activities authorized by this NWP, so
that district engineers will have the opportunity to review each
proposed activity to determine whether the adverse effects on the
aquatic environment will be minimal. If the construction of a farm pond
does not involve discharges of dredged or fill material into waters of
the United States, or if it qualifies for a Section 404(f) exemption,
the project proponent is not required to submit a pre-construction
notification. This NWP authorizes the construction of farm ponds that
involve discharges of dredged or fill material into waters of the
United States and do not qualify for the Section 404(f)(1)(C)
exemption, because of the recapture provision at Section 404(f)(2). We
have added a sentence to the ``Note'' at the end of this NWP to clarify
that this NWP is used to authorize the construction of farm ponds that
are not exempt under Section 404(f).
One commenter was concerned about negative impacts to salmonids
from agriculture activities. Of main concern was placement of farm
buildings in wetlands and streams, discharges from drainage tiles into
farm ditches that were built in salmonid streams, and levee maintenance
that degrades salmonid habitat and riparian areas.
Potential adverse impacts from these activities will be addressed
during the pre-construction notification review. Water quality issues
are also addressed during Section 401 water quality certification or by
a Clean Water Act Section 402 permit.
Two commenters stated that the proposed permit will destroy wetland
acres. One commenter stated that the loss of prairie potholes and
western glaciated potholes will be staggering. Another commenter stated
that discharges into playas, prairie potholes, and vernal pools should
not be allowed under NWP 40.
The \1/2\-acre limit for this NWP applies to the loss of waters
associated with activities authorized by this NWP. During the pre-
construction notification review process, if the district engineer
determines that adverse effects to aquatic resources are more than
minimal, individually or cumulatively, he or she will impose special
conditions to reduce the impacts to the minimal level or assert
discretionary authority and require an individual permit. In addition,
division engineers may add regional conditions to this NWP to restrict
or prohibit its use in certain types of waters, if discharges into
those waters for agricultural activities would result in more than
minimal adverse effects on the aquatic environment. General condition
20, Mitigation, requires district engineers to determine appropriate
and practicable mitigation necessary to ensure that impacts are no more
than minimal. The Corps believes the pre-construction notification
requirement for all activities and the case-by-case review by district
engineers will ensure that activities authorized under this NWP will
result in no more than minimal individual and cumulative adverse
effects to the aquatic environment. The Corps notes that the acreage
and linear foot limits in the NWPs apply only to waters that are
jurisdictional under the Clean Water Act.
One commenter stated that the Corps now proposes to ignore impacts
to waters of the United States associated with agricultural dredge and
fill activities that are deemed exempt under Section 404(f) of the
Clean Water Act.
This NWP authorizes certain agriculture activities that are not
eligible for the exemptions under Section 404(f) of the Clean Water
Act. Those agricultural activities that qualify for the Section 404(f)
exemptions do not require a Section 404 permit. This has always been
the case; it is not a change from current practice.
One commenter stated that the possible waiver for the relocation of
greater than 300 linear feet of existing serviceable drainage ditches
constructed in intermittent and ephemeral streams would result in more
than minimal adverse impacts. Another commenter said that the provision
authorizing the relocation of existing serviceable drainage ditches
constructed in non-tidal streams should be conditioned to ensure that
the activity does not result in a reduction in base flow to the stream.
In response to a pre-construction notification for the proposed
relocation of greater than 300 linear feet of existing serviceable
drainage ditches constructed in intermittent or ephemeral streams, the
activity is not authorized unless the district engineer issues a
written waiver after determining that the activity will result in
minimal adverse effects on the aquatic environment. The relocation of
[[Page 11134]]
drainage ditches must also comply with general condition 9, Management
of Water Flows, to maintain the capacity of those waters to the maximum
extent practicable.
Several commenters stated that some language in the NWP was
confusing or needed clarifying. This included the phrase ``ditches
constructed in waters of the United States'', whether the permit
applies to farm tracts or the entire farm, and the concept of
``necessary for agriculture production''.
We have removed the definition of ''farm tract'' and the conditions
limiting the use of NWP 40 on a particular site, since district
engineers will receive pre-construction notifications for all
activities authorized by this NWP. District engineers will review pre-
construction notifications for those NWPs to ensure that the proposed
work results in minimal individual and cumulative adverse environmental
effects. We believe that the other terms are self-explanatory.
Determining whether an activity is necessary for agriculture production
involves some discretion, which the district engineer will apply when
evaluating pre-construction notifications for proposed projects.
One commenter said that this NWP should not authorize the
construction of livestock watering ponds unless the applicant submits
documentation showing that he or she has obtained government assistance
for the construction of the pond, and that no feasible alternatives are
available that would avoid discharges into waters of the United States.
This commenter supported the proposed prohibition against constructing
farm ponds in perennial streams, but also recommended that the NWP
prohibit the construction of farm ponds in oxbows or lakes. Another
commenter stated that NWP 40 should authorize the construction of
aquaculture ponds.
We do not agree that it is necessary to require prospective
permittees to obtain government assistance as a condition of
authorization under this NWP. General condition 20, Mitigation,
requires permittees to avoid and minimize adverse effects to waters of
the United States to the maximum extent practicable on the project
site. District engineers will also review pre-construction
notifications to ensure compliance with the terms and conditions of
this NWP, including general condition 20. If a farm pond is proposed to
be constructed in an oxbow or a lake, the district engineer will review
the pre-construction notification to determine if the activity will
result in minimal adverse effects. In addition, division engineers may
also regionally condition this NWP to restrict or prohibit its use to
construct farm ponds in certain categories of non-tidal waters of the
United States. We believe that construction of aquaculture ponds is a
distinct activity that should not be authorized under this NWP because
there may be unique issues associated with it (e.g., invasive species
concerns, changes in water quality). Ponds constructed for purposes
other than conventional agriculture may be authorized under other
general permits or individual permits.
This NWP is reissued as proposed.
NWP 41. Reshaping Existing Drainage Ditches. We proposed 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 also proposed to remove the sentence that 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 is exempt under Section 404(f)(1)(C) of
the Clean Water Act, and does not require a section 404 permit. This
exemption does not apply to the reshaping of existing drainage ditches,
so landowners have a disincentive to reshape their ditches, even though
such reshaping can be beneficial to the aquatic environment. This NWP
authorizes those 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, which facilitates the removal of nutrients and other
chemical compounds through biogeochemical processes. Slower water flow
rates through the ditch should also decrease erosion, further improving
water quality.
We proposed 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.
Some commenters supported the modifications to this NWP because
they encourage landowners to maintain drainage ditches in a manner that
benefits the aquatic environment. Several commenters also agreed with
the proposal to remove the prohibition against permanent sidecasting of
excavated materials into waters of the United States. Several other
commenters did not support allowing permanent sidecasting of material
excavated from reshaped ditches. These commenters suggested that the
sidecasting would have adverse impacts that exceed the water quality
improvements. One commenter suggested we provide conditions on the
sidecast material, such as requiring the fill to be no higher than 18
inches, so that the hydric soils will retain their hydric
characteristics. They also suggested requiring random distribution of
the material and that the sidecast should not interfere with surface
water flows. Another commenter indicated that permanent sidecasting
that isolates wetlands on-site, rendering them non-jurisdictional,
should not be allowed.
The exemption at 404(f)(1)(C) allows sidecasting, but prohibits
reshaping drainage ditches. This NWP provides an incentive to improve
water quality through reshaping the drainage ditches while still
allowing sidecasting of the material. The Corps believes that allowing
the sidecasting under this NWP will encourage landowners to reshape
existing drainage ditches in favor of water quality improvements
instead of conducting traditional maintenance activities. The Corps
recognizes the need to ensure that the sidecasting has minor impacts on
the aquatic environment and does not isolate wetlands. Regional
conditions may be added to ensure that the individual and cumulative
impacts are minimal. We note that the presence of a man-made berm
between wetlands
[[Page 11135]]
and adjacent waters does not necessarily make the wetlands non-
jurisdictional.
Some commenters suggested that many drainage ditches are within
what was a historical stream that has been straightened and many of
these drainage ditches are used by anadromous salmonids as transport to
upstream spawning grounds and for juvenile rearing. One commenter
suggested this NWP should not be used in waterbodies bearing salmon
where a state or federal watershed analysis or limiting factors
analysis has determined that off-channel rearing habitat is limiting or
potentially limiting to salmonid production. The commenters indicated
that an individual permit should be required for work in ditches that
are accessible to anadromous salmonids. The commenter suggested if this
NWP is utilized in such waterbodies, a regional condition should
require a delineation of pools and riffles and that reshaping be
conducted in a manner that does not reduce volume and surface area of
pools or other suitable low velocity habitat.
The Corps agrees that these are important concerns but they only
relate to certain areas. Division and district engineers will impose
regional conditions or case-specific conditions, so that adverse
effects to salmon species that utilize these drainage ditches are
minimal, individually and cumulatively.
One commenter suggested this NWP should allow for the restoration
of ditches that lose their original shape, become vegetated, and obtain
characteristics of wetlands due to long ditch maintenance cycles, which
are often greater than 20 years.
The Corps believes that this NWP may potentially be used in such
areas in cases where the purpose of the work is to improve water
quality. However, to be eligible to use this NWP, the drainage ditches
must be currently serviceable and not so degraded that the area appears
to have more the characteristics of a wetland than those of a drainage
ditch.
One commenter suggested this NWP should authorize reshaping of
natural drainage features. The commenter indicated that reshaping
unvegetated streambeds, channels, and watercourses with vertical banks
subject to continuous erosion would provide flatter and vegetated side
slopes, which would improve water quality.
We do not agree that this NWP should be modified to authorize
alterations to the geomorphology of natural streams and other waters of
the United States. Such changes to natural waterbodies may result in
more than minimal adverse effects to the aquatic environment. Other
forms of Department of the Army authorization may be more appropriate
to authorize this type of work.
Another commenter indicated that the amount of change in reshaping
is not specified.
We do not believe it is necessary to place a limit on the cubic
yards of change that can occur with this permit. We believe if the
purpose is to reshape the ditch and improve water quality, an upper
limit does not need to be specified.
One commenter indicated that the term ``* * * ditches constructed
in waters of the United States'' is confusing and suggested changing it
to ``serviceable drainage ditches which were constructed in regulated
wetlands or by channelizing waters of the United States.'' Another
commenter stated that the Corps has too narrowly defined what
constitutes a drainage ditch. The commenter indicated that a large
number of streams in the United States have had some channelization and
some people refer to these water bodies as drainage ditches. The
commenter is concerned that some natural waterbodies will be reshaped,
which would actually reduce water quality.
We believe the current phrasing is simple and concise, since
jurisdictional wetlands are waters of the United States. This NWP is
intended for currently serviceable drainage ditches and the
applicability of the NWP can be determined on a case-by-case basis by
the district engineers. This NWP does not authorize the channelization
of existing streams and it does not authorize the relocation of those
streams. In addition, this NWP does not authorize the reshaping of
natural waterbodies. If a ditch has become incised, this NWP may
potentially be used to reshape the ditch, thereby making it more
stable.
Another commenter is concerned about the lack of required
documentation or demonstration of how the proposed reshaping will meet
this basic condition of NWP eligibility. The commenter also questioned
why the Corps does not define the term ``improving water quality'' and
does not explain how to evaluate a project that improves some aspects
of water quality, but harms others. One commenter suggested a wording
change to say, ``for the purpose of stabilizing eroded banks'' instead
of ``for the purpose of water quality.'' The commenter indicated that
saying the work is for the purpose of improving water quality is vague
and subject to misinterpretation.
The work authorized by this permit is designed to improve water
quality by regrading the drainage ditch with gentler slopes, which can
reduce erosion, increase growth of vegetation, and increase uptake of
nutrients and other substances by vegetation. We have added this
language to the NWP. More stable banks may result from these
activities, but the primary objective of these projects is to improve
water quality. We recognize that the environmental benefits of these
activities usually need to be determined subjectively.
A commenter was also concerned that the NWP does not require an
applicant to prove the proposed ditch reshaping activity will not
increase the area drained by the ditch. The commenter is concerned this
NWP has a high potential for abuse and will attract landowners looking
for authorization to make their ditches larger to drain wetlands more
thoroughly and they suggest that the Corps will need to dedicate more
resources to track and monitor the use of this permit. The commenter
also indicated there must be a limit on the extent of impacts
authorized under this permit and that extensive reshaping of drainage
ditches should be subject to individual permit review.
The Corps believes that the pre-construction notification
requirement for this NWP will allow us to review larger-scale proposals
and ensure that additional wetlands are not drained by the work. We
have modified the text of this NWP, to prevent drainage of additional
wetlands. We have replaced the phrase ``original design capacity'' with
``original as-built capacity'' to reflect the extent of drainage that
occurred when the drainage ditches were originally constructed. We have
also changed the word ``designed'' to ``constructed'' in that sentence
to ensure that the reshaping activity does not drain additional waters.
We believe these changes will help prevent increases in the area
drained by these ditches, especially in those cases where the ditch did
not achieve its design capacity when it was originally constructed.
A commenter recommended modifying the requirement that the capacity
of the ditch must be the same as originally designed. The commenter is
concerned that the only way for the capacity to remain the same is if
the side slopes are increased is to narrow the bottom of the existing
ditch. The commenter expressed concern about narrowing the bottom of
the ditch and still having a stable system. The commenter suggested
requiring the bottom width and depth of the ditch to be the same as
originally designed.
[[Page 11136]]
We do not agree that this language should be changed, except to
refer to the as-built capacity or the original construction of the
ditch, for the reasons discussed above. The Corps believes that
changing the language as recommended in the previous paragraph may
unduly restrict the design criteria, because there may be some cases
where the bottom width and depth would change, but the capacity would
remain the same; therefore, we are keeping the current language. The
important point is that this NWP may not be used to increase the
capacity of the ditch.
A commenter requested that some provisions be made to allow for an
increase in capacity to accommodate increased drainage in the
watershed. Due to increased runoff, ditches may have become incised and
restoring stable slopes may require increased capacity. The commenter
suggested not restricting the permit to original design capacity, since
this does not allow for laying back the side slopes without decreasing
maximum depth to avoid increasing cross sectional area. Another
commenter indicated that there may be constricted conditions that do
not allow for shallow side slopes and wanted to know if there would be
flexibility in the use of NWP 41.
Modifying this NWP to allow increased drainage capacity would be
contrary to the intent of the NWP, which is to authorize changes in the
ditch that help improve water quality. If the site characteristics do
not support reshaping the ditch in a manner that improves water
quality, without increasing drainage capacity, then this NWP cannot be
used. Modifications of drainage ditches to accommodate changes in
watershed hydrology or site limitations may be authorized by other
types of Department of the Army permits.
One commenter asked if the NWP 41 would authorize the reshaping of
existing drainage ditches that were not constructed in waters of the
United States but now contain an ordinary high water mark or wetlands.
This NWP may be used in currently serviceable drainage ditches to
the extent that they are jurisdictional. Division or district engineers
can make a determination on the applicability of this NWP on a case-by-
case basis.
A commenter was concerned about the prohibition against stream
channelization activities. The commenter suggested that activities that
modify the cross sectional configuration of drainage ditches could
easily be interpreted as manipulation of a stream's condition that
causes more than minimal interruption of normal stream processes. The
commenter encouraged the Corps to remove the channelization restriction
from NWP 41.
The intent of this NWP is to authorize the reshaping of ditches to
provide more stable conditions, which will improve water quality. The
Corps does not believe this permit should allow channelization of
streams.
Several commenters questioned why this NWP excludes non-tidal
wetlands adjacent to tidal waters. The commenters asked why it matters
whether currently serviceable drainage ditches were originally
constructed in non-tidal wetland adjacent to tidal waters or in upland
settings.
We believe that excluding ditch reshaping activities in non-tidal
wetlands adjacent to tidal waters is necessary to ensure that the
adverse effects on the aquatic environment will be minimal,
individually and cumulatively. Wetlands adjacent to tidal waters tend
to have a high level of ecological and hydrologic connectivity with
tidal waters. Ditch reshaping activities in these areas may have more
than minimal adverse effects and can be better addressed by other
general permits or individual permits.
One commenter stated that this NWP should have a 500 linear foot
limit and a 250-foot pre-construction notification threshold and that
mitigation must be required for all adverse impacts to the aquatic
environment authorized under this permit. Another commenter said that
the activities authorized by this NWP would result in more than minimal
adverse effects.
The Corps believes that the pre-construction notification threshold
is sufficient. Since we will see all proposals that are over 500 linear
feet, we will have the opportunity to determine if the impacts are more
than minimal. The Corps does not believe this NWP will cause a
permanent loss of waters, since the work involves reshaping existing
drainage ditches to improve water quality, therefore, mitigation is not
required.
Several commenters suggested that removing some of the language
from the NWP 41 issued in 2002 made the permit less clear. One
commenter suggested that the Corps add language stating indicating that
this NWP is limited to reshaping activities that would restore more
natural stream characteristics such as increasing the area of riparian
vegetation through regrading or recreating stream meanders.
The Corps believes that including this type of language would go
beyond the intent of this NWP, which is to authorize the reshaping of
existing drainage ditches that may not have ever contained meanders or
other natural stream characteristics.
Other commenters suggested putting the language from the 2002 NWP
41 about compensatory mitigation back in the NWP.
The Corps agrees and the following language has been placed in the
final version of NWP 41: ``Compensatory mitigation is not required
because the work is designed to improve water quality.''
This NWP is reissued with the modifications discussed above.
NWP 42. Recreational Facilities. We proposed to modify this NWP by
removing the language that 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. We also proposed to modify this NWP to require pre-
construction notifications for all activities, and apply the 300 linear
foot limit for losses of stream bed to ephemeral streams. In addition,
we proposed to modify this NWP, to authorize the construction of ski
areas, playing fields, and basketball and tennis courts.
One commenter suggested that the Corps change the word ``loss'' to
``fill'' or ``impact'' (including temporary and permanent impacts).
Another commenter suggested rewording a sentence to address the Rapanos
and Carabell decisions.
The Corps believes that the term ``loss'' is the appropriate term.
The term ``loss of waters of the United States'' is defined in the
``Definitions'' section of the NWPs. Issues related to the
jurisdictional reach of the CWA are not addressed in the NWPs or this
preamble. Department of the Army Section 404 permits are required only
for activities involving discharges of dredged or fill material into
jurisdictional waters.
Three commenters stated that the activities authorized by this NWP
are not similar in nature, and will not result in minimal adverse
effects to water quality and the aquatic environment.
This NWP authorizes recreational facilities. The activities
authorized by this NWP are all recreational facilities, which is a
category of activity that is similar in nature. The pre-construction
notification requirement gives district engineers the ability to assess
the impacts to aquatic resources and, if warranted, exercise
discretionary authority to add special conditions or require individual
permits. Division and district engineers will condition such activities
where necessary to ensure that these activities will have no more than
[[Page 11137]]
minimal adverse effects on the aquatic environment, individually and
cumulatively.
Two commenters supported the removal of the limits on the types of
recreational activities that can be authorized by this NWP. A number of
commenters objected to allowing changes in preconstruction grades and
deviations in natural landscape contours. Two commenters requested we
prohibit the use of this NWP for golf courses, ski areas, playing
fields, and basketball and tennis courts because these types of
facilities are likely to alter natural landscape contours. One
commenter stated that projects such as golf courses that require
filling large valleys to create flatter areas, will change the
hydrology of the area. One commenter requested that the Corps revoke
this NWP or exclude golf courses, ski slopes, campgrounds and
associated structures from this NWP. A couple of commenters suggested
prohibiting the use of this NWP for habitat conversion, and the
construction of buildings, stables and parking lots. Another commenter
supported excluding hotels, racetracks, stadiums, and arenas from
authorization by this NWP. A few commenters stated the proposed NWP
encourages development of recreational facilities in wetlands, which
creates maintenance problems, and they requested the NWP not be
modified.
The Corps believes that recreational facilities that result in
minimal individual and cumulative adverse effects on the aquatic
environment should be authorized by this NWP, regardless of the changes
that might occur to pre-construction grades or natural landscape
contours in areas not subject to section 404 jurisdiction. This is
consistent with activities authorized by other NWPs, which do not
restrict grading and landscape contouring in uplands. Because of the
pre-construction notification requirement for this permit, the district
engineer will have the opportunity to review proposed recreational
facilities to determine if they will result in more than minimal
individual and cumulative adverse effects.
Six commenters objected to the proposal to allow district engineers
to waive the 300 linear foot limit in ephemeral and intermittent
streams. The district engineer will only waive the 300-linear foot
limit in ephemeral and intermittent streams if he or she determines
that the individual and cumulative adverse effects on the aquatic
environment are minimal. Any waivers must be issued in writing from the
district engineer.
Two commenters requested that the NWP be clarified so that acreage
limits are applied cumulatively for both the original construction and
expansion. One commenter said that this NWP should not be used with
NWPs 29 or 39, to authorize recreational facilities within residential,
commercial, or institutional developments, and that the \1/2\ acre
should apply to such projects.
The NWPs authorize single and complete projects, as defined in the
``Definitions'' section of the NWPs. The \1/2\-acre limit associated
with this NWP applies to a single and complete project. In any case, if
the district engineer determines that the impacts of a proposed project
are more than minimal, individually or cumulatively, he or she will
assert discretionary authority and require an individual permit. It is
not necessary to prohibit the use of NWP 42 with NWPs 29 or 39. Even
though NWPs 29 and 39 may be used to authorize recreational facilities
as attendant features of residential, commercial, or institutional
developments, any use of NWP 42 with NWPs 29 or 39 would be limited by
general condition 24, Use of Multiple Nationwide Permits. Under that
general condition, the \1/2\ acre limit would apply to such projects.
Two commenters supported requiring pre-construction notification
for all activities authorized by this NWP. In addition, they stated
that the Corps should require documentation in the pre-construction
notification that the facilities will result in unaltered surface and
groundwater regimes and will not alter flow into open waters or
streams. Another commenter supported retaining the \1/10\ acre
threshold for pre-construction notifications and eliminating it
completely for projects conducted under USDA programs. The commenter
believed requiring pre-construction notifications for all activities
makes more work for both the public and the Corps.
The Corps believes that pre-construction notifications are
necessary to ensure that proposed activities will result in no more
than minimal individual and cumulative adverse impacts. If the district
engineer determines that the construction or expansion of recreational
facilities will result in adverse effects on aquatic resources,
including water regimes and flow, he or she can impose special
conditions or require an individual permit.
One commenter opposed the prohibition on use of this NWP in non-
tidal wetlands adjacent to tidal wetlands, stating that it is
arbitrary.
We believe that prohibiting the use of this NWP to authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters to construct or expand recreational facilities is
necessary to ensure that the NWP authorizes only those activities that
result in minimal individual and cumulative adverse effects on the
aquatic environment. Non-tidal wetlands adjacent to tidal waters
warrant greater protection because of their interactions with those
tidal waters and the functions and services they provide to coastal
ecosystems. Construction activities resulting in discharges of dredged
or fill material into those waters are more appropriately addressed
through the individual permit process or regional general permits.
One commenter stated that recreation facilities proposing impacts
in streams accessible to anadromous salmonids should not be authorized
by this NWP. Another commenter request that the Corps place regional
conditions on this NWP such that it will not authorize the construction
of trails or paths along the top bank of a stream unless there is no
loss of riparian vegetation or the riparian vegetation can grow back.
That commenter also suggested that this NWP should not be used with NWP
13, since activities authorized by these two NWPs may adversely affect
the addition of woody material in stream channels.
Division engineers can impose regional conditions on this NWP to
address cumulative impacts, including impacts to salmon habitat. We do
not agree that NWP 13 should be prohibited from being used with this
NWP for a single and complete project. Bank stabilization may be
required to maintain the integrity and safety of a recreational
facility and to protect aquatic resources.
One commenter stated that the pre-construction notification
requirement is not enough to ensure minimal impacts and that the Corps
position that adverse impacts will be offset by compensatory mitigation
is unfounded. This commenter also opposed eliminating the requirement
to submit avoidance and minimization statements and water quality
management measures.
The pre-construction notification requirement allows the Corps to
evaluate recreational facilities on a case-by-case basis and determine
if the project, as proposed, will result in more than minimal impact.
The Corps believes that compensatory mitigation is an appropriate means
of ensuring that adverse effects on the aquatic environment are
minimal. The requirement to demonstrate avoidance
[[Page 11138]]
and minimization is part of general condition 20, Mitigation.
One commenter said that this NWP should be conditioned to require
the establishment and maintenance of buffers adjacent to all open
waters, streams, and wetlands on the site, to prevent water quality
degradation due to erosion and sedimentation, protect stream banks,
provide wildlife habitat, and to enhance watershed functions and
values.
The establishment and maintenance of riparian areas next to streams
and other open waters is addressed through the requirements of general
condition 20, Mitigation. Please see the preamble discussion for
general condition 20, where we address comments concerning requirements
and recommended widths for riparian areas.
This NWP is reissued as proposed.
NWP 43. Stormwater Management Facilities. We proposed to modify
this NWP to require pre-construction notification for the construction
or expansion of stormwater management facilities, but not for
maintenance activities. We also proposed to modify the 300 linear foot
limit for the loss of stream bed by applying that limit to ephemeral
streams. We proposed 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.
In addition, we proposed to remove the requirement for prospective
permittees to submit maintenance plans and the permit text requiring
the submission of compensatory mitigation proposals with pre-
construction notifications.
One commenter suggested we refer to the definition of ``stormwater
management facilities'' rather than furnish examples of the types of
stormwater management facilities in the description of the NWP.
The text of the proposed NWP describes the type and nature of
activities that are authorized in various stormwater management
facilities (e.g., construction, maintenance, excavation, installation),
rather than defining what constitutes a stormwater management facility.
Therefore, we do not agree that the language within the text of the NWP
is redundant or superfluous.
Several commenters requested we add restrictions to this NWP to
exclude its use in special aquatic sites and/or prohibit construction
of in-stream retention or detention basins and construction of hardened
channels (e.g., concrete or riprap).
We do not agree it is necessary to prohibit the construction of in-
stream retention or detention basins and/or hardened channels since
division engineers can impose regional conditions to this NWP to
exclude certain types of activities in specific streams, watersheds, or
other designated aquatic resources to ensure impacts to the aquatic
environment are minimal, individually and cumulatively. In addition,
since construction and expansion activities require pre-construction
notification, the district engineer can either require case-specific
special conditions or exercise discretionary authority to require an
individual permit if the proposed activity, such as construction of in-
stream basins and/or hardened channels, would result in more than
minimal adverse impact on the aquatic environment. All new construction
and expansion of existing facilities requires a pre-construction
notification.
Several commenters objected to the application of a 300 linear foot
threshold for intermittent and ephemeral streams, while other
commenters indicated the activities authorized under this NWP should
apply exclusively to ephemeral streams and prohibit work in
intermittent and perennial streams. One commenter stated that no
stormwater management facilities should be constructed in waters of the
United States.
We agree that intermittent and ephemeral streams often provide
important functions, services, and values, although there are
situations where activities in these streams will result only in
minimal adverse effects on the aquatic environment. In many cases, the
only practicable alternatives involve constructing stormwater
management facilities in waters of the United States. The pre-
construction notification process allows district engineers to review
proposed construction and expansion activities on a case-by-case basis
to ensure that those activities result in minimal individual and
cumulative adverse effects on the aquatic environment.
In order for the 300 linear foot threshold for intermittent and
ephemeral streams to be waived, the district engineer must make a
written determination that the proposed work will result in no more
than minimal adverse effects on the aquatic environment. If the
district engineer does not provide written confirmation of the waiver,
then the 300 linear foot limit remains in place and the prospective
permittee must obtain another type of authorization for the proposed
activity. As an added level of protection, division engineers can
impose regional conditions to further restrict or prohibit the use of
NWP 43 in high value perennial, intermittent and ephemeral streams.
Please note that this NWP prohibits discharges of dredged or fill
material to construct new stormwater management facilities in perennial
streams.
Some commenters asserted that activities authorized under this NWP
would result in adverse environmental impacts on spawning habitat or
cause more than minimal adverse impacts to the aquatic environment if
the 300 linear foot limit is waived, and, as a result should be
evaluated under the Corps individual permit process.
In general, we believe the activities authorized under NWP 43 would
result in minimal adverse impacts to the aquatic environment, including
spawning habitat. Requiring individual permits for all activities that
would otherwise qualify for authorization under NWP 43 based solely on
the fact that they involve the loss of greater than 300 linear feet of
ephemeral or intermittent stream bed would place an unnecessary burden
on the Corps and the permittee, with negligible added environmental
benefits. District engineers will use their knowledge of the local
aquatic environments and case-specific circumstances to determine when
proposed activities would result in more than minimal adverse effects
on the aquatic environment and consequently require an individual
permit. In addition, general conditions 2 and 3 provide for the
protection of aquatic life movement and spawning habitat, respectively,
which collectively we believe will help to ensure overall minimal
impacts.
One of the commenters requested we establish criteria for the
district engineer's determination to waive the 300 linear foot limit.
One other commenter expressed concerns that in the absence of such
guidelines there would be inconsistencies within the Corps as to how or
to what degree the waiver is applied.
We believe deference must be given to the district engineers'
expertise and knowledge of the local aquatic environment, as well as
their assessment of information submitted in pre-construction
notifications, to make case-specific determinations on the effects to
the aquatic environment. Based on the inherent variability across the
nation, we disagree that it is necessary or appropriate to establish
nationally applicable criteria for the application of the waiver.
Aquatic resource functions, services, and values differ across the
United States and,
[[Page 11139]]
accordingly, there will be corresponding differences in the criteria
considered for implementation of the waiver consistent with regional
and/or local variations. District engineers will make their case-
specific determinations on the appropriateness of the waiver based on
the characteristics of the local aquatic environment and in
consideration of the specific circumstances of the proposed activity.
Some commenters suggested we combine this NWP with NWP 3,
Maintenance, since both include maintenance activities.
We believe the specific requirements of NWP 43 are necessary to
allow for specific types of maintenance activities that may not be
authorized by NWP 3. For example, NWP 43 authorizes activities
necessary to return the storm water management facility to its original
design capacities, which may include basins that are not considered
structures or fills. In contrast, NWP 3 is limited to the repair,
rehabilitation, or replacement of structures or fills, or the removal
of accumulated sediments in the vicinity of existing structures.
A few commenters requested we provide clarifications to NWP 43,
including whether maintenance and mitigation plans for these facilities
would be required. Several commenters requested we retain the
requirement for submittal of maintenance plans for stormwater
management facilities. Other commenters indicated the pre-construction
notifications should include maintenance plans, avoidance and
minimization measures, and water quality management measures.
The removal of the requirement for prospective permittees to submit
maintenance plans and compensatory mitigation plans with pre-
construction notifications simplifies this NWP and eliminates
redundancy with general condition 20, Mitigation. Maintenance plans are
not necessary if maintenance does not increase the design capacity of
the facility. For new construction or expansion of existing facilities,
compensatory mitigation requirements are addressed in general condition
20, Mitigation. Division engineers also have the ability to impose
regional conditions to ensure specific activities authorized under this
NWP result in minimal adverse impacts on the aquatic environment.
One commenter indicated maintenance of an existing stormwater
management facility should not require Department of the Army
authorization.
We disagree with this comment. Unless an exempted activity, all
work and/or actions that result in the discharge of dredged or fill
material into waters of the United States require Department of the
Army authorization.
One commenter opposed the elimination of the \1/10\ acre pre-
construction notification threshold.
We believe that pre-construction notification should be required
for all new construction and expansion of existing facilities in order
for the Corps to ensure that the individual and cumulative adverse
environmental impacts associated with the project are minimal.
One commenter indicated this NWP should not apply to specific
watersheds, while another commenter insisted we not re-issue this NWP.
We believe the stormwater management facilities authorized under
NWP 43 often constitute vital development or improvement projects that
serve important public functions, including protection of aquatic
resources. While such activities may need to be located in waters of
the United States, we believe the underlying provisions of the NWP
program that require all authorized activities to have minimal impacts
on the aquatic environment, coupled with the ability of division
engineers to impose regional conditions on specific activities, will
provide effective regulatory mechanisms for protecting the aquatic
environment without adding further restrictions on the use of NWP 43.
One commenter indicated the prohibition on use in non-tidal
wetlands adjacent to tidal waters is an unfair limitation to
prospective permittees in coastal plains.
In consideration of the relatively high functions, services, and
values these wetlands contribute to the overall health of the aquatic
environment on a national basis, we do not agree that the prohibition
on the use of NWP 43 in non-tidal wetlands adjacent to tidal waters is
unfair to those perspective permittees located in coastal plains. More
importantly, this prohibition is necessary to ensure that this NWP
authorize only activities with minimal adverse effects, individually
and cumulatively.
We have slightly revised the wording of this NWP to clarify that
activities which increase existing capacity may be authorized as
``expansion'' of existing facilities if pre-construction notification
is submitted.
This NWP is reissued as modified above.
NWP 44. Mining Activities. We proposed 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 NWP 49 (Coal
Remining Activities) or NWP 50 (Underground Coal Mining Activities).
This NWP continues to authorize aggregate mining and hard rock/mineral
mining activities. We proposed to retain the \1/2\ acre limit for this
NWP.
A number of commenters supported reissuance of NWP 44, but opposed
the \1/2\ acre limit, stating that it is arbitrary and duplicative of
other existing regulatory requirements, or is too stringent for the
permit to be useable. Several commenters expressed support for the \1/
2\-acre limit and recommended adding a linear foot limit for stream
impacts. One commenter recommended a \1/4\ acre limit for this NWP, to
protect anadromous fish. One commenter recommended a 2,000 linear foot
limit for impacts to streams.
We believe that the terms and conditions of this NWP, including the
\1/2\-acre limit, will ensure that activities authorized by this NWP
result in no more than minimal adverse effects to the aquatic
environment, individually and cumulatively. Aggregate and hard rock/
mineral mining activities that do not qualify for authorization under
this NWP can be authorized by individual permits. We believe the \1/2\
acre limit is appropriate. We have modified the text of this NWP to
clarify that the \1/2\ acre limit applies to all non-tidal waters of
the United States. This NWP only authorizes discharges of dredged or
fill material into certain non-tidal waters of the United States. It
does not authorize discharges into tidal waters, or non-tidal wetlands
adjacent to tidal waters. As a pre-construction notification must be
submitted for all activities, a specific linear foot threshold for
streams is not necessary, as the district engineer can exercise
discretionary authority or include special conditions to ensure that
impacts to streams are no more than minimal. District or division
engineers can condition this NWP on a case-by-case or regional basis to
protect anadromous fish.
One commenter stated that ephemeral streams, isolated waters, and
artificially created wetlands should not be considered in the acreage
limitations.
The acreage limit for this NWP applies to waters of the United
States. Impacts to non-jurisdictional waters are not considered as
losses of waters of the United States, and are not counted towards the
acreage limit for this NWP.
A couple of commenters stated that the reclamation plan should not
be required as part of the pre-construction notification. Pre-
construction notifications are frequently submitted to the Corps before
reclamation plans are
[[Page 11140]]
required and the Corps has no authority over mining reclamation.
The Corps needs to review the reclamation plan to ensure that the
authorized activities, including any required reclamation, do not
result in more than minimal adverse environmental impact. In addition,
reclamation activities may affect the need to require compensatory
mitigation.
Several commenters opposed the removal of the prohibition on using
NWP 44 in 100-year floodplains, while one commenter stated that certain
mining activities will increase the flood storage capacity of
floodplains and streams and thereby reduce flooding, which would
benefit local communities.
In accordance with general condition 10, permittees must comply
with applicable state or local floodplain management requirements that
have been approved by the Federal Emergency Management Agency. In
addition, the Corps will address impacts to 100-year floodplains
through the case-by-case review that occurs through the pre-
construction notification process.
Several commenters supported the simplification of NWP 44 by
eliminating redundant terms and conditions. One commenter questioned
whether the permittee could mine the same area over and over for
aggregates as new deposits accumulate each year. This commenter also
asked whether there is a limit on the number of times or locations that
the permit can be used by one mining company, what kind of separation
is necessary between mining sites, and whether this NWP can be used by
one mining company on multiple streams.
This NWP can be used for any single and complete mining activity
that has independent utility. The definitions of ``single and complete
project'' and ``independent utility'' are provided in the
``Definitions'' section. Therefore, it is possible for an applicant to
use this NWP each year or on multiple sites, provided each activity is
a single and complete project that complies with the terms and
conditions of the NWP, including the requirement that the individual
and cumulative adverse environmental impacts are minimal. In response
to pre-construction notifications, district engineers will determine
whether proposed mining activities constitute separate single and
complete projects that qualify for NWP authorization.
A number of commenters were opposed to the reissuance of NWP 44
because they believe the environmental impacts associated with the
permit are more than minimal, and could result in significant adverse
effects to rivers and streams, including those with important fish and
mussel species. One commenter stated that this NWP does not satisfy the
``similar in nature'' requirement for general permits. One commenter
recommended that the Corps establish an activity-specific NWP for the
aggregates industry. One commenter recommended excluding peat mining
and in-stream gravel mining, due to the environmental damage produced
by these types of mining.
This NWP authorizes mining activities that have no more than
minimal individual and cumulative adverse effects on the aquatic
environment. The terms and conditions of this NWP, including the NWP
general conditions, will ensure that these mining activities will have
no more than minimal adverse environmental effects. All activities
authorized by this NWP require pre-construction notification to the
district engineer prior to commencement of mining activities. The pre-
construction notification process allows district engineers to review
mining activities on a case-by-case basis, to ensure that the proposed
work has no more than minimal adverse effects on the aquatic
environment. The district engineer can add special conditions to the
NWP authorization to ensure that any adverse effects on the aquatic
environment are no more than minimal, or exercise discretionary
authority to require an individual permit for the work. This NWP
complies with the ``similar in nature'' requirement of general permits
because it authorizes a specific category of activities (i.e., mining
activities, except for coal mining activities).
One commenter recommended that the NWP be revoked in Montana
because these activities would have more than minimal adverse
environmental effects. One commenter also stated that the permit is not
adequately coordinated with state and federal resource agencies and
eliminates the public interest review.
Division engineers may add regional conditions to this NWP to
enhance protection of the aquatic environment and address local
concerns. Division engineers can also revoke this NWP in a specific
geographic area if the use of that NWP would result in more than
minimal adverse effects on the aquatic environment, especially in high
value or unique wetlands and other waters.
This NWP is reissued with the modification discussed above.
NWP 45. Repair of Uplands Damaged by Discrete Events. This was
proposed as NWP A. We proposed to remove paragraph (iii) and portions
of paragraph (i) from NWP 3 to this new NWP, to authorize emergency
repair activities. This was intended to simplify NWP 3 and limit that
NWP to routine maintenance activities.
Numerous commenters supported the issuance of this new NWP.
The majority of the comments received in response to the proposed
NWP involved general concerns regarding the way in which this permit
could affect time critical responses for emergency situations. Many
commenters stated that authorization of the repair, rehabilitation, or
replacement of structures or fills destroyed or damaged by storms or
other discrete events should remain in NWP 3, since NWP 3 did not
require pre-construction notification for those activities. Therefore,
NWP 3 would allow expeditious maintenance activities, especially for
infrastructure and other important features.
We agree, and have returned the language to NWP 3 that authorizes
the repair, rehabilitation, or replacement of structures or fills
destroyed or damaged by storms or other discrete events. We wish to
clarify that this NWP is not intended to serve as an emergency permit.
An ``emergency'' is a situation which would result in an unacceptable
hazard to life, a significant loss of property, or an immediate,
unforeseen, and significant economic hardship if corrective action is
not undertaken within a time period that does not allow the Corps to
process the application under standard procedures. As many commenters
pointed out, pursuant to 33 CFR 325.2(e)(4), the Corps has already
developed special permitting and permit application processing
procedures for emergency situations, which are applicable to all types
of DA permits. Further, as several commenters indicated, in accordance
with 33 CFR 323.4(a)(2), certain emergency response activities are
exempted from the permitting requirements of Section 404 of the Clean
Water Act. As a result of the changes discussed above, this NWP
authorizes only the restoration of upland areas damaged by storms,
floods, or other discrete events. Those repairs may or may not require
emergency processing, though in most cases we believe they will not. We
believe that the confusion regarding the purpose of this NWP was caused
by the inclusion of the word ``Emergency'' in its name. In order to
remove that confusion, we are renaming this NWP ``Repair of Uplands
Damaged by Discrete Events.''
Several commenters expressed concerns over the lack of clear limits
for this NWP, and recommended
[[Page 11141]]
establishing acreage or linear-foot limits in order to prevent more
than minimal impacts to the aquatic environment. On the other hand,
several commenters suggested establishing thresholds that would require
pre-construction notification only for large-scale activities. One
commenter asked how ``pre-event'' bottom contours of waterbodies would
be determined, particularly on those sites with limited or no data,
aerial photos, or other information.
This NWP only authorizes the restoration of damaged uplands to the
extent that existed before the damage occurred, along with any bank
stabilization necessary to protect the restored uplands. This NWP may
also authorize minor dredging where necessary to restore material that
has washed from the uplands into a neighboring waterbody. Since this
NWP only authorizes activities to restore damaged areas to previously
existing conditions, we do not believe that it will result in adverse
effects that did not previously exist. We believe that the pre-
construction notification requirements established for this NWP are
necessary to ensure that the proposed activities will result in no more
than minimal adverse effects. We recognize that the pre-construction
notification requirement imposes an additional burden on project
proponents, but we do not believe that it is inequitable or, in most
circumstances, substantial. The district engineer has discretionary
authority to require an individual permit for any proposed activity
that will have more than minimal individual or cumulative adverse
effects on the environment, and the pre-construction notification
requirement is necessary for the effective use of this authority. When
reviewing pre-construction notifications, district engineers will use
available information, including documentation provided by permit
applicants in accordance with the ``Notification'' provision of this
NWP, to determine the pre-existing conditions. If maps or photographs
are not available, the district engineer's judgment will be used.
One commenter stated that this NWP could interfere with tribal
rights, including treaty fishing access, and that it could severely
impact anadromous salmonid habitat.
District engineers can impose special conditions or assert
discretionary authority and require an individual permit for projects
that have more than minimal adverse effect on the aquatic environment
or other public interest factors. Furthermore, activities authorized
under this NWP must comply with the NWP general conditions, including
general condition 16, Tribal Rights, and general condition 2, Aquatic
Life Movements.
One commenter requested clarification regarding the effects of
changes in the ordinary high water mark after discrete storm or flood
events on the scope of activities authorized under this NWP.
Discrete storm or flood events may result in erosion, which can
change the ordinary high water mark (OHWM) in non-tidal waters or high
tide line (HTL) in tidal waters. For the purposes of this NWP,
determinations regarding the location of the OHWM or HTL will be made
by the district engineer upon receipt of the pre-construction
notification.
One commenter stated that this NWP is unnecessary since repair
activities that do not exceed the original scope of the project should
be covered by the original authorization. One commenter stated that the
Corps should not allow rebuilding of structures located in floodplains
which are likely to be damaged again by subsequent storm events.
This NWP authorizes the restoration of uplands damaged by a
discrete event, in cases where there is no available authorization to
restore those areas. There would be no original authorization for
natural uplands that were damaged by a discrete event. Man-made uplands
may have been constructed without the need to obtain a Department of
the Army permit.
Activities authorized by NWP must comply with general condition 10,
Fills within 100-year Floodplains, which requires all NWP activities to
comply with any applicable FEMA-approved state or local floodplain
management requirements. We do not agree that there should be a
prohibition against rebuilding structures in floodplains. Such
decisions should be made by the appropriate state or local authorities,
in accordance with FEMA-approved floodplain management requirements.
A number of commenters stated that the terms of the NWP were
contradictory with regards to the start date of the authorized
activity. These commenters requested clarification as to whether the
work must commence within two years from the date of the damages or
from the date the pre-construction notification is filed.
We have modified the text of this NWP to clarify that activities
authorized by this permit must commence, or be under contract to
commence, within two years of the date of damage. This change will make
the second paragraph of this NWP consistent with the pre-construction
notification requirements for this NWP. This requirement may be waived
by the district engineer if the permittee can show that delays were
unavoidable.
One commenter indicated that this NWP should also authorize
temporary impacts that are necessary to repair or provide maintenance
to damaged structures.
This NWP does not authorize temporary fills, structures, or work
required to conduct the upland restoration activities. Those temporary
activities may be authorized by NWP 33.
Proposed NWP A is issued as NWP 45, with the modifications
discussed above.
NWP 46. Discharges in Ditches. This NWP was proposed as NWP B to
authorize discharges of dredged or fill material into certain types of
ditches and canals. This NWP allows a landowner to return his or her
land to its prior condition, but only in those cases where the ditches
or canals meet all four criteria specified in the NWP. To qualify for
this NWP, those ditches and canals must: (1) Be constructed in uplands,
(2) receive water from another water of the United States, (3) divert
water to another water of the United States, and (4) be determined to
be waters of the United States. These four 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.
Several commenters supported the new NWP. Several commenters stated
that the limits for this NWP are too high to prevent more than minimal
impacts on the aquatic ecosystem, particularly to flood storage and
water quality. Several commenters recommended establishing a 300 linear
foot threshold for pre-construction notification and a \1/2\ acre limit
on permitted impacts, in order to be consistent with other NWPs.
Another commenter stated that filling ditches should not be allowed
without an assessment of how the hydrology was altered when the ditch
was created and how the hydrology and water quality would be affected
if it is filled. Another commenter recommended requiring pre-
construction notification for all activities under this NWP, because
authorized activities could result in isolating wetlands that are
adjacent to the ditches and severing the migratory pathways of aquatic
organisms. On the other hand, one commenter stated that since the
ditches regulated by this
[[Page 11142]]
permit have been determined to provide few aquatic resource functions,
the thresholds for pre-construction notification and limits for
permitted impacts should be increased. Similarly, one commenter
suggested that this NWP should not have any limits, because the
regulated ditches are not natural.
This NWP authorizes discharges of dredged or fill material into
certain types of ditches. Those ditches must meet all of the criteria
listed in the first paragraph of the NWP. To ensure that this NWP is
used only to authorize discharges into those types of ditches, and to
ensure that those activities result in minimal adverse effects on the
aquatic environment, we are requiring pre-construction notification for
all activities. To address concerns regarding the jurisdictional status
of the waters of the United States other than the ditch to be filled,
we have changed the text of this NWP to state that those other waters
had to have been waters of the United States prior to the construction
of the ditch. Therefore, the jurisdictional status of those waters
should remain unchanged after the ditch is filled.
We are retaining the proposed one acre limit for this NWP. We
believe that the applicable provisions and terms and conditions,
including the general conditions, the pre-construction notification
requirements, and the ability of division and district engineers to
assert discretionary authority and impose regional and case-specific
conditions on this NWP, will ensure that the activities authorized will
result in no more than minimal individual and cumulative adverse
effects on the aquatic environment.
One commenter stated that a determination of absence or presence of
salmonids should be required in channels potentially accessible by
anadromous salmonids. Another commenter said that this NWP should not
authorize discharges of dredged or fill material into streams.
Potential impacts to salmon species will be considered by district
engineers during the review of pre-construction notifications. General
condition 2, Aquatic Life Movements, prohibits activities which could
disrupt the necessary life cycle movements of aquatic species. If
deemed appropriated, this NWP can be regionally conditioned by division
engineers to limit or restrict the use of this NWP in waters accessible
to anadromous salmonid species. The text of this NWP clearly states
that it does not authorize discharges into streams, or streams that
have been relocated into uplands.
Several commenters stated that the proposed NWP is contrary to
Section 404(e) of the Clean Water Act because it is not a general
permit for a category of activities that are similar in nature but
rather a permit for a category of waters, and that the Corps has no
authority to issue a permit for a category of waters. One commenter
suggested that the Corps clarify that the NWP is not limited to
situations where the landowner seeks to return his or her land to its
prior condition. One commenter requested clarification on whether
impacts to roadside ditches for road improvements can be permitted
under this NWP, or if NWP 14 would be applicable. Similarly, another
commenter suggested that fill for access roads should be included in
this NWP.
We expect that this NWP will be mostly used by landowners to return
ditches or portions of ditches to their prior upland condition.
However, this NWP may also authorize ditch relocation and reshaping
activities. To help ensure that this NWP only authorizes activities
with minimal individual and cumulative adverse effects on the aquatic
environment, we have added language stating that this NWP does not
authorize discharges of dredged or fill material that will increase the
drainage capacity of the ditch and will drain other waters of the
United States. In the event that the ditch is returned to its prior
upland condition, the Corps would no longer have regulatory
jurisdiction over that ditch. This NWP may authorize discharges of
dredged or fill material into roadside ditches, provided those ditches
meet all four criteria specified in the first paragraph of this NWP.
Access roads may be authorized by other NWPs, regional general permits,
or individual permits.
One commenter requested clarification as to whether all four or
only one of the four eligibility criteria are needed for a project to
be authorized under this NWP. The same commenter requested
clarification on the eligibility criterion ``receive water from another
waters of the United States.'' One commenter asked whether this NWP
could be used to authorize discharges of dredged or fill material into
both tidal and non-tidal waters of the United States. One commenter
said that this NWP should not authorize discharges into canals, because
canals can be large aquatic systems and the adverse environmental
effects could be more than minimal.
This NWP applies only to those ditches that meet all four criteria
specified in the first paragraph of the NWP. The second criterion for
eligible ditches refers to situations where the ditch constructed in
uplands receives surface water flow from another water of the United
States that existed prior to the construction of that upland ditch.
To ensure that this NWP authorizes only those activities with
minimal individual and cumulative adverse effects on the aquatic
environment, we have limited this NWP to discharges of dredged or fill
material into non-tidal ditches. In addition, it does not authorize
discharges of dredged or fill material into navigable waters of the
United States (i.e., section 10 waters). We have removed the word
``canal'' from this NWP, to provide further clarity since canals may be
navigable waters of the United States. Discharges into a non-tidal
ditch that flows into a tidal water could be covered under NWP 46, but
not discharges into a ``tidal'' ditch, i.e., one into which tidal
waters flow.
A number of commenters questioned or requested clarification of
Corps jurisdiction over ditches following the Supreme Court decisions
in Rapanos and Carabell. One commenter requested clarification on
whether the term ``water of the United States'' includes wetlands or
only waterbodies, and whether a ditch connecting two wetlands would
qualify for authorization under this NWP. One commenter suggested
providing guidelines for or examples of the information required to
determine that a ditch was constructed in uplands.
This NWP can be used to authorize discharges of dredged or fill
material into ditches that meet the four criteria in the first
paragraph, as well as the other terms and conditions of this NWP. The
waters of the United States other than the ditch constructed in uplands
may consist of wetlands, open waters, or both. This preamble does not
address the limits of jurisdiction after Rapanos and Carabell.
Data used to determine whether a ditch was constructed in uplands
may be obtained from a variety of sources, such as aerial photographs,
soil surveys, property maps, plans, plots or plats, previous
jurisdictional determinations and data sheets, topographical maps,
wetland inventory maps, and photographs.
One commenter stated that mitigation should be required for impacts
to wetlands and aquatic life that may be established in those ditches.
In contrast, another commenter stated that requiring mitigation for
reversion to a prior upland condition is excessive and unreasonable.
We do not believe that it would be appropriate or practical to
establish a national standard requiring mitigation
[[Page 11143]]
for all activities authorized by this NWP. The need for compensatory
mitigation to ensure minimal individual and cumulative adverse effects
will be made by district engineers on a case-by-case basis, in response
to pre-construction notifications. We believe that the provisions of
general conditions 27 and 20 will allow the district engineer to
determine if any compensatory mitigation is needed to reduce the
effects of the activities authorized under this permit to the minimal
level.
One commenter suggested that the one-acre limit should not apply if
the impacted ditch is replaced with another ditch that would perform
the same functions.
Although this NWP may be used to authorize discharges of dredged or
fill material into ditches for the purpose of relocating those ditches,
the one acre limit applies to the loss of waters of the United States
that results from the discharge of dredged or fill material into the
existing ditch.
One commenter requested clarification on how the ``constructed in
uplands'' criterion reconciles with Corps policy at 51 FR 41217, under
which ditches excavated on dry land are generally not waters of the
United States.
The proposed NWP is consistent with the policy established in the
November 13, 1986 Federal Register Notice (51 FR 41217), because that
policy also states that the Corps reserves the right on a case-by-case
basis to determine whether non-tidal ditches excavated on dry land or
other features constitute waters of the United States.
One commenter requested clarification on how this NWP reconciles
with the Section 404 exemption for construction and maintenance of
irrigation ditches at 33 CFR 323.4(a)(3).
The Section 404 exemption at 33 CFR 323.4(a)(3) applies to
construction and maintenance of irrigation ditches or the maintenance
of drainage ditches. This NWP authorizes activities not covered in the
exemption, such as discharges of dredged or fill material to restore
the area to its previous upland condition.
One commenter stated that this NWP should not be issued because it
is contrary to the Congressional intention that ditches should be
regulated as point sources and not as navigable waters.
This preamble does not address the limits of Clean Water Act
jurisdiction. To the extent that ditches are determined to be waters of
the United States, this permit provides authorization for discharges of
dredged or fill material into them provided all conditions for its use
are met.
One commenter recommended providing definitions for ``ditch'' and
``canal''.
We believe that district engineers should maintain the discretion
to determine on a case-by-case basis whether particular features are
ditches or canals and also are waters of the United States.
Proposed NWP B is issued as NWP 46 with the modifications discussed
above.
NWP 47. Pipeline Safety Program Designated Time Sensitive
Inspections and Repairs. In the September 26, 2006, Federal Register
notice, we proposed this NWP (as proposed NWP C) 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.
Thirteen comment letters were received concerning this proposed NWP
with six expressing strong support for its issuance but also inquiring
about the applicability of general conditions 17 (Endangered Species)
and 18 (Historic Properties) to the use of the permit. Six commenters
recommended that the Corps enter into programmatic ESA consultation
with PHP and the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service.
This NWP only authorizes activities that are included in the U.S.
Department of Transportation's Pipeline Repair and Environmental
Guidance System (PREGS). The PHP is the lead Federal agency for these
activities and, as such, conducts any Section 7 consultation required
under the Endangered Species Act and consultation required under
Section 106 of the National Historic Preservation Act. In cases where
PHP has not conducted consultation required by either Section 7 of the
Endangered Species Act, or Section 106 of the National Historic
Preservation Act, permittees are required by 33 CFR 330.4(f) and (g) to
notify the Corps if there are threatened or endangered species or
critical habitat, or historic properties that might be affected or are
in the vicinity of the project.
One commenter declared that ``inspections'' should be removed from
the list of authorized activities since technology exists which allows
pipeline operators to evaluate a pipeline without the need to visually
inspect it. One commenter said that this NWP should not authorize the
repair of pipelines that have deteriorated as a result of neglect. Two
commenters stated that acreage limits should be placed on the NWP. One
commenter remarked that access roads should be authorized by the NWP
because problems will occur when an activity requires use of multiple
NWPs and one of the other NWPs has an acreage limit.
We disagree with the first two comments of the preceding paragraph.
Pipeline inspections are critical activities related to the repair of
these pipelines. In certain instances it is necessary that the pipeline
be visually inspected, and this permit allows excavation to expose the
pipeline. Impacts authorized under this NWP will be temporary in nature
so the aquatic resources will recover over time. This NWP provides
Department of the Army authorization for the repair, rehabilitation, or
replacement of currently serviceable pipelines. These pipelines are
unlikely to become unserviceable as a result of neglect, since
operators are required to periodically inspect these pipelines and make
necessary repairs or replacements. We do not believe acreage limits are
necessary, given the nature of the category of activities authorized by
this NWP. Access roads will not generally need to be constructed to
conduct the pipeline inspection and repair, since access roads would
likely have been built at the time the pipeline was constructed, or the
terrain will not impede access to the pipeline. If temporary access
roads are necessary to conduct the pipeline inspection and repair
activity, they are authorized by this NWP as long as they are removed
upon completion of the work. This NWP requires that all temporary
structures and fill be removed and the area restored to preconstruction
elevations. We have modified paragraph (c) of this NWP so that it is
consistent with general condition 13, Removal of Temporary Fills.
One commenter inquired as to why temporary activities are included
in the proposed NWP when this work is being removed from other NWPs
that authorize maintenance. Two commenters requested we add a pre-
construction notification requirement for environmentally sensitive
areas. One commenter said the pre-construction notification should be
required for all activities. Two commenters were against and one
commenter supported prohibiting division engineers from placing
regional conditions on the NWP.
Since the objective of this NWP is to authorize inspections and
repairs for eligible pipelines in a timely manner, the NWP authorizes
temporary activities necessary to conduct the inspection,
[[Page 11144]]
repair, rehabilitation, or replacement activity. We do not agree that
it is necessary to require pre-construction notification for these
activities, since PHP is the lead Federal agency for these activities.
Submitting a pre-construction notification when a pipeline is in
critical need for repair will delay the repair and increase the risk
that the pipeline will leak and cause more damage to the aquatic
environment, particularly environmentally sensitive areas. Given the
nature of the activities authorized by this NWP, as well as its
objective of authorizing these activities in a timely manner, we
believe it is unnecessary for division engineers to regionally
condition this NWP. However, division engineers can impose regional
conditions on this NWP that are limited to measures necessary to
minimize adverse effects to the aquatic environment, as long as those
regional conditions do not require pre-construction notification or
cause delays to inspection and repair activities. We have added a
``Note'' to this NWP to explain what types of regional conditions may
be added by division engineers.
Two commenters suggested that in order for water quality
certifications to be issued, a list of ``time-sensitive'' activities as
well as appropriate best management practices must be provided by PHP
and an opportunity for public comment should be given for the best
management practices. One commenter stated PHP has not made all the
best management practices available to the pipeline operators yet.
We do not agree that it is either necessary or feasible to provide
a list of time-sensitive activities or best management practices for
states, Indian tribes, and EPA to make their water quality
certification decisions for this NWP. In response to concerns raised by
states or tribes through the water quality certification process,
districts may add regional conditions as long as they do not preclude
its use for time sensitive repairs. Identification of time-sensitive
activities will be made in the future, as the program is implemented.
Best management practices may vary by region, and we do not believe it
is necessary for PHP to solicit public comment on those best management
practices prior to implementing this NWP.
Proposed NWP C is issued as NWP 47 with the modifications discussed
above.
NWP 48. Existing Commercial Shellfish Aquaculture Activities. We
proposed to issue this new NWP to authorize ongoing shellfish
aquaculture activities throughout the United States.
The majority of commenters expressed their support for this new
NWP, stating that existing commercial shellfish operations do not have
more than minimal adverse impacts on the aquatic environment and
contribute benefits to the ecosystem that balance any adverse impact.
Referencing numerous scientific studies as evidence of the beneficial
aspects of shellfish culture, many of these commenters expressed their
desire for the 25-acre threshold for pre-construction notification to
be raised considerably, or eliminated entirely, stating it was
arbitrary and created an unnecessary bureaucratic paperwork burden for
the operators and the Corps. In addition, many commenters recommended
that the NWP not be limited only to existing operations but also be
available for the expansion of existing operations and for new
operations. One commenter supported limiting this NWP to existing
operations. A few commenters objected to the issuance of this NWP,
stating that commercial shellfish aquaculture operations of unlimited
size threaten submerged aquatic vegetation, shorebirds, and other
estuarine resources, and potentially exceed the minimal impact
threshold, both individually and cumulatively. Several commenters
believed that potential for adverse impacts was related more to
specific activities than to the geographic extent of an operation, and
that whether an operation engaged in these activities was thus a better
basis for limits or pre-construction notification thresholds. One
commenter recommended requiring pre-construction notification for the
use of canopy predator nets that cover broad areas of an aquaculture
operation because of potential impacts to a variety of aquatic species.
One commenter recommended requiring pre-construction notification for
all activities authorized by this NWP, while another commenter
suggested a simple reporting requirement in lieu of a pre-construction
notification.
Since shellfish improve water quality and increase food production,
we believe that there is generally a net increase in aquatic resource
functions in estuaries or bays where shellfish are produced. We do not
believe it is necessary to require pre-construction notification for
all activities authorized by this NWP, including those that involve
canopy predator nets. Concerns regarding the use of canopy predator
nets are more appropriately address through regional conditions imposed
by division engineers, or by special conditions added to NWP
authorizations by district engineers. After review of the comments and
of scientific literature, we have modified the pre-construction
notification requirements. Pre-construction notification will be
required if the project area is greater than 100 acres or if the
operation conducts any of the following activities: any reconfiguration
of the aquaculture activity, such as relocating existing operations
into portions of the project area not previously used for aquaculture
activities; a change in species being cultivated; a change in culture
methods (e.g., from bottom culture to off-bottom culture); or dredge
harvesting, tilling, or harrowing in areas inhabited by submerged
aquatic vegetation. We do not believe it is necessary to require pre-
construction notification for on-going operations, unless the project
area is greater than 100 acres or the operation involves dredge
harvesting, tilling, or harrowing in areas inhabited by submerged
aquatic vegetation, since on-going operations not meeting these
criteria are unlikely to result in significant adverse environmental
effects. However, in order to generate better information for future
permitting decisions, for those activities that do not require pre-
construction notification, we are requiring operators to submit a brief
report that will provide the district engineer with basic information
on the activity. The report must include the size of the project area,
the location of the aquaculture operations, a brief description of the
culture methods used, a brief description of the harvesting method(s)
used, the name(s) of the cultivated species, and a statement addressing
whether canopy predator nets will be used. For each existing operation
not submitting a pre-construction notification, the report needs to be
submitted within 90 days of the effective date of this NWP. Following
submission of this one-time report, no further reporting is necessary.
However, if there are any changes to the operation that require
Department of the Army (DA) authorization, then pre-construction
notification is required if the proposed changes meet any of the pre-
construction notification triggers. Depending on the region and culture
method used, there may be additional restrictions (e.g., limits on
timing of certain activities) that are necessary to further minimize
impacts to aquatic resources. These regional concerns are best
addressed by district engineers in coordination with State and local
agencies and handled through regional conditioning.
Many commenters were confused about the definitions of ``existing
[[Page 11145]]
operation'' and ``project area'' and requested clarification of these
terms.
For the purposes of this NWP, an existing operation is one that has
been granted a permit, license, or lease from a state or local agency
specifically authorizing commercial aquaculture activities and which
has undertaken such activities prior to the date of issuance of this
NWP. For the purposes of this NWP, the project area is defined as the
area of waters of the United States occupied by the existing operation.
In most cases, the project area will consist of the area covered by the
state or local aquaculture permit, license, or lease. The project area
may consist of several sites that are not contiguous. 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 normal operations. Relocation of existing operations into
portions of the project area not previously used for aquaculture
activities may be authorized by this NWP but will require a pre-
construction notification. Cultivation in areas that were previously
used but allowed to lie fallow does not require a pre-construction
notification. Operators should maintain appropriate documentation
showing which areas were previously cultivated.
This NWP is limited to work associated with the continued operation
of existing commercial shellfish operations, many of which have been in
place for hundreds of years. 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 we believe
new projects and the expansion of existing operations are also unlikely
to have a high potential for adverse affects on the aquatic
environment, without an established data set from which to work, we are
not prepared to include them in this NWP at this time. Although new
projects and the expansion of existing operations are not authorized
initially by this NWP, once authorized by another form of DA 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. Division
engineers will conduct regional reviews of commercial shellfish
aquaculture activities in coordination with interested agencies and
shellfish producers over the next 5 years. After these reviews are
completed, we may be prepared to propose an NWP to authorize new
commercial shellfish aquaculture operations and the expansion of
existing operations in the next NWP re-issuance cycle. The information
gathered through the pre-construction notification process and
reporting requirement for existing operations in the current NWP will
support this effort.
Several commenters expressed confusion regarding whether ongoing
commercial shellfish operations require reauthorization under this NWP,
if those existing operations have previously been permitted by the
Corps.
Existing operations previously authorized by another NWP or another
form of DA permit, such as a regional general permit or an individual
permit, are covered until the expiration of the original permit. If the
operator wishes to continue, and the operation's size, conditions, and/
or practices trigger the pre-construction notification requirements of
this NWP, then a pre-construction notification must be submitted to the
appropriate district office for review prior to the expiration date of
the original permit in order to remain in compliance with Federal laws.
If the pre-construction notification requirements are not triggered,
the operator must submit the required brief report within 90 days of
the beginning of coverage under this NWP.
This NWP authorizes the continued operation of existing commercial
shellfish aquaculture operations. The continued operation of an
aquaculture activity may involve removing and replacing structures in
navigable waters of the United States on a recurring basis and requires
a current DA permit. However, if an operator is installing a fixed
structure, 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.
Many commenters were confused about the requirement to submit a
pre-construction notification, assuming that having to submit a pre-
construction notification meant that an individual permit would be
required. The requirement to submit a pre-construction notification
does not mean that an individual permit will be required. Instead, it
means that a district office will review the project, in coordination
with appropriate resource agencies, within a 45-day timeframe and
respond to the applicant with either a verification of the
applicability of the NWP or a determination that an individual permit,
or other type of DA permit, is required. If the applicant does not hear
back from the Corps within 45 days, he or she may assume that the
operation is authorized by the NWP.
A pre-construction notification is a brief document that is
intended to provide the district engineer with enough information to
determine whether an activity is authorized by NWP. The information
requirements for a pre-construction notification are listed in
paragraph (b) of general condition 27, Pre-Construction Notification.
Detailed studies or analyses are not required for pre-construction
notifications. The required description of the direct and indirect
adverse environmental effects that are expected to result from the NWP
activity should be brief, but with sufficient detail to allow the
district engineer to determine whether the adverse environmental
effects will be minimal and assess the need for compensatory
mitigation. The description for the pre-construction notification
should include the size of the project area, the name(s) of the species
being cultivated, the types of cultivation methods (e.g., long lines,
bottom culture, rack and bags), and the harvesting method (e.g., hand
pick, dredge, long line harvest). The description should also state
when dredge harvesting, harrowing, or tilling will occur in waters with
SAV.
For all projects that do not trigger the pre-construction
notification requirements of the NWP, submission of a brief report is
required. This reporting requirement will help us monitor the use of
this NWP, to help ensure that it authorizes only those activities that
have minimal individual and cumulative adverse effects on the aquatic
environment and other public interest review factors. We have attempted
to keep the reporting requirement as simple as possible, to minimize
administrative burdens on operators.
A few commenters suggested that NWP 48 is unnecessary because NWPs
4 and 27 adequately cover all the needs of commercial shellfish
operations.
Although shellfish seeding activities were authorized by previous
versions of NWP 4, that NWP did not authorize additional structures or
work in navigable waters commonly associated with commercial shellfish
aquaculture activities, such as the installation of stakes and netting
in navigable waters to
[[Page 11146]]
prevent predators from feeding upon the shellfish. Because of the
issuance of this NWP and the modification of NWP 27, it is no longer
necessary to include shellfish seeding in the list of activities
authorized by NWP 4 and we have removed it. NWP 27 does not cover
commercial shellfish operations. It covers shellfish habitat
restoration activities, including shellfish seeding, that are conducted
to restore shellfish populations. Restored populations may, at some
future date, be subject to recreational harvesting; but the purpose of
activities conducted under NWP 27 is restoration, not commercial
aquaculture. Although NWP 48 represents a change in how commercial
shellfishing operations are being regulated by the Corps, structures
and other work in navigable waters of the United States have been
regulated activities for decades. Discharges of dredged or fill
material into waters of the United States have been regulated under
Section 404 of the Clean Water Act since 1972, but the definitions of
these terms have changed over the years. Individual permits remain a
permitting tool that will be necessary in some circumstances. There are
several districts that currently have regional general permits in place
to authorize aquaculture activities and more general permits are
expected to be developed.
In the preamble to the September 26, 2006, proposal, we solicited
comments on whether to impose limits on the quantity of dredged or fill
material that could be discharged into navigable waters under this NWP.
One commenter said that this NWP should be conditioned to prohibit
discharges of dredged or fill material or to require pre-construction
notification for each activity involving such discharges. Many
commenters stated that there should be no limitation on the quantity of
dredged or fill material that could be discharged into navigable waters
because the cost of such material is limiting and also because most of
the material is removed during harvest. Many mentioned large Federal
restoration projects that have utilized shellfish seeding methods to
enhance estuaries. Several commenters objected to having no limits and
several suggested limiting the discharge to 3 to 6 inches or a certain
percentage of the water column. Several others indicated that materials
such as marl, concrete, and gravel, in addition to shell and shell
fragments, should be included in the material authorized for discharge.
It would be illogical to prohibit discharges of dredged or fill
material under this permit, since without such discharges, no permit is
required anyway. This NWP authorizes discharges of dredged or fill
material into waters of the United States only for shellfish seeding,
rearing, cultivating, transplanting, and harvesting activities for on-
going commercial shellfish aquaculture activities. With the exception
of harvesting activities, such discharges usually enhance habitat
characteristics to support the growth of shellfish. As for harvesting
activities, pre-construction notification is required for dredge
harvesting in areas inhabited by submerged aquatic vegetation, so case-
by-case review will be conducted to determine if the activity results
in more than minimal adverse effects on the aquatic environment. Pre-
construction notification is also required for tilling and harrowing in
submerged aquatic vegetation. Other harvesting activities that are part
of on-going activities are unlikely to result in more than minimal
adverse effects. Division engineers may impose regional conditions on
this NWP to further restrict cultivation or harvesting practices or to
require pre-construction notification for additional practices that may
be of concern within a particular area.
Many commenters expressed concern over whether the gear associated
with commercial shellfish culture would be authorized by this NWP,
noting that much of the in-water gear serves as habitat for other
aquatic species and is necessary for the success of a commercial
shellfish venture. Other commenters expressed concern over the waste
and trash left by geoduck operations and the adverse impacts that
litter has on the surrounding intertidal environment.
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 for the purposes of the commercial
seeding, rearing, cultivating, transplanting, and harvesting of
shellfish, which may involve the installation of buoys, floats, racks,
trays, nets, lines, tubes, and containers, as well as other associated
structures and work. The language of the NWP has been modified to
clarify that it does not authorize the discharge of dredged or fill
material into waters of the United States for attendant features of
commercial aquaculture operations such as boat ramps, stockpiles,
staging areas, and moorings or for the deposition of shell material
back into tidal waters as a waste material. As stated above, discharges
of dredged or fill material below the high tide line/ordinary high
water mark must be of the minimum necessary to provide suitable
planting substrate. Examples of commercial shellfish species for which
this NWP may be used to authorize existing commercial aquaculture
activities include oysters, clams, geoducks, mussels, and scallops. The
proposed NWP does not authorize commercial aquaculture activities for
crustaceans or finfish. Types of gear specific to a particular region
or species are best evaluated on a regional basis by the district
engineer and can be addressed through regional conditions.
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, shell
fragments, and/or shell fragments mixed with gravel/concrete/limestone
placed into waters to provide a substrate for attachment by free
swimming shellfish larvae (i.e., natural catch). Several commenters
asked that we clarify the definition of shellfish seeding. We have
provided a definition of shellfish seeding in the ``Definitions''
section of the NWPs. This definition was based on the definition
provided in the preamble to the September 26, 2006, Federal Register
notice (71 FR 56275).
Most commenters asked that we clarify our definition of submerged
aquatic vegetation (SAV) and asked that we limit our concern to those
species of aquatic vegetation that have been shown to have beneficial
environmental effects. Some commenters expressed concern that any
commercial aquaculture activity would have a negative impact on SAV and
therefore this NWP should not be issued. Many commenters asked that we
remove the pre-construction notification requirement for operations
having more than 10 acres of the project area occupied by SAV, stating
that shellfish beds clarify the water thereby increasing the likelihood
that SAV would colonize their project area. A few commenters suggested
that we define the density of bed and length of time present (i.e.,
recognize seasonal population fluctuation) necessary to trigger the
reporting requirement.
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). The definition
of vegetated shallows (see Part D, Definitions) clarifies that
vegetated shallows are those 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
[[Page 11147]]
freshwater systems. Macroalgae are not included in our definition of
SAV nor is it our intent to provide protection for noxious or invasive
species such as Zostera japonica. However, to minimize adverse effects
to valuable aquatic habitat, such as shallows vegetated by species such
as Zostera marina, we are requiring pre-construction notification for
dredge harvesting, tilling, or harrowing in areas inhabited by SAV. To
capture the regional variances, such as colonization rate, population
shifts, density, and species composition, districts may choose to
further refine the definition of SAV in their regional conditions to
better reflect environmental circumstances in their region. We are
removing the proposed requirement to submit a pre-construction
notification if the project area includes 10 acres or more of SAV
because we have determined that only certain types of activities
(dredge harvesting, tilling, harrowing) in SAV areas have the potential
to cause more than minimal adverse impacts.
The majority of commenters objected to the proposed prohibition
against the cultivation of new species by an operation while
recognizing the need to protect the environment from invasive species
colonization. A few commenters were in favor of the prohibition citing
concerns about invasive species and changing culture methods. One
commenter said that this NWP should not authorize experimental
cultivation of new species in a waterbody.
Upon review of the comments, the proposed NWP has been modified
slightly. The NWP does not authorize aquaculture activities for any
species that were not previously cultivated in the waterbody. However,
under this NWP, an individual operator can change the species grown
under this NWP within the project area, provided the change is limited
to species that have been previously cultivated in the water body. Such
a change would require pre-construction notification. The commercial
production of a shellfish species that has not been previously
commercially produced in the waterbody, including new exotic (non-
native) species, may only be authorized by an individual permit or a
regional general permit if applicable. Also, this NWP does not
authorize experimental cultivation of new species. It only authorizes
on-going commercial shellfish aquaculture activities, provided those
activities satisfy the terms and conditions of this NWP. Experimental
cultivation is considered to be a new activity, and may be authorized
by other DA permits if it involves activities subject to the Corps
regulatory jurisdiction.
Producers must be licensed, as required, through their State's
regulatory agency. Commercial harvest will only commence under each
State's Shellfish Authority, as delegated by the U.S. Food and Drug
Administration under the National Shellfish Sanitation Program. To be
eligible for coverage under this NWP, producers must obtain all
required permits or licenses required for their culture activities,
such as transfer permits, development permits, and land-use permits.
In response to commenters concerned about the individual and
cumulative adverse effects to the environment and the many commenters
who stated that acreage limits were not an adequate way of establishing
or evaluating the interaction of the shellfish operation with the
aquatic environment, an additional pre-construction notification
threshold has been added. When an existing operation decides to change
culture methods, for example to go from bottom-culture to long-line or
from long-line to bottom culture, pre-construction notification is
required. These existing operations may be authorized by this NWP,
after the district engineer has reviewed the pre-construction
notification and determined that the new activity complies with the
terms and conditions of the NWP and will have minimal adverse effects.
We are also committed to conducting programmatic reviews of
commercial shellfish activities generally to 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 in all divisions, and will involve Federal,
State and local agencies, stakeholders, and the general public to help
the Corps develop future 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. Completion of these programmatic reviews is not necessary
for authorization under this NWP. The data collected through the pre-
construction notification and reporting requirements will support these
reviews.
One commenter said that this NWP should include conditions
prohibiting the use of pesticides. A commenter stated that this NWP
should require pre-construction notification for any activity located
in National Park Service units, and that review by the National Park
Service should be conducted before the activity is authorized by this
NWP.
The Corps does not regulate application of pesticides under Section
10 of the Rivers and Harbors Act of 1899 or Section 404 of the Clean
Water Act. The application of pesticides into aquatic environments is
regulated by other agencies through other authorities. We do not agree
that pre-construction notification should be required for on-going
commercial shellfish aquaculture activities being conducted in areas
under the purview of the National Park Service. The National Park
Service has the authority to control the activities conducted in its
units, to ensure that those activities are consistent with any
management requirements or objectives established for those units.
Proposed NWP D is issued as NWP 48, with the modifications
discussed above.
NWP 49. Coal Remining Activities. This is a new NWP. It provides
for authorization of projects associated with the remining and
reclamation of lands that were previously mined for coal. New mining
may be conducted on adjacent areas provided that the area mined is
smaller than 40 percent of the previously mined lands plus the unmined
lands required to reclaim the previously mined lands as determined by
SMCRA. Pre-construction notification is required for all activities
proposed to be authorized by this permit, and the permittee must
receive written notification from the District Engineer prior to
commencing the activity. Additionally, the projects must be authorized
by OSM or by states with approved programs under Title IV or V of
SMCRA.
One commenter requested that the proposed NWP be changed to include
Abandoned Mine Land (AML) projects that are government funded or
contracted. They believed that the aquatic benefits resulting from the
AML projects are similar in nature to those that would be covered by
this NWP, and that since this NWP requires notification, any adverse
impacts to high-quality waters could be avoided. Another commenter
suggested that the Corps clarify the extent to which NWPs are required
for AML projects, and another commenter stated that the Corps should
clearly state that no NWP of any kind is required for projects that
fall under Title IV of SMCRA. One commenter stated that it is
imperative that the new NWP 49 proposed by the Corps not inhibit
efforts but rather support recent actions by states, EPA, and OSM to
encourage opportunities for remining AML impacted lands and waters.
[[Page 11148]]
We agree that this NWP should support and encourage opportunities
for remining AML impacted lands and waters. We are thus modifying the
text of this NWP to authorize AML projects that include coal extraction
authorized by Title IV of SMCRA, in addition to remining authorized
under Title V. To authorize Title IV AML projects that do not involve
coal extraction, we have modified NWP 37, which authorizes emergency
watershed protection and rehabilitation activities. In response to the
comment that projects conducted under Title IV of SMCRA should not
require Section 404 authorization, any discharge of dredged or fill
material into waters of the United States, requires an authorization
under Section 404 of the Clean Water Act unless the activity is
specifically exempt.
Several commenters agreed that the Corps should issue an NWP to
authorize remining activities. They stated that until recently the
Corps has not recognized the environmental benefits of remining and
basically ignored remining incentives developed by Congress and other
Federal agencies such as OSM and USEPA. However, these commenters
believe that the requirement that any newly mined land not exceed 40
percent of previously mined land plus any unmined land necessary for
reclamation is inappropriate. They state that the ratio should be left
up to the SMCRA agency on a case-by-case basis and that a rigid 40
percent ratio may not allow enough material to be generated to reclaim
the previously mined land. One commenter stated that the Corps should
reconsider the proposed limitations since an overall improvement in
aquatic resources is guaranteed and, as proposed, the ratio threshold
only serves to limit the reclamation of abandoned mine lands. One
commenter recommended that the ratio limitation be removed and that the
Corps rely solely on the demonstration that the overall project,
including the reclamation activity and any new mining, will result in a
net increase in aquatic functions. One commenter stated that the Corps
should reconsider basing permit eligibility on uplands area (acreage),
which is outside the jurisdiction of the Corps, and instead focus on
the improvement that such activities would have on the aquatic
resources within the project area, which is within Corps jurisdiction.
Another commenter said that this NWP should not authorize coal mining
in any new areas, because of the potential for those activities to
cause more than minimal adverse effects on the aquatic environment.
We would like to clarify that the ``remined'' area on which the 40
percent ratio is based includes any unmined lands required to reclaim
the previously mined lands, as determined by the SMCRA agency. The
allowance for an additional 40 percent of newly mined area is above and
beyond the area required to complete the restoration of the previously
mined land. This NWP was intended to authorize single and complete
projects where a clear majority of the mining would be considered
remining, and therefore offer operators incentives to reclaim
previously mined lands. We thus believe that there needs to be both a
limit on new mining and a requirement for an overall increase in
aquatic resource functions for this NWP. We believe it is appropriate
to authorize a limited amount of coal mining in new areas, as long as
the remining and reclamation activities are conducted. In addition, the
adverse effects of any new mining will be reviewed through the pre-
construction notification process, and the permittee cannot begin work
until written verification is received from the district engineer,
after determining that the remining activity, plus any new mining, will
result in minimal adverse effects on the aquatic environment.
Proposed Limits
One commenter suggested that while some impact limits may be
appropriate, the limit should not be based on drainage area, because
such an approach fails to recognize that small impacts that occur in
the lower reaches of a watershed may result in more than minimal
adverse effects on the aquatic environment. One commenter stated they
supported the concept of this NWP but believe it should have the same
restrictions as NWP 21. Several commenters recommended that if the
Corps does issue this NWP, it should include limitations on the linear
feet of stream that can be filled. One commenter suggested a limit of
\1/2\-acre per use (which is the same as that proposed for NWP 50 and
other NWPs), and stated that without such a limit this NWP would allow
impacts that far exceed those allowed under other NWPs. One commenter
recommended imposing a 300 linear foot limit for losses of stream bed.
Several commenters recommended limiting this NWP to activities that
result in the loss of less than 300 linear feet of streams, to be
consistent with other NWPs.
We did not propose impact limits based on drainage area. We also do
not believe that specific acreage or linear feet of stream limits
should be included on a national basis for this NWP and did not
proposed such limits. If division engineers believe they need to add
limits at a regional level to ensure that this NWP authorizes only
activities with minimal adverse effects on the aquatic environment and
which satisfy other public interest review factors, they may do so. We
believe that at a national level the ratio limitation and the
requirement for an overall increase in aquatic function are sufficient
to ensure that this NWP authorize only activities that produce no more
than minimal adverse impacts, both individually and cumulatively.
Furthermore, this NWP is used to provide Section 404 authorization for
surface coal mining activities that have also been authorized by OSM or
states with approved programs under Title IV or Title V of SMCRA. The
Corps believes that the analyses and environmental protection standards
required by SMCRA in conjunction with the pre-construction notification
review further ensure that the NWP activities result in minimal
individual and cumulative adverse impacts on the aquatic environment.
In fact, this NWP requires a net environmental benefit in the form of
increased aquatic resource functions, which will be identified through
functional assessment methods. Through the pre-construction
notification process, district engineers can also impose special
conditions on a case-by-case basis to ensure that the adverse effects
on the aquatic environment are minimal. Also, if the district engineer
determines through this case-by-case review that the activity has the
potential to result in more than minimal adverse effects to the aquatic
environment, he or she can exercise discretionary authority to require
an individual permit.
Functional Analysis
A couple of commenters stated that the Corps should not require a
functional analysis of the pre-mining aquatic conditions. They state
that in these cases, water quality is poor and can only be improved by
completion of the authorized activities. Furthermore, many of the sites
are located on waters that are listed on a state's 303(d) impaired
waters lists. A couple of commenters stated that the Corps' requirement
for a quantified prediction of the environmental benefits that will
result is unnecessary because EPA data shows that remining operations
will result in a net increase in aquatic resource functions. One
commenter stated that, as the Corps has the data to show that
reclamation projects in
[[Page 11149]]
formerly mined areas have a beneficial environment effect, every
permittee should not need to prove this again, in a duplication of the
SMCRA requirements. One commenter stated that the Corps should not
specify that a net overall improvement to the site's aquatic functions
is required, but should focus on whether the project will have minimal
impacts to aquatic resources in the project area.
We agree that remining projects are generally beneficial, which is
one of the reasons for proposing to issue this new NWP. However, we
must track impacts and mitigation and show both on an individual and a
cumulative basis that each project has a minimal impact on the aquatic
environment. This can only be done by the applicant submitting
information on pre-mining conditions as well as what they anticipate
the post mining conditions will be. This permit requires that the
reclamation plan result in a ``net increase in aquatic resource
functions''. Studies typically show that remining operations do improve
areas that were degraded by past mining. However, landscape
characteristics vary, as do mining and reclamation practices.
Furthermore, as an incentive, this permit also authorizes a limited
amount of new mining in previously unmined areas adjoining the remined
area. Therefore, improvements to aquatic resource functions must be
demonstrated for any project authorized under this NWP. To do this, the
permittee must submit functional assessments showing that the project
as a whole, including remining, reclamation and any new mining, will
result in improved functions, such as water quality, sediment transport
or retention, and habitat, as appropriate for the specific type of
aquatic habitat (e.g., stream or wetland). The functional assessments
can be based on information developed as part of the SMCRA process, and
should clearly identify and, if possible, quantify, the functional lift
that will be achieved for each function. We realize the often poor
quality of the environment where these projects are proposed and
appreciate the benefits to the aquatic environment that can be achieved
by completing these projects.
We understand coal mining is covered by many environmental
regulations, however the Corps has determined that the current SMCRA
process does not adequately address impacts to the aquatic environment
as required under Section 404 of the Clean Water Act. Accordingly, this
NWP does not duplicate the SMCRA permit process, but we rely on that
process for information that is useful in our Section 404 analyses. We
work with the other agencies to avoid potential duplication of effort,
and currently uses appropriate work and studies done by or for others
(i.e., ESA or SHPO surveys/findings) in our analyses of proposed
projects.
Mitigation
A couple of commenters stated that the Corps should not require
additional mitigation beyond what is already required of the applicant
pursuant to the SMCRA permit, since the permitted activities will lead
to significant water quality improvements both at the site and in the
watershed. A number of commenters asserted that the Corps has not
demonstrated that compensatory mitigation offsets the adverse impacts
of this NWP. Several commenters also stated that mitigation must be
based on an assessment of stream functions, for which the Corps has no
approved methods. One commenter recommended that mitigation should
result in at least a 1:1 replacement of acres lost in order to achieve
no net loss of waters of the United States from this NWP. Two
commenters stated that the CWA does not allow the Corps to issue
general permits based on the use of compensatory mitigation to reduce
the environmental impacts to minimal.
As a result of the pre-construction notification process the Corps
will review each project proposed for authorization by this NWP on a
case-by-case basis. Additional mitigation may not be required for a
project. However, this will be determined through the district
engineer's minimal impact determination. As stated in our regulations,
we can rely on mitigation in making a minimal adverse environmental
effects determination (see 33 CFR 330.1(e)(3)).
The Corps will review the impacts from the proposed final design
using a functional assessment method. If the functions gained by the
proposed project exceed the functions lost as a result of proposed
activities then additional mitigation may not be required. We are
currently developing new stream functional assessment protocols for
identifying the functions lost through impacts and the functions gained
or enhanced through mitigation.
General condition 20 establishes the framework for determining
appropriate mitigation and achieving no net loss of aquatic resources.
The Corps takes into account the fact that, in certain areas and
circumstances, any compensatory mitigation required by the Corps may be
fully encompassed or exceeded by requirements of others (e.g.,
reclamation requirements under SMCRA). As long as the impacts to the
aquatic environment are fully mitigated, the Corps will not require
additional compensation.
Pre-Construction Notification Requirement
One commenter requested the pre-construction notification
requirement be removed. One commenter expressed approval of the
requirement that the applicant receive written authorization from the
district engineer prior to commencing the activity.
We believe that the pre-construction notification requirement helps
ensure that no activity authorized by this permit will result in
greater than minimal adverse impacts, either individually or
cumulatively, on the aquatic environment, because it requires a
specific case-by-case review of each project. If the district engineer
determines through this case-by-case review that the activity has the
potential to result in more than minimal adverse effects to the aquatic
environment, he or she can exercise discretionary authority to require
an individual permit.
Minimal Adverse Effects
A number of commenters stated that this NWP would result in more
than minimal adverse environmental effects, particularly on a
cumulative basis, and would result in significant degradation of
streams. Therefore, the commenters believe NWPs should not be used to
authorize these activities, and these activities should require
individual permits. Several commenters cited the 2002 programmatic
Environmental Impact Statement on surface coal mining, which documented
impacts to waters, particularly in Appalachia. A few commenters cited
studies conducted by EPA and other research on the ecological impacts
of valley fill on streams and on fish populations.
We believe that a careful case-specific minimal impact
determination is necessary for this NWP. In addition, as with NWP 21,
this NWP requires a written verification before the project proponent
may proceed with the work. The applicant must clearly demonstrate that
the reclamation plan will result in a net increase in aquatic resource
functions, and that any adverse impacts to the aquatic environment are
minimal. If the district engineer determines through this case-by-case
review that the activity has the potential to result in more than
minimal adverse effects to the aquatic environment, he or she can
exercise discretionary authority to require an individual permit.
Since the functions of aquatic resources vary widely across the
country, assessment of cumulative impacts is conducted by Corps
districts
[[Page 11150]]
on a watershed basis, based on regional and local conditions and
procedures. If the use of this NWP results in more than minimal
cumulative adverse effects on the aquatic environment in a watershed,
the division engineer may modify, suspend, or revoke this NWP in that
watershed. We believe the pre-construction notification requirements
for this NWP ensures that authorized activities result in no more than
minimal adverse impacts to the aquatic environment because each project
is reviewed on a case-by-case basis and the district engineer either
makes a minimal impacts determination on the project or asserts
discretionary authority and requires an individual permit.
Additionally, as noted above, division engineers can add regional
conditions to any NWP to further restrict the use of the NWP to ensure
that the NWP authorizes only activities with no more than minimal
adverse effects on the aquatic environment in a particular watershed or
other geographic region. Each district tracks losses of waters of the
United States authorized by Department of the Army permits, including
verified NWPs, as well as compensatory mitigation achieved through
aquatic resource restoration, creation, and enhancement.
Impoundments
Several commenters stated that coal slurry impoundments should not
be authorized by this NWP. The commenters also stated that NWPs 21, 49
and 50 cannot be used for both valley fills and coal slurry
impoundments, as they are not activities that are ``similar in
nature'', as required for authorization under an NWP.
The NWPs are issued in accordance with Section 404(e) of the CWA.
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 the
``categories of activities that are similar in nature'' requirement of
Section 404(e) is to be interpreted broadly, for practical
implementation of the NWP program. NWPs as well as other general
permits are intended to reduce administrative burdens on the Corps and
the regulated public. We believe that slurry impoundments are support
features associated with coal mining and thus can be authorized by this
NWP. However, the impacts associated with any such impoundments must be
addressed in the required demonstration that the project will result in
a net increase in aquatic resource functions.
Scope of Analysis
One commenter stated that only poor and isolated communities are
being affected by surface coal mining. Another commenter noted that
coal slurry impoundments can fail and release mining wastes into
downstream waters. Two commenters stated that loss of forest and
movement of dirt associated with surface coal mining has detrimental
environmental effects.
Impacts to poor and isolated communities are outside of the Corps'
scope of analysis pursuant to the National Environmental Policy Act.
The Corps evaluation of coal mining activities is focused on impacts to
aquatic resources. In accordance with E.O. 12898, the Corps has
determined that the issuance of the NWPs, including NWP 49, will not
cause disproportionate impacts to minority or low-income communities
(see discussion of E.O. 12898 below). The design and safety of coal
slurry impoundments are more appropriately addressed through the SMCRA
process, which provides design and safety requirements for these
facilities. Mining in general is permitted under a separate Federal
law, the Surface Mining Control and Reclamation Act. Impacts associated
with surface coal mining and reclamation operations are appropriately
addressed by the Office of Surface Mining or the applicable state
agency. Where relevant to potential impacts on aquatic resources, the
Corps considers documentation prepared pursuant to SMCRA in its review
of pre-construction notifications.
Public Participation
Several commenters stated that this NWP does not provide the public
with an opportunity to comment on the specific conditions of the NWP
authorizations that affect their communities and watersheds.
Section 404(e) of the Clean Water Act provides the statutory
authority for the issuance of general permits on a nationwide basis for
any category of activities that the Corps determines will have minimal
adverse impacts on the aquatic environment, both individually and
cumulatively. The Corps establishes NWPs in accordance with section
404(e), by publishing and requesting comments on the proposed permits.
The general public has the opportunity to comment on NWPs at this time.
In order to address the requirements of the National Environmental
Policy Act, the Corps prepares an environmental assessment for each
NWP, as well as a 404(b)(1) Guidelines analysis if the NWP authorizes
activities under Section 404 of the Clean Water Act. The decision
document discusses the anticipated impacts on the Corps' public
interest factors from a national perspective. NWPs are issued at the
conclusion of this process. The individual projects that are proposed
for authorization under an NWP are not given a permit but a
verification or authorization that the project complies with an NWP.
There are no requirements for public comments on specific projects
authorized under NWPs. However, as noted above, one of the bases for
our determination that the activities authorized by this NWP will have
minimal impacts is that they must also be authorized by a permit issued
under SMCRA, which requires many of the same types of analyses that we
would require under Section 404. In addition, each SMCRA permit action
includes a public participation process. Therefore, as a practical
matter, the public will have the opportunity to comment on each
individual project authorized under this NWP.
General
One commenter stated that there is no rational basis for the
creation of this proposed NWP since under SMCRA, the term ``surface
coal mining operations'' includes both Title V permits authorizing
remining of previously-mined lands as well as mining of lands that have
not been previously disturbed. The commenter stated that the NWP may
not conform to the Section 404(b)(1) Guidelines, which would require
greater scrutiny for remining activities due to the availability of
existing benches, roads and fills that could render new fill in waters
of the United States unnecessary. The commenter also cited Section
301(p) of the Clean Water Act, which allows exceptions to effluent
limits for surface coal remining operations. The commenter asserted
that Section 404 does not have a similar exception for remining, and
that this NWP cannot replace the requirements for avoidance,
minimization and mitigation with the proposed amorphous standard of a
``net increase in aquatic resource function''. The commenter also
stated that it was unclear from the text of this NWP how the Corps
intends the remining authorization to work.
New coal mining activities eligible for authorization under this
NWP may be authorized by NWP 21, but in contrast to NWP 21 this NWP
also authorizes abandoned mined land reclamation activities under Title
IV of SMRCA that involve coal extraction. We recognize the benefits of
restoration of mine sites that are causing physical and or
[[Page 11151]]
chemical impacts to waters of the United States and the fact that due
to changes in technology, additional coal may be excavated as part of
the reclamation process. These sites may also be combined with adjacent
unmined areas to develop a project that is economically viable. The net
result of these combined remining/new mining projects is that sources
of pollution to downstream waters, including acid mine drainage and
sediment, will be eliminated or substantially reduced when the site is
reclaimed. We believe this NWP will encourage applicants to consider
reclamation of adjacent lands in their overall project plans. As noted
previously, the applicant needs to show through a functional assessment
method that the project will result in a net increase in aquatic
resource functions.
As noted previously, Section 404(e) of the Clean Water Act provides
the statutory authority for the issuance of general permits on a
nationwide basis for any category of activities. As part of the
establishment of the NWPs a decision document is prepared for each NWP
along with a 404(b)(1) Guidelines analysis. Although analysis of
offsite alternatives is not required in conjunction with general
permits, each proposed project is evaluated for onsite avoidance and
minimization, in accordance with general condition 20, Mitigation. This
includes consideration of the availability of existing benches, roads,
and fills that could be used instead of placing new fill in waters of
the United States.
Proposed NWP E is issued as NWP 49, with the addition of
authorization for projects authorized under Title IV of SMCRA that
include coal extraction.
NWP 50. Underground Coal Mining Activities. This is a new NWP. Pre-
construction notification is required for all activities proposed to be
authorized by this permit. As with NWP 21, permittees must receive
written authorization from the Corps before proceeding. Additionally,
the projects must be authorized by OSM or by states with approved
programs under Title V of SMCRA.
Proposed Limits
Numerous comments were received regarding the proposed \1/2\ acre
limit on this NWP. Many commenters stated that the \1/2\ acre limit is
too small to accommodate underground coal mining activities and
attendant features and it should be deleted. One commenter recommended
that any limits should be imposed regionally rather than nationally.
One commenter stated that the \1/2\ acre limit was too high and the
\1/2\ acre limit applied to small streams could result in the fill of
long segments of streams without proper mitigation. Two commenters
stated that if NWP 50 is issued, it must include stringent limits on
the amount of stream that can be filled. One commenter stated that the
NWP should be limited to activities that fill less than 300 feet of
streams and should not be used in watershed where the cumulative amount
of filled streams is already likely causing more than minimal harm.
In consideration of the comments received, we have decided not to
include the \1/2\-acre limit. This permit replaces the 2002 version of
NWP 21 for underground coal mining activities. The new NWP 21, which
continues authorization for surface coal mining activities, does not
include an acreage limit. Instead, NWP 21 relies on the SMCRA
permitting process in combination with an enhanced pre-construction
notification requirement which requires that permittees wait for
written verification from the Corps before beginning their projects,
even if the pre-construction notification review takes more than 45
days. After further consideration, we have determined that the same
logic that applies to NWP 21 also applies to NWP 50, and so have
adopted similar requirements with respect to limits and verification.
Thus, the \1/2\ acre limit has been dropped, and permittees must wait
for written verification from the Corps before proceeding.
Pre-Construction Notification
Four commenters recommended that applicants should be required to
receive written authorization prior to commencing the activity. As
noted above, the Corps has now adopted this requirement for this permit
and dropped the \1/2\ acre threshold. This requirement is necessary to
give the district engineer adequate time to determine whether or not to
assert discretionary authority and require an individual permit if the
impacts of the proposed activity are more than minimal, either
individually or cumulatively.
Use of NWP 21 for Underground Mining
Concerns were expressed by several commenters regarding the
continued use of NWP 21 to authorize underground mining activities.
These commenters requested clarification regarding this issue. One
commenter noted that if NWP 21 could not be used for underground mining
then most underground mine discharges would require an individual
permit. One commenter expressed concerns regarding the use of NWP 21
for coal preparation and processing activities outside of the mine
site. The commenter noted that preparation activities were not part of
a surface coal mining project.
The Corps envisions that activities that are not part of the
underground mine site, which are outside the SMCRA permit area, can be
authorized by NWP 21 if they met the conditions for its use. We note
that many processing plants serve both underground and surface mine
sites, some at considerable distance, and that construction of such
plants does not involve underground disturbances in the way that
underground mining does. Thus we believe it appropriate to continue
allowing NWP 21 to authorize such activities. We believe the changes
discussed above to NWP 50 address the concern that, under the proposed
version of the permit, many underground coal mining activities would
have required an individual permit. There is no longer an acreage limit
on the use of this permit, although it can only be used to authorize
activities which the district engineer has determined will have no more
than minimal adverse effects, both individually and cumulatively, and
only after the district engineer has notified the operator in writing
that use of this NWP is authorized.
Minimal Adverse Impacts
Many commenters were opposed to issuance of this NWP. They stated
that general permit procedures were inappropriate for such large scale
activities and that these types of activities seemed to demand a
thorough review, public notice, and an alternatives and minimization
analysis. One commenter stated that the Clean Water Act does not allow
the Corps to issue general permits on the basis that compensatory
mitigation will reduce net adverse effects to a minimal level. Two
comments stated that NWPs can only be used for activities that cause
minimal environmental effects both individually and cumulatively, and
if impacts are more than minimal, the project requires an individual
permit with site-specific analysis and public comment. Several
commenters stated that coal mining results in significant environmental
impacts and degradation of streams in Appalachia.
The Corps believes that a careful case-specific determination of
impacts is necessary for this NWP. The pre-construction notification
process, along with the requirement for written verification from the
Corps, will allow the district engineer to determine if the impacts of
the proposed activity are no more than minimal, individually and
[[Page 11152]]
cumulatively, or whether an individual permit is required. Furthermore,
we believe that the Corps can rely on mitigation in making a minimal
adverse environmental effects determination.
We believe that an assessment of individual and cumulative impacts
cannot be made on a national level, because the functions and values of
aquatic resources vary widely across the country. Assessment of
cumulative impacts is more appropriately conducted by Corps districts
on a watershed basis, based on regional and local conditions and
procedures. We believe our process for this NWP ensures that activities
authorized by the NWP result in no more than minimal adverse impacts to
the aquatic environment because each project is reviewed on a case-by-
case basis and the district engineer either makes a minimal impacts
determination on the project or asserts discretionary authority and
requires an individual permit. Additionally, as noted above, division
engineers can add regional conditions to any NWP to further restrict
the use of the NWP to ensure that the NWP authorizes only activities
with no more than minimal adverse effects on the aquatic environment in
a particular watershed or other geographic region. Each district tracks
losses of waters of the United States authorized by Department of the
Army permits, including verified NWPs, as well as compensatory
mitigation achieved through aquatic resource restoration, creation, and
enhancement. Furthermore, as with NWP 21, all activities authorized by
this permit require authorization under SMCRA, and the SMCRA analysis,
documentation and process requirements largely substitute for the
analysis, documentation and process requirements of an individual
permit. This is not to say that discharges related to coal mining and
their impacts on aquatic resources do not require independent review
and authorization by the Corps with respect to the requirements of the
CWA, but the Corps believes that the analytical and process
requirements can be streamlined by relying on the SMCRA process to the
extent appropriate. Where the district engineer determines that these
process requirements are not adequate for a particular project, he or
she will require an individual permit.
404(b)(1) Guidelines
Several commenters stated that any proposed disturbance to waters
to support coal processing or underground coal mining activities should
be subject to the Section 404(b)(1) Guidelines, and that alternatives
that do not result in impacts to waters of the United States are
available.
As noted previously, Section 404(e) of the Clean Water Act provides
the statutory authority for the issuance of general permits on a
nationwide basis for any category of activities. As part of the
establishment of the NWPs a decision document is prepared for each NWP
along with a 404(b)(1) Guidelines analysis. Although analysis of
offsite alternatives is not required in conjunction with general
permits, each proposed project is evaluated for onsite avoidance and
minimization, in accordance with GC 20. This includes consideration of
alternatives that do not result in impacts to waters of the United
States.
One commenter stated that it was a duplication of effort to have a
review of the applicants' reclamation plan.
The Corps understands coal mining is covered by many environmental
regulations, however the Corps has determined that SMCRA does not
currently adequately address impacts to the aquatic environment as
required under Section 404 of the CWA. Therefore this NWP does not
duplicate the SMCRA permit process but does rely on it for information
used in the analysis. The Corps continues to work with the other
agencies to avoid potential duplication of efforts. The reclamation
plan can be used to consider proposed mitigation measures for the
projects being proposed for authorization by NWP 50. This information
will be used by the Corps in making a determination as to whether the
impacts are no more than minimal.
Scope of Analysis
One commenter stated that there should be a way to figure out how
to extract the coal and still protect the environment. Another
commenter noted that the amount of earth moving by mining activities is
sufficient by itself to demonstrate that environmental impacts of
mining are significant. One commenter stated that the subsidence that
may occur as a result of underground mining should be considered in
determining the acreage impacts to waters for this NWP. One commenter
noted that coal mining waste contains chemical components that are
toxic to aquatic life and that waste impoundments may fail. The
commenter believed that this justifies an independent review. One
commenter stated that the ``facing up'' practice cannot be carved out
from the full range of environmental impacts associated with
underground mining operations and must be reviewed comprehensively and
not piecemeal.
The Corps evaluation of coal mining activities is focused on
impacts to aquatic resources. Other impacts of coal mining are
addressed under a separate Federal law, SMCRA. Such impacts, including
those associated with reclamation operations, are appropriately
addressed by OSM or the applicable state agency, if program delegation
has occurred. To the extent that reclamation activities affect waters
of the United States, these will be addressed in the Corps review and
appropriate mitigation required.
Similar in Nature
Several commenters stated that slurry impoundments should not be
allowed under NWPs, and that NWPs can only be issued for activities
that are similar in nature. The Corps has determined that slurry
impoundments are related to underground mining activities. The NWPs are
issued in accordance with Section 404(e) of the CWA. 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 the ``categories of
activities that are similar in nature'' requirement of Section 404(e)
is to be interpreted broadly, for practical implementation of the NWP
program.
Mitigation
Several commenters stated that the mitigation done for coal mining
impacts is scientifically indefensible and, absent such mitigation, the
projects authorized under NWP 50 have more than minimal adverse effect
and are therefore not eligible for an NWP. They stated that current
mitigation projects have so far been unsuccessful and referenced a
court case in the Southern District of West Virginia (Ohio Valley
Environmental Coalition v. Bulen), where they noted that a Corps
official stated that he did not know of a single instance of successful
headwater stream creation. Also, the commenters stated that the Corps
did not include any specific guidelines for how to assess stream
function in order to determine the adequacy of compensatory mitigation.
They also stated that the Corps has not shown that mitigation will
offset the impacts authorized under NWP 50 or that off-site enhancement
of streams would fully compensate for functions of streams that are
destroyed. Other commenters stated that the Corps mistakenly allows the
mitigation requirements of SMCRA and state water quality laws to
satisfy the independent
[[Page 11153]]
requirements of Section 404 of the Clean Water Act. They stated that
allowing a permittee to claim a compensatory mitigation or reclamation
activity already required under SMCRA as compensatory mitigation under
the Clean Water Act is ``double-counting'' and improperly blurs the
requirements of sequencing (i.e., avoidance, minimization, mitigation)
imposed under the 404(b)(1) guidelines. Other commenters recommended
that a mitigation ratio of at least 1:1 should be required in order to
achieve no net loss, and that mitigation also should be required for
potential, as well as actual, impacts. Several commenters stated that
final reclamation of wetland habitat will most likely occur in the
absence of required compensatory mitigation.
In order to ensure that an activity results in no more than minimal
adverse effects on the aquatic environment, the Corps will add permit
conditions that require compensatory mitigation that meets specified
success criteria. The Corps will generally require the permittee to
monitor the mitigation site for five years and, if the mitigation site
does not meet the success criteria at that time, remediation or
additional mitigation will be required. This ensures that the
authorized activity will not result in a net loss in aquatic functions.
The Corps has increased its compliance efforts to ensure that projects
authorized by DA permits are constructed as authorized and that
mitigation is successful.
We are currently developing new stream functional assessment
protocols to identify and quantify the functions lost through
authorized impacts and the functions gained or enhanced through
mitigation. The Corps coordinates with the SMCRA and state resource
agencies to achieve appropriate aquatic restoration on mine sites,
which can reduce or eliminate the amount of off-site compensatory
mitigation needed. The Corps does not consider this ``double-
counting'', because the areas restored are only counted once in the
replacement of aquatic resource functions. As long as the functions
lost as a result of the permitted activity are mitigated through the
onsite restoration or enhancement, it does not matter if the
restoration also meets other goals unrelated to the Section 404
impacts. General condition 20 establishes the framework for achieving
no net loss of waters/wetlands, as well as the sequential review of
mitigation approaches on-site. The Corps takes into account the fact
that, in certain areas and circumstances, any Corps compensatory
mitigation requirement may be fully encompassed or exceeded by
requirements of others. As long as the impacts to the aquatic
environment are fully mitigated, the Corps will not require additional
compensation.
Proposed NWP F is issued as NWP 50, with the modifications
discussed above.
General Conditions
One commenter supported the proposed change to the ordering of the
general conditions. One commenter said that the proposed changes to
general conditions will reduce environmental protection. A commenter
stated that temporary impacts should be addressed through a new general
condition, instead of requiring separate authorization under NWP 33.
The changes to the general conditions will help improve
environmental protection, by providing clearer and more enforceable
requirements for permittees. Department of the Army permits are
required for temporary structures, work, or discharges into waters of
the United States, including navigable waters, unless those activities
are exempt from permit requirements. Therefore, those regulated
activities cannot be authorized through a general condition. In some
cases, temporary structures, work, or discharges associated with
another permitted activity are included in the NWP authorization for
that activity; in other cases temporary structures, work or discharges
must be authorized separately under NWP 33.
One commenter said that the proposed ``Note'' for the NWP general
conditions should contain language requiring permittees to comply with
regional conditions and state water quality standards. This commenter
also requested that the word ``should'' be replaced with ``must.''
The proposed ``Note'' clearly states that permittees are required
to comply with regional conditions and that permittees should check on
the status of water quality certifications and Coastal Zone Management
Act consistency determinations before using an NWP. We cannot require
prospective permittees to contact district offices to obtain this
information (hence we have not replaced ``should'' with ``must'') but
we have clarified that individual certification is required in cases
where prior certification for the NWP has not been received. Permittees
may also be able to obtain information on regional conditions and the
status of water quality certifications and Coastal Zone Management Act
consistency determinations through the Internet or other sources.
One commenter recommended adding a new general condition to address
the downstream movement of substrate and wood. This general condition
would require stream crossings, such as bridges and culverts, to allow
downstream movement of substrate and wood during 100-year flow events,
as well as movement of wood from upstream segments to downstream
segments. Another commenter suggested adding a new general condition to
address adverse impacts from invasive species.
We do not agree that it is necessary to add a new general
condition, as there are other general conditions which already include
adequate provisions to address this concern. General condition 2,
Aquatic Life Movements, states that no activity may substantially
disrupt the necessary life-cycle movements of those species that
normally migrate through the area. General condition 9, Management of
Water Flows, states that, to the maximum extent practicable, the
activity must not restrict or impede the passage of normal or high
flows, unless the primary purpose is to impound water. In general,
blockages caused by restricted movement of wood or substrate would
violate these conditions and must be prevented. Further, the ability
for division and district engineers to exercise discretionary authority
or regionally condition proposed activities under an NWP are
sufficiently to address any site-specific concerns related to blocked
movement of wood and ensure that authorized activities result in
minimal adverse effects on the aquatic environment. The Corps does not
have the regulatory authority to prohibit the introduction of invasive
species. Invasive species may become established in areas through many
mechanisms, not just disturbances caused by construction activities
authorized by NWPs and other Corps permits. Such a condition would also
be unenforceable and therefore such a general condition would be
contrary to 33 CFR 325.4(a).
A number of commenters objected to the removal of the phrase
``including structures or work in navigable waters of the United States
or discharges of dredged or fill material'' from text of certain
general conditions. One commenter asked if removal of that phrase from
those general conditions would reduce protection of aquatic resources.
The removal of that language will not affect protection of waters
of the United States. The stricken language was considered redundant as
it simply refers to the general types of activities regulated under
sections 10 and 404.
[[Page 11154]]
General Conditions
GC 1. Navigation. We proposed to modify this general condition to
require permittees to install any safety lights and signals prescribed
by the U.S. Coast Guard. We also proposed to modify this general
condition to notify permittees that they may be required to remove
structures or work that cause unreasonable obstruction to navigation.
One commenter supported the requirement concerning safety lights
and signals. One commenter said that the Federal government should bear
the financial costs for the removal of structures or work it
authorized. One commenter stated that the Federal government itself
could be a permittee and be required to remove the structure or work at
the Federal government's expense. One commenter said that this general
condition should also include waters determined by states to be
navigable waters.
There may be cases where activities authorized by Department of the
Army permits interfere with navigation or an existing or future
operation of the United States and need to be removed. The cost of
removal is the responsibility of the permittee, even in cases where the
permittee is the Federal government. If there is any question as to
whether or not a particular activity or structure will interfere with
navigation, the permittee should check with the Coast Guard before
beginning the activity. Adverse effects to navigable waters identified
by states that are not navigable waters of the United States should be
addressed by state regulatory programs. The Corps lacks the authority
to enforce state laws and regulations for state navigable waters.
The general condition is adopted as proposed.
GC 2. Aquatic Life Movements. We proposed to modify this general
condition by adding the phrase ``if known'' before ``necessary life
cycle movements'' because those life cycle movements that are important
are not always well understood for indigenous aquatic species. The
intent of this general condition is to ensure that the necessary
movements of aquatic species are not substantially disrupted.
Many commenters expressed opposition to the proposed modification
and recommended removing the phrase ``if known.'' They stated that the
lack of knowledge concerning aquatic life movements should not be
construed as authorization to allow disruption of aquatic life cycle
movements. One commenter supported the proposed modification, and also
recommended adding ``at the time of the permit application, if known,
or if documented at the time of application.'' to this general
condition.
Activities authorized by NWPs should not substantially disrupt the
necessary life cycle movement of aquatic species, and the absence of
species-specific information does not mean measures cannot be taken to
prevent unnecessary obstructions to those movements. Even if the
necessary life cycle movements are not known, inferences can be made to
help ensure that those movements can continue. Those inferences can be
based on general considerations of the mitigation measures necessary to
ensure that adverse impacts to aquatic life movements are minimized to
the maximum extent practicable. For example, properly sized culverts
that are installed to retain low flow conditions will help ensure that
life cycle movements will continue. Therefore, we are removing the
phrase ``if known'' from this general condition to allow district
engineers to continue to use their judgment, so that adverse effects to
aquatic life movements are minimized, even if the necessary life cycle
movements are not known, but can be generally inferred.
Two commenters requested clarification of the term
``substantially'' as used in this general condition. One commenter said
that this term results in too high a threshold for the disruption of
aquatic life movement. One commenter stated that aquatic life movement
should be reviewed using hydraulic analyses performed for the range of
flows expected after a basin is fully developed. Another commenter said
that this general condition should require stream crossings to be
constructed with bottom elevations below the normal substrate grade to
avoid creating improper elevations or barriers that may substantially
disrupt aquatic life movements. This commenter also recommended
modifying this general condition to prohibit changes to stream
morphology that could substantially interfere with aquatic life
movements.
In general, activities in waters of the United States authorized by
NWPs are likely to result in some disruption of necessary life cycle
movements of aquatic species, since we are authorizing discharges of
dredged or fill material into those waters or structures or work in
navigable waters of the United States. The word ``substantially''
supports the requirement that NWPs authorize only those activities that
result in minimal individual and cumulative adverse effects on the
aquatic environment, while recognizing that some disruption may occur.
Some disruptions to aquatic life movement are measurable but not
substantial, and may be acceptable during construction or during
natural seasonal events such as floods, winter ice conditions, or
during construction conducted during dry seasons. It is not
practicable, appropriate, or necessary to conduct hydrologic analyses
for each NWP activity that has the potential to disrupt life cycle
movements, based on the projected development for a watershed.
Compliance with this general condition is to be assessed on a case-by-
case basis, through available information or general knowledge of
aquatic life movements. The current language in the general condition,
especially the requirement to install culverts to maintain low flow
conditions, is sufficient to ensure that stream crossings do not
substantially disrupt aquatic life movements. This general condition,
as well as the requirements of general condition 9, Management of Water
Flows, will help ensure that NWP activities result only in minimal
adverse effects to the movement of aquatic life via streams.
The general condition is adopted, with the modification discussed
above
GC 3. Spawning Areas. We proposed to modify this general condition
by removing language describing the general types of activities
authorized by NWPs under sections 10 and 404.
One commenter stated that not enough protection is provided since
avoidance is only necessary to the maximum extent practicable. One
commenter requested a definition of the term ``important spawning
area.'' One commenter said that this general condition should not apply
to NWPs 27 or 48 because shellfish seeding can provide and/or increase
availability of spawning habitat.
The removal of language describing the general applicability of
NWPs will not affect protection of waters of the United States. This
general condition applies to all NWPs. The phrase ``to the maximum
extent practicable'' is necessary since some NWP activities may be
time-sensitive and it is not possible to completely avoid activities in
spawning areas. Since the NWPs authorize activities that have minimal
adverse effects on the aquatic environment, some NWP activities may be
conducted in spawning areas. Identification of important spawning areas
is more appropriately addressed through either the regional
conditioning processes or through the assessment of site-specific
characteristics during the review of pre-construction notifications.
The general condition is adopted as proposed.
[[Page 11155]]
GC 4. Migratory Bird Breeding Areas. We proposed to modify this
general condition to cover migratory birds generally, not just
migratory waterfowl. We also proposed to remove language describing the
general types of activities authorized by NWPs under sections 10 and
404.
One commenter said that the proposed modification would further
restrict the use of the NWPs in wetlands. Another commenter asked how
the change would affect non-waterfowl migratory birds in cases where
their habitat requirements are different than the habitat requirements
of waterfowl. One commenter fully supported the inclusion of migratory
birds but requested a national no-work timing window in breeding areas
from March 1 to July 15 to reduce uncertainty associated with the
phrase ``to the maximum extent practicable.'' Another commenter
indicated that this general condition should prohibit haying or grazing
during the nesting season unless an emergency is declared. One
commenter said that the proposed changes do not comply with the
Migratory Bird Treaty Act and suggested that breeding areas should ``be
avoided to the maximum extent practicable to assure minimal adverse
impact on migratory birds and their breeding areas.'' This commenter
asserted that authorized activities under any NWP must comply with the
Migratory Bird Treaty Act. This commenter also urged expansion of the
general condition to include protection of Important Bird Areas, which
is an initiative by non-governmental entities to protect avian species
of conservation concern. Another commenter said that this general
condition should also state that the take of migratory birds, their
eggs, nests, or parts is not allowed under the Migratory Bird Treaty
Act without a permit.
Aquatic resources provide a diverse variety of breeding habitats
for a wide variety of migratory avian species. The replacement of
``waterfowl'' with ``migratory birds'' will help reduce adverse impacts
to aquatic habitats that are breeding areas of all migratory birds, not
just waterfowl. It is not practicable to identify a uniform window of
4\1/2\ months during which no activities in any habitat potentially
used as breeding areas by migratory birds is allowed. Furthermore,
breeding patterns and seasons vary by region. Time-of-year restrictions
to protect breeding areas are thus more appropriately addressed through
regional conditions imposed by division engineers or special conditions
added to NWP authorizations by district engineers. It would not be
appropriate to amend this general condition to prohibit haying or
grazing during nesting seasons for migratory birds, since the Corps
cannot enforce such a provision.
The applicability of the Migratory Bird Treaty Act is addressed by
Executive Order 13186, ``Responsibilities of Federal Agencies to
Protect Migratory Birds,'' which was issued on January 10, 2001. This
Executive Order does not apply to Department of the Army permits.
Responsibility for complying with requirements of the Migratory Bird
Treaty Act lies with the permittee, but this responsibility is
independent of the Department of the Army permit. The provisions of the
Migratory Bird Treaty Act are implemented by the U.S. Fish and Wildlife
Service through the issuance of take permits under appropriate
circumstances. It would not be appropriate to modify this general
condition to include an explicit reference to Important Bird Areas,
though to the extent that they are encompassed by the phrase,
``waters...that serve as breeding areas for migratory birds,'' they are
already covered. There is no Federal statute or authority for
establishing these areas. We believe the general condition as written
is adequate to protect migratory birds.
The general condition is adopted as proposed.
GC 5. Shellfish Beds. We proposed to remove language describing the
general types of activities authorized by NWPs under sections 10 and
404. We also proposed to add proposed NWP D, Commercial Shellfish
Aquaculture Activities to the exception in this general condition.
One commenter stated that ``areas of concentrated shellfish
populations'' should be defined. One commenter said that the general
condition is too restrictive and should instead provide the district
engineer with discretion to prohibit an activity that may have a
deleterious effect on shellfish.
It would be inappropriate to define the term ``areas of
concentrated shellfish populations'' at the national level. Such
determinations should be made on a case-by-case basis, and take into
account the characteristics of the shellfish species inhabiting the
waters in which the NWP activity is located. Criteria for identifying
areas of concentrated shellfish populations may vary by species and
region. With the exception of NWPs 4 and 48, the NWPs should not
authorize activities in concentrated shellfish beds to ensure that the
activities authorized by NWPs result in minimal adverse effects on the
aquatic environment. However, the district engineer may determine that
this general condition does not apply in situations where a specific
NWP activity will have little or no adverse effect on areas of
concentrated shellfish populations. The reference to NWP D has been
changed to NWP 48, to reflect the number assigned to that new NWP.
This general condition is adopted with the modification discussed
above.
GC 6. Suitable Material. We proposed to modify this general
condition by removing language describing the general types of
activities authorized by NWPs under sections 10 and 404.
One commenter suggested the general condition contain a list of
suitable materials rather than a list of unsuitable materials. One
commenter said that asphalt should be removed from the list of examples
in the general condition because research has shown that cured
asphaltic concrete is inert. One commenter asserted that the general
condition does not go far enough to protect aquatic resources, and
recommended changing the text to prohibit ``unacceptable chemical
pollution'' instead of requiring material to be free of toxic
pollutants in toxic amounts. This commenter also said that the use of
substances such as creosote and pentachlorophenol in open waters should
be prohibited. One commenter suggested that the general condition
contain language that the fill material must be obtained from an upland
source and require it to be sufficiently sized and shaped to resist
erosion for normal and expected high flows.
We do not agree that it is necessary to further define what
constitutes ``suitable material'' for the purposes of this general
condition. It is impractical to provide a comprehensive list of
unsuitable materials. If there are questions concerning the suitability
of a particular material, the permittee should contact the appropriate
Corps district office and ask if that material is considered suitable
for the purposes of this general condition. We continue to believe that
``asphalt'' is an unsuitable material for use in waters of the United
States. Use of substances such as creosote and pentachlorophenol is
prohibited by general condition 6, Suitable Material, if they would be
released into the environment in toxic amounts. It is inappropriate to
limit fill material only to material obtained from uplands, since
material excavated from aquatic environments may also be suitable.
Other general conditions, such as general conditions 12 (Soil Erosion
and Sediment Controls) and 9 (Management of Water Flows) address
[[Page 11156]]
requirements for withstanding water flows.
This general condition is adopted as proposed.
GC 7. Water Supply Intakes. We proposed to modify this general
condition by removing language describing the general types of
activities authorized by NWPs under sections 10 and 404. We also
proposed to add the phrase ``or improvement'' to account for
adjustments of the public water supply intake structure that may be
necessary to maintain or improve levels of service.
One commenter supported the proposed change. One commenter stated
the general condition is overly restrictive and that the standard
should be that activities that are likely to cause an impact to a
public water supply intake should be prohibited. One commenter
requested we define ``proximity.''
This general condition is not too restrictive, given the importance
of water supply intakes for public, commercial and industrial use.
District engineers will determine on a case-by-case basis what is
necessary to comply with this general condition. We believe the term
``proximity'' is flexible enough to allow district engineers to
determine that activities that will not adversely impact a public water
supply intake are not in proximity to the intake. The term
``proximity'' should be defined on a case-by-case basis, after taking
into account site characteristics and the nature of the waterbody and
activity.
This general condition is adopted as proposed.
GC 8. Adverse Effects from Impoundments. We proposed to modify this
general condition by removing language describing the general types of
activities authorized by NWPs under sections 10 and 404.
One commenter recommended amending the language to prohibit the use
of the NWPs in waters accessible to anadromous salmonids.
While the Corps recognizes the importance of protecting aquatic
species, including salmonids, it would not be practicable to prohibit
use of NWPs in all waters accessible to anadromous salmonids.
Restricting or prohibiting the use of NWPs in waters inhabited by
anadromous salmon species is more appropriately addressed through
regional conditions imposed by division engineers, or assertion of
discretionary authority by district engineers.
This general condition is adopted as proposed.
GC 9. Management of Water Flows. We proposed to modify this general
condition by simplifying the language to require that permittees
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.
One commenter supported the proposed modification. One commenter
supported the specific exception for impoundment activities, and two
commenters supported the language that allows stream modifications if
there are positive benefits to aquatic resources, such as for stream
restoration projects. Two commenters supported the language requiring
compliance only to the maximum extent practicable. One commenter said
that the practicability considerations in this general condition should
take into account sound engineering practices and project economics.
The term ``practicable'' is defined in the ``Definitions'' section
of the NWPs. Costs, as well as existing technology and logistics, are
considered when making practicability determinations.
One commenter stated that this general condition should not apply
to ephemeral streams. One commenter said that this general condition
should be modified to prohibit dewatering between October 1 and March
31 to protect hibernating species in the substrate of waterbodies.
Another commenter requested that the general condition retain language
stating that detailed studies or monitoring would not be required to
ensure compliance, and that the Corps would normally defer to local and
state officials on the issue. Another commenter said that this general
condition provides only limited value because it is qualitative and
does not require specific written documentation and assurances
regarding how the requirements are met. One commenter stated the
requirements of this general condition are inappropriate and hazardous
with respect to regulation of stormwater management facilities. One
commenter said that this general condition should require NWP
activities to accommodate the passage of large woody debris and stream
bed load, especially for stream crossing projects.
This requirement must apply to ephemeral streams, because they may
carry substantial flow during storm events. Time-of-year restrictions
on dewatering activities are more appropriately addressed through the
regional conditioning process or through special conditions added to
NWP authorizations by district engineers. We do not believe it is
necessary to retain language stating that detailed studies or
monitoring are not required to ensure compliance with this general
condition, though it is not our intent to require such studies where
compliance can be based on reasonable assumptions about flow. District
engineers will use their judgment to determine whether a particular
activity complies with this general condition. In order to ensure that
this general condition does not unduly restrict the construction and
maintenance of storm water management activities, we have clarified
that it does not apply to activities that have a primary purpose of
managing storm water flows. The issue of maintaining passage of large
woody debris in streams is more appropriately addressed through
regional conditions, in areas where changes to the movement of large
woody debris may result in more than minimal adverse effects on the
aquatic environment. Compliance with the requirements of this general
condition will generally accommodate the movement of bed load along a
stream channel.
This general condition is adopted as proposed.
GC 10. Fills Within 100-Year Floodplains. We proposed to modify
this general condition by simply requiring permittees to comply with
applicable state or local floodplain management requirements that have
been approved by the Federal Emergency Management Agency (FEMA).
Several commenters supported the general condition. One commenter
said that the proposed change may cause a slight increase in case-by-
case review and assertion of discretionary authority. This commenter
also requested that the Corps provide guidance to assure consistent
implementation of this general condition. A number of commenters stated
that local governments are better able to implement the FEMA program.
Two commenters favored the proposed change because it avoids
duplication with other regulatory agencies, and another commenter
stated that it is a simple and straightforward requirement. One
commenter said that the general condition will create an incentive to
design projects that reduce impacts to waters of the United States to
qualify for an expedited NWP authorization.
We do not agree that this general condition will increase case-by-
case reviews and the number of times discretionary authority is
exercised. The version of this general condition that was adopted in
2002 prohibited the use of NWPs 39, 40, 42, and 44 to authorize
[[Page 11157]]
permanent, above-grade fills in waters of the United States within
mapped floodways. Those activities required authorization by regional
general permits or individual permits. The general condition adopted
today allows those activities to be authorized by NWP, provided the
activities comply with applicable state and local floodplain management
requirements and the district engineer determines, after reviewing the
pre-construction notification, that the individual and cumulative
adverse effects on the aquatic environment and other public interest
review factors are minimal. We continue to support efforts that reduce
duplication with other agencies.
Many commenters objected to the general condition and requested
that the Corps retain the previous floodplain prohibitions for NWPs 39,
40, 42 and 44. They said that the Corps has an independent obligation
and role in protecting waters of the United States. One commenter
stated no fills should be permitted within the 100-year floodplain in
specific watersheds. One commenter said that employing the use of
discretionary authority on a case-by-case basis will produce
uncertainty for prospective permittees.
We do not believe it is appropriate to use the Section 404 program
to restrict activities in flood plains over and above the requirements
of FEMA-approved state and local floodplain management programs, except
in specific cases where the district engineer determines that an
activity would result in more than minimal adverse effects. This
general condition, in conjunction with reviews of pre-construction
notifications, will provide sufficient protection to floodplain values
that is appropriate to the scope of the Corps regulatory authorities
and implementing regulations. This general condition will also support
the application of FEMA-approved state or local floodplain management
requirements that are established to reduce flood hazards. Restricting
or prohibiting development of 100-year floodplains is more
appropriately addressed through the land use planning and zoning
authorities granted to state and local governments. The Corps considers
impacts to floodplains and flood hazards during its review of pre-
construction notifications. If the proposed activity will result in
more than minimal adverse effects to floodplains or increases in flood
hazards, the district engineer will exercise discretionary authority
and require an individual permit for the proposed activity.
We disagree that the pre-construction notification review process
will produce more uncertainty for permittees. If the proposed work will
have minimal adverse effects on the aquatic environment and other
public interest review factors, such as floodplain values and flood
hazards, the activity can be authorized by the applicable NWP. One
benefit of the modified general condition is that it applies to all NWP
activities, not just NWPs 39, 40, 42, and 44.
One commenter indicated that FEMA regulations are only designed to
assure development is reasonably safe from flooding not to protect the
quality and quantity of downstream waterways or the aquatic resources
associated with the floodplain and downstream water segments. Two
commenters stated that floodplain managers will not receive pre-
construction notifications and therefore they will not be aware of
floodplain development activities because they will no longer receive
public notices for these individual permits. Two commenters said that
the National Flood Insurance Program standards are insufficient to
minimize flood hazard and floodplain impacts. One commenter argued that
the Corps should strengthen and not weaken the floodplain protections
that are outlined in 33 CFR 320.4(l)(2) and Executive Order 11988,
Floodplain Management. One commenter concluded that the NWPs will have
more than minimal impacts because of the proposed modification of this
general condition.
When reviewing pre-construction notifications, district engineers
will assess adverse effects to the aquatic environment, including
impacts to aquatic resources located within 100-year floodplains and
downstream waterways. General condition 9 requires permittees, to
maintain to the maximum extent practicable, the pre-construction
course, condition, capacity, and location of open waters. State water
quality certifications ensure that NWPs do not authorize activities
that degrade downstream water quality. Floodplain development
activities are already thoroughly reviewed by state and local
governments under their planning and zoning authorities, especially in
those floodplains that consist mostly of uplands, where development is
more likely to occur. The Federal Emergency Management Agency is
designated through E.O. 11988 as the lead Federal agency for floodplain
management, and we are deferring to their program requirements for
floodplain management. The proposed modification of this general
condition complies with 33 CFR 320.4(l)(2). The modification of this
general condition will not cause the NWP program to result in more than
minimal individual and cumulative adverse environmental effects.
One commenter said that this general condition should be modified
to require documentation of compliance with FEMA minimum standards by a
licensed professional engineer, and require consultation with resource
agencies. One commenter suggested modifying this general condition to
require prospective permittees to demonstrate they have applied the
National Environmental Policy Act process and to justify ``no
reasonable option'' exists before filling within the base floodplain.
One commenter noted that not all floodplains have been mapped and as
such they do not fall under authority of a local government. Two
commenters requested clarification on how the general condition will be
applied when a 100-year floodplain is identified by an engineering
study but FEMA approved management requirements are absent.
Requiring documentation of compliance with FEMA-approved standards
is unnecessary for the purposes of the NWPs, because such requirements
are more appropriately addressed through state and local construction
authorizations. If a separate National Environmental Policy Act process
is applicable for a particular development activity, then the lead
Federal agency will conduct that process. For the purposes of the NWPs,
compliance with the National Environmental Policy Act is achieved
through the decision documents issued for each NWP. This general
condition does not apply to 100-year floodplains where FEMA-approved
state or local floodplain management requirements have not been
established. In general, such floodplains have not been mapped. In such
areas, district engineers will review pre-construction notifications
and assess the adverse effects on floodplains and flood hazards to the
extent practicable, and add special conditions as appropriate.
Two commenters requested clarification of the mechanism and
documentation necessary to complete the public interest evaluation. One
commenter asked if this process is expected to increase the amount of
time needed to complete the review of a pre-construction notification.
The general condition simply requires permittees to comply with
applicable FEMA-approved state or local floodplain management
requirements. It does not require separate documentation to be provided
to the
[[Page 11158]]
district engineer with a pre-construction notification. The
modification of this general condition is not expected to cause an
increase in the amount of time to prepare or review a pre-construction
notification.
This general condition is adopted as proposed.
GC 11. Equipment. We proposed to modify the general condition to
include mudflats, in addition to wetlands.
One commenter suggested changing this general condition to require
heavy equipment to provide low ground pressure, to further minimize
soil disturbance.
We do not agree that this change is necessary, because the general
condition states that other measures can be used to minimize soil
disturbance. This general condition is adopted as proposed.
GC 12. Soil Erosion and Sediment Controls. We did not propose any
changes to this general condition.
One commenter expressed support for this general condition, stating
that it provides sufficient flexibility to address emergency
situations, public safety or infrastructure repairs, or situations
where it is necessary to work in higher water conditions in order to
adjust restoration design to meet on-site hydrologic and fluvial
geomorphic conditions. One commenter said that the term ``low-flow'' is
not adequately defined, and therefore it provides inadequate protection
of the aquatic environment. One commenter suggested modifying this
general condition to require permittees to follow state and/or local
storm water sediment control requirements.
Determinations of low-flow conditions will be made by district
engineers on a case-by-case basis. We believe the condition provides
sufficient protection for the aquatic environment. Appropriate soil
erosion and sediment control measures may be established by different
levels of government or different agencies, so it would be more
effective to retain the present language. Such requirements are
independently applicable in any case.
This general condition is adopted as proposed.
GC 13. Removal of Temporary Fills. We proposed to modify this
general condition by replacing the phrase ``their preexisting
elevation'' with ``pre-construction conditions.''
One commenter supported the proposed change. Four commenters
objected to the proposed change, stating that the language implies that
the site needs to be revegetated or mitigated. One commenter suggested
defining ``temporary'' as less than six months. One commenter
recommended modifying the text of this general condition to recommend
removal of temporary fills during dewatered or low-flow conditions.
Another commenter said that this general condition should require
filled areas to be restored, as much as possible, to the same
elevation, contours, grade, substrate, vegetative composition,
hydrology, and/or geomorphology.
We agree that the proposed modification can be difficult to
implement and enforce. For example, the proposed language implies that
to return an area inhabited by trees to its pre-construction
conditions, trees would have to be planted. Therefore, we have changed
the phrase ``pre-construction conditions'' to ``pre-construction
elevations'' to require that the permittee return the affected area to
its previous elevations. We have also added a new sentence that
requires the permittee to revegetate the affected area, as appropriate.
A temporarily filled area that was previously vegetated must be planted
with appropriate plant materials and allowed to grow back after the
temporary fill is removed and the pre-construction elevations restored.
In some cases, such as stream channels, it may be sufficient to simply
remove temporary fills to satisfy this general condition.
The general condition is adopted with the modifications discussed
above.
GC 14. Proper Maintenance. We did not propose any changes to this
general condition.
One commenter stated the Corps should require that a new stream
crossing be constructed when a crossing requires two or more debris
removal requests within 10 years. One commenter said that the general
condition should be modified to require maintenance as necessary to
ensure minimal impacts and public safety. One commenter stated that
long-term maintenance of structures and/or fills should be evaluated
during the permit process and authorized in the permit authorizing
construction.
We disagree with these suggested changes. We cannot condition the
NWPs to require a permittee to install a new stream crossing if debris
accumulates at a certain frequency. Activities authorized by NWPs must
already result in minimal adverse effects on the aquatic environment,
and it is not necessary to add such a requirement to this general
condition. Maintenance of authorized activities may be conducted either
under the Clean Water Act exemption at Section 404(f)(1)(B) or under
NWPs 3, 31, or 35.
The general condition is adopted as proposed.
GC 15. Wild and Scenic Rivers. We did not propose any changes to
this general condition.
One commenter recommended expanding the prohibition to state wild
and scenic and recreational river systems, and to any activities in
rivers subject to the review of the National Park Service. One
commenter expressed support for the general condition and recommended
it be modified to require that the Federal agency with direct
management responsibility for the river be contacted regarding the
proposed use of an NWP and that the Corps receive a written statement
from that agency regarding the effects the activity will have on the
river.
State wild and scenic rivers are more appropriately addressed
through state laws, regulations, and programs. The general condition
contains language requiring the appropriate Federal agency with direct
management responsibility for the river to determine in writing that
the proposed activity will not adversely affect that river's
designation. The Corps will not issue an NWP verification for an
activity in a National Wild and Scenic River without the appropriate
documentation.
This general condition is adopted without change.
GC 16. Tribal Rights. We did not propose any changes to this
general condition. One commenter asked how the Corps will determine
whether tribal rights are impacted, and if a tribal right is impaired.
We cannot define a specific threshold to be used to determine
compliance with this general condition. District engineers make these
determinations on a case-by-case basis, through appropriate
consultations with Indian tribes.
This general condition is adopted without change.
GC 17. Endangered Species. We proposed to modify this general
condition by stating that no activity is authorized by NWP, if it ``may
affect'' a listed species or critical habitat unless Section 7
consultation has been completed. We also proposed to state that
district engineers will make ``may affect'' or ``no effect''
determinations and notify prospective permittees within 45 days of
receipt of a complete pre-construction notification.
Several commenters supported the proposed modifications of this
general condition. One commenter recommended specifying the
documentation that should be submitted with the pre-construction
notification in circumstances when no listed species or
[[Page 11159]]
critical habitat will be affected. Two commenters requested that the 45
day time limit for notifying applicants of an effect determination be
reduced to 30 days. One commenter requested clarification on whether
the Corps has 45 days from submittal of the pre-construction
notification or 45 days from receipt of a complete application, to
notify the applicant of a ``may effect'' determination, and whether
this will result in extra time to complete an NWP.
This general condition specifies that permittees shall notify the
Corps if any listed species or critical habitat might be affected or is
in the vicinity of the project. If this does not apply, no additional
information is required to be submitted. We believe that 45 days is a
reasonable and practical deadline, and it is consistent with the pre-
construction notification time frame. The general condition states that
the Corps will notify the applicant within 45 days of receipt of a
complete pre-construction notification. However, if the applicant has
provided notification to the Corps of possible effects on listed
species or critical habitat, the applicant must wait for a Corps
determination of either ``may affect'' or ``no effect'', even if this
takes more than 45 days.
Several commenters expressed concern that requirement for Section 7
consultation in the absence of a ``no effect'' determination would
delay processing of pre-construction notifications, and that the
requirement to wait for the Corps ``no effect'' determination increases
the administrative burden and uncertainty for applicants. Several
commenters recommended that, if an applicant does not hear from the
Corps within 45 days, the applicant may treat the lack of response as a
``no effect'' determination and proceed with the NWP activity. Other
commenters stated that the open-ended period for the Corps to resolve
concerns about species could result in NWPs taking much longer to issue
than 45 days.
The 45-day period is necessary to allow district engineers to
review proposed NWP activities that require notification because
federally-listed species or critical habitat might be affected or are
in the vicinity of the project (see 33 CFR 330.4(f)(2)). During that 45
day period, the district engineer will determine if the proposed
project will have ``no effect'' or ``may affect'' listed species or
critical habitat. If the proposed activity may affect listed species or
critical habitat, the prospective permittee cannot begin the activity
until the Endangered Species Act requirements have been satisfied, even
if 45 days have passed since the district received a complete pre-
construction notification. Many ``no effect'' determinations do not
take the full 45 days. We acknowledge that some NWP verification
requests may take longer than 45 days, but the Corps is legally
obligated to comply with the Endangered Species Act. The ESA requires
Section 7 consultation for any activity authorized by a Federal agency
unless that agency determines that the activity will have ``no effect''
on listed species. In cases where the permittee has determined that no
listed species or critical habitat are in the vicinity of the project
or might be affected by it, and thus has not notified the Corps of any
possible effects, then (but only in such cases) the permittee does not
have to wait for further confirmation of ESA compliance from the Corps.
One commenter stated that the wording in the general condition
differs from that in the Endangered Species Act and in the existing
NWPs, as it applies the standard of ``may affect'' rather than
``takings'' of listed species. In addition, without clear guidance, the
``may effect'' standard is likely to be applied inconsistently from
district to district.
Section 7 of the Endangered Species Act states that Federal
agencies must consult with the U.S. Fish and Wildlife Service or the
National Marine Fisheries Service if an activity ``may affect'' listed
species or habitat. This language is virtually the same as that in the
2002 NWPs, including the requirement that a permittee cannot begin work
until notified by the Corps if the project might affect a listed
species or critical habitat.
One commenter recommended clarification of the terms ``might be
affected'' and ``may affect''.
As stated in the text of the general condition, the district
engineer determines if an activity ``may affect'' listed species or
critical habitat. A non-federal permittee must notify the district
engineer if listed species or critical habitat might be affected, so
the district engineer can determine if the activity ``may affect'' the
habitat or species. We have modified the second sentence of paragraph
(b) of this general condition by changing the word ``may'' to ``might''
in order to clearly distinguish the formal determination by the Corps
(``may affect'' or ``no effect'') from the requirement on the applicant
to notify the Corps where there is sufficient cause for concern to
warrant a formal determination. This requirement applies if habitat or
species is in the vicinity of the project or might be affected by it,
or if the project is located in the habitat.
One commenter recommended modifying this general condition to
exempt activities that occur in the vicinity of free-swimming species
from the pre-construction notification requirement, provided the
activities include reasonable efforts to avoid physical contact with
listed species.
Any time a proposed NWP activity has the potential to affect listed
species or critical habitat, the Corps must evaluate it and make a ``no
effect'' or ``may affect'' determination. This requirement cannot be
waived for free-swimming species, although efforts taken to avoid
physical contact with listed species might result in a determination
that the activity will have ``no effect'' on that species. Even in the
case of a ``may effect'' determination, such efforts may help to
expedite Section 7 consultation with the Services.
One commenter suggested clarifying that the work or activities that
are prohibited from commencing until the Corps has provided
notification of compliance with the Endangered Species Act only refers
to work in waters of the United States, not upland areas. Several
commenters stated that language requiring applicants to notify the
Corps if listed species or habitat is in the ``vicinity'' of the
activity creates uncertainty and should be eliminated.
District engineers must evaluate effects on listed species or
habitat of any activity that is within the Corps' scope of analysis
under the Endangered Species Act. This might include some areas outside
of waters of the United States. However, it is correct that a Section
404 permit is only required for discharges of dredged or fill material
into waters of the United States. The Corps has no authority to
prohibit activities that do not involve such discharges. However, an
activity in an upland area that adversely affects a listed species may
make it more difficult for the Corps to later determine that an
associated discharge of dredged or fill material into waters of the
United States has ``no effect'' and/or may complicate any Section 7
consultation that is subsequently required. While defining the
``vicinity'' of an activity might be difficult, the Corps believes it
must retain the ability to evaluate the effects of projects on species
that are nearby, mobile, or otherwise could be affected. Defining the
appropriate vicinity will also depend on the natural history of the
particular species. If there is any doubt, permittees should contact
the Corps or the local office of the USFWS or NMFS for guidance.
A couple of commenters stated that, as the U.S. Fish and Wildlife
Service is
[[Page 11160]]
allowed to comment on coal mine permit applications during the Surface
Mining Control and Reclamation Act (SMCRA) process, there is no need
for consultation associated with Corps permits for coal mining.
Section 7(a)(2) of the Endangered Species Act requires Federal
agencies to consult with the Services to ensure that they are not
undertaking, funding, permitting, or authorizing actions likely to
jeopardize the continued existence of listed species or destroy or
adversely modify designated critical habitat. This responsibility
cannot be waived, unless another Federal agency is the lead agency for
the project and conducts the required consultation. In cases where
SMCRA is administered by a state agency, the Corps is required to
conduct the necessary Federal consultation. Information obtained during
other environmental reviews, including any comments made by the
Services during the SMCRA process, is used by the Corps in evaluating
the NWP.
One commenter stated that neither applicants nor the Corps are
adequately trained to make endangered species determinations and
therefore the Corps should institute formal consultation for each
proposed NWP activity. In addition, pre-construction notification
thresholds should be eliminated or reduced so that applicants are not
put in the position of deciding whether or not their project has
impacts on protected species.
Section 7 consultation is a cooperative effort involving affected
parties engaged in analyzing effects posed by proposed actions on
listed species or critical habitat(s). Many NWP activities result in
``no effect'' to listed species or critical habitat, so it is not
necessary to conduct formal consultation for each NWP activity. The
determination of jeopardy/no jeopardy is based on a careful analysis of
the best available scientific and commercial data. The Corps is
engaging with the Services on programmatic Section 7 consultation for
the NWPs, but project-specific evaluations and consultation are still
required to ensure that permitted activities do not jeopardize the
continued existence of a listed species or critical habitat. The pre-
construction notification thresholds for NWPs provide a balance between
efficient authorization of activities that have minimal adverse
environmental impact, and environmental protection, including
protection of listed species and critical habitat. The requirement for
prospective permittees to notify the district engineer if a listed
species or critical habitat might be affected or is in the vicinity of
the project provides a relatively low bar for notification to the Corps
of potential effects, while not bogging down the NWP process in cases
where the applicant has performed due diligence and determined that
there are no listed species or critical habitat in the vicinity of the
project.
One commenter recommended that the general condition specify that
the U.S. Fish and Wildlife Service or National Marine Fisheries Service
has to make jeopardy determinations and that the Corps will initiate
any required Section 7 consultation within 45 days of receiving a
complete pre-construction notification.
We do not agree that it is necessary to modify this general
condition to state that the U.S. Fish and Wildlife Service or National
Marine Fisheries Service will make jeopardy determinations. Those
determinations will be made when they issue biological opinions in
response to a request for Section 7 consultation. The purpose of this
general condition is to ensure compliance with the requirements of the
Endangered Species Act, and to provide timely notification to
prospective permittees, so that they do not begin work until the
requirements of Section 7 have been fulfilled.
One commenter recommended that the prohibition on activities that
adversely affect federally listed species should also apply to official
state-listed endangered or threatened species.
The Endangered Species Act only applies to Federally-listed
species. States may impose their own restrictions or prohibitions on
activities that affect state-listed species.
One commenter suggested adding the word ``negatively'' to the
second sentence of paragraph (a), to limit it to those activities that
may negatively affect listed species or critical habitat. One commenter
stated that this general condition should not apply to shellfish
seeding activities authorized by NWPs 27 or 48, since traditional
shellfish seeding activities do not negatively affect listed species or
their habitat.
The term ``may affect'' comes from the ESA and is the statutory
criterion for determining when Section 7 consultation is required.
Changing this language to only apply to negative effects would not be
consistent with the Corps' responsibilities under the Endangered
Species Act. The general condition applies to all NWPs, to the extent
that they have the potential to affect listed species or critical
habitat. If an activity would not have an affect on listed species, no
Section 7 consultation is required. The notification requirements in
this general condition facilitate the Corps' compliance with its
Section 7 obligations.
One commenter stated that many activities eligible for NWPs are
covered under programmatic Section 7 consultations. Therefore, it
should be clarified that if a project falls within the scope of a
program that has been reviewed and approved under Section 7
consultation, then individual consultation is not required. One
commenter recommended modifying this general condition to clarify the
responsibilities of Federal permittees that use the NWPs.
If Section 7 consultation has been completed for an activity,
either programmatically or individually, the activity can be authorized
under NWPs. This is implied in the statement that ``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.'' We do not believe
additional clarification is necessary. When submitting a pre-
construction notification for an activity that may affect a listed
species, the applicant should indicate if Section 7 consultation has
already been conducted, the Federal agency conducting the consultation,
and the outcome of the consultation.
We have added a new paragraph to this general condition (paragraph
(b)), to clarify that Federal agencies are to follow their own
procedures for complying with the requirements of the Endangered
Species Act, which is consistent with 33 CFR 330.4(f)(1). This
paragraph also requires Federal permittees to provide appropriate
documentation to the district engineer to demonstrate compliance with
those requirements.
This general condition is adopted, with the modifications discussed
above.
GC 18. Historic Properties. We proposed to modify this general
condition by removing the reference to Appendix C of 33 CFR part 325
and stating that the district engineer will comply with the current
procedures for addressing the requirements of Section 106 of the
National Historic Preservation Act. We also proposed to modify the
general condition to state that district engineers will notify
prospective permittees within 45 days of receipt of a complete pre-
construction notification whether section 106 consultation is required.
One commenter agreed with the 45-day timeline for a Corps response.
One commenter stated that the general condition should specify what
documentation should be submitted with the pre-construction
notification.
[[Page 11161]]
One commenter stated that it should be the applicant's responsibility,
not the Corps', to find out if section 106 consultation is required.
The general condition states that, for activities that may have the
potential to cause an effect on listed, eligible, or potentially
eligible properties, the pre-construction notification must state which
historic properties may be affected by the proposed work or include a
map indicating the location of the project and the location of the
historic properties. The Corps is responsible for making determinations
and findings for the purposes of section 106. We have modified
paragraph (a) of this general condition to clarify that NWP activities
are not authorized until the requirements of section 106 have been
satisfied, in cases where the district engineer determines that the NWP
activity has the potential to cause an effect on a historic property.
If the applicant has provided notification to the Corps of possible
effects on historic properties the applicant must wait for a Corps
determination of either ``potential to cause effects'' or ``no
potential to cause effects'' even if this takes longer than 45 days.
Several commenters expressed concerns about the delay in NWP
authorization resulting from the 45-day requirement and suggested that
authorization be automatically granted if the Corps does not notify the
applicant within 45 days.
The 45 day period is necessary to allow district engineers to
adequately review those activities that may affect eligible properties.
During that 45 day period, the district engineer will determine if the
proposed project has the potential to cause effects on historic
properties. If so, the prospective permittee cannot begin the activity
until section 106 consultation has been completed, even if 45 days has
passed since the district received a complete pre-construction
notification (see 33 CFR 330.4(g)(2)). However, many determinations do
not take the full 45 days. The Corps cannot waive section 106
compliance by allowing the applicant to assume ``no potential to cause
effects'' if the Corps has not been able to respond within 45 days.
Therefore, this provision has not been changed. In cases where the
permittee has determined there are no historic properties for which the
activity has the potential to cause effects, and has thus not notified
the Corps of such properties (but only in such cases) the permittee
does not have to wait for further confirmation of NHPA compliance from
the Corps.
One commenter stated that the Corps should eliminate the language
that requires an applicant to notify the Corps if an activity may
affect any property which the ``prospective permittee has reason to
believe may be eligible for listing,'' as the Corps is required only to
take into account the effect of an undertaking on property that is
included in or eligible for inclusion in the National Register. Two
commenters recommended modifying this general condition to require a
preliminary survey of the project area for the purposes of section 106
compliance.
The purpose of the notification requirement in this general
condition is to provide the district engineer with the opportunity to
consider effects to historic properties, in cases where pre-
construction notification is not required by the NWP itself. Since the
definition of ``historic property'' includes properties that are
eligible for listing in the National Register of Historic Places, and
the Federal agencies are required to carry out appropriate
identification efforts, we believe that the concept in the proposed
general condition is appropriate. We have modified this paragraph to
provide further clarification of the role of the non-Federal permittee,
and have added a sentence that states that district engineers are
responsible for making final effect determinations. The notification
requirement helps the Corps carry out those identification efforts. We
have included a sentence in paragraph (c) to clarify that district
engineers are to make reasonable and good faith efforts to identify
historic properties when reviewing proposed NWP activities. We do not
believe it is necessary to require a preliminary survey of the project
area with the pre-construction notification. District engineers will
review available information to determine if further investigations are
warranted for section 106 compliance.
One commenter recommended that programmatic consultation and
agreements should be allowed for section 106. One commenter stated that
the Corps should initiate programmatic consultation on each NWP before
reissuing them.
Programmatic agreements conducted in accordance with 36 CFR
800.14(b), meet the requirements of this general condition. We do not
believe programmatic consultation on each NWP in advance is necessary
or practical. Consultation will be conducted as appropriate for all
activities that may affect historic properties listed on, eligible, or
potentially eligible for listing in the National Register of Historic
Places.
One commenter suggested clarifying that the work or activities that
are prohibited from commencing until the Corps has provided
notification of compliance with section 106 only refers to work in
waters of the United States, not upland areas outside of this area. One
commenter stated that this general condition shifts the burden of
determining ``no effect'' on historic properties from applicants and
the Corps to other agencies, which could delay authorization. One
commenter recommended modifying this general condition to clarify the
responsibilities of Federal permittees that use the NWPs.
District engineers must evaluate effects on eligible historic
properties that are within the Corps' scope of analysis under section
106. This might include some areas outside of waters of the United
States. However, it is correct that a Section 404 permit is only
required for discharges of dredged or fill material into waters of the
United States. The Corps has no authority to prohibit activities that
do not involve such discharges. However, an activity in an upland area
that adversely affects a historic property may make it more difficult
for the Corps to later determine that a Section 106 consultation is not
required for an associated discharge of dredged or fill material into
waters of the United States, and/or may complicate any Section 106
consultation that is subsequently required. The district engineer is
responsible for making determinations and findings under section 106.
This process has not changed. We have added a new paragraph (b) to this
general condition, which states that Federal permittees should follow
their own procedures for complying with the requirements of section
106.
One commenter expressed concerns that the general condition lacks
clarity about who is responsible for identification and evaluation of
historic properties and determination of effects, how such
identification will be accomplished, and the nature of consultation
required. This commenter suggested revised wording for the general
condition and recommended that the Corps include a definition for
historic properties. We agree that the wording proposed by this
commenter clarifies responsibilities and procedures and have revised
the general condition accordingly. We have also added a definition for
historic property in the ``Definitions'' section for the NWPs.
This commenter also noted that the Corps'' historic properties
regulations
[[Page 11162]]
are not consistent with Advisory Council on Historic Preservation's
regulations at 36 CFR part 800 and are not approved by the Council. As
noted by the commenter, the Corps and the Council are currently
involved in discussions to resolve the differences between the Corps'
procedures and the Council's regulations at 36 CFR part 800. Pending
the outcome of those discussions, the reference in this general
condition to the Corps current procedures means the Corps ``Revised
Interim Guidance for Implementing Appendix C of 33 CFR Part 325 with
the Revised Advisory Council on Historic Preservation's Regulations at
36 CFR Part 800'' dated April 25, 2005.
The use of the interim guidance, as well as the Corps Regulatory
Program procedures for the protection of historic properties at
Appendix C of 33 CFR Part 325, are provisional measures to comply with
the requirements of Section 106 of the National Historic Preservation
Act until updated alternative procedures that are tailored to the Corps
Regulatory Program can be promulgated through the appropriate
processes.
This general condition is adopted with the modifications discussed
above.
GC 19. Designated Critical Resource Waters. We proposed to modify
this general condition to eliminate provisions that duplicate the
requirements of other general conditions.
One commenter recommended adding proposed NWPs E and F to paragraph
(a) of this general condition, to prohibit the use of those permits to
authorize discharges of dredged or fill material in waters of the
United States for activities in, or directly affecting, critical
resource waters.
We have modified paragraph (a) of this general condition to include
NWPs E and F (now designated as NWPs 49 and 50), since those activities
have the potential to result in more than minimal adverse effects to
designated critical resource waters and their adjacent wetlands. These
mining activities may be authorized by individual permits or regional
general permits in these waters.
One commenter stated that the Corps should not prohibit the use of
an NWP in critical resource waters if the agency managing those
critical resource waters approves those activities. This commenter
recommended requiring pre-construction notification for all activities
in critical resource waters and conducting coordination with the
managing agency. Another commenter stated that limiting the use of NWPs
in designated critical resource waters should be done through regional
conditions and coordination with state and local agencies and resource
agencies, instead of a general condition.
Paragraph (a) of this general condition lists those NWPs that have
a greater potential to result in more than minimal adverse effects on
the aquatic environment, if they involve discharges of dredged or fill
material into those designated critical resource waters, or their
adjacent wetlands. Therefore, it would be more appropriate to review
those activities through the individual permit process, with agency
coordination, or authorize those activities through regional general
permits. The designated critical resource waters listed in this general
condition are generally considered to be important to the national
public interest. Proposed activities involving discharges of dredged or
fill material into those waters and their adjacent wetlands warrant
more thorough review, through either the pre-construction notification
process or other forms of Department of the Army authorization, such as
individual permits.
One commenter suggested that in order to provide consistency with
state definitions, a definition for ``natural heritage sites'' should
be included in the text of this general condition.
Natural heritage sites are defined and designated by state
agencies. The criteria and processes for designating state natural
heritage sites vary from state to state. District engineers will
utilize the appropriate state designations when implementing this
general condition. Therefore, we do not believe that it is appropriate
to provide a definition of state natural heritage sites at the national
level.
One commenter suggested that source waters used for drinking water
or ground water recharge should be included in the definition of
critical resource water. The same commenter suggested that there should
be no provision for the use of discretionary authority regarding
discharges of dredged or fill material into designated critical waters.
Concerns regarding impacts to sources for drinking water and ground
water recharge are more appropriately addressed through regional
conditioning of the NWPs or review of pre-construction notifications
for specific and identified waters. Division engineers can regionally
condition the NWPs to prohibit or limit their use in such high value
waters. District engineers will exercise discretionary authority and
require individual permits for activities proposed in high value waters
that will result in more than minimal adverse effects on the aquatic
environment.
One commenter said that critical resource waters should include the
following areas: watersheds of nationally-designated wild and scenic
rivers, waters within wilderness areas, national parks and wildlife
refuges, and all waters with similar state designations. Another
commenter recommended adding waters designated as National Monuments
and National Historic Sites to the categories of waters in this general
condition. This commenter also said that vernal pools, bogs and fens,
native wet prairie, forested wetlands, eelgrass beds, and coral reefs
should also be considered as designated critical resource waters
subject to this general condition.
The use of NWPs in components of the National Wild and Scenic River
System or designated study rivers is addressed by general condition 15,
Wild and Scenic Rivers. Restricting or prohibiting the use of NWPs in
waters of the United States within wilderness areas, national parks,
national monuments, national historic sites, national wildlife refuges,
or state-designated wilderness, parks, or refuges, is more
appropriately addressed through the regional conditioning process. In
areas where vernal pools, bogs and fens, native wet prairie, forested
wetlands, eelgrass beds, and coral reefs warrant greater levels of
protection, division engineers may impose regional conditions on NWPs
to restrict or prohibit their use in those waters. Division engineers
will determine whether regional conditions are necessary to ensure that
the NWPs authorize only activities resulting in minimal individual and
cumulative adverse effects on the aquatic environment in those areas.
This general condition is adopted with the modification discussed
above.
GC 20. Mitigation. We proposed several modifications to this
general condition, such as requiring compensatory mitigation for NWP
activities that require a pre-construction notification and result in
the loss of greater than \1/10\ acre of wetlands. We also proposed to
add a provision stating that compensatory mitigation may be required
for activities that result in permanent adverse effects to certain
aquatic resource functions and services.
Several commenters requested clarification as to whether
compensatory mitigation is required only for permanent losses of waters
of the United States, or whether it is also required for temporary
impacts to those waters. A commenter asked if compensatory mitigation
for stream bed
[[Page 11163]]
impacts should be quantified as linear feet or acres. A couple of
commenters said that district engineers should be able to require
compensatory mitigation for losses of other types of waters of the
United States, such as streams. One commenter expressed support for
watershed-based compensatory mitigation. One commenter said that it was
unclear how the proposed compensatory mitigation rule published in the
March 28, 2006, issue of the Federal Register (71 FR 15520) would apply
to the NWP program. One commenter said that preservation should not be
used as compensatory mitigation.
Compensatory mitigation is required only for permanent losses of
waters of the United States, or for permanent adverse effects to
aquatic resource functions (such as those described in paragraph (h) of
this general condition). The restoration of waters of the United States
where there were temporary fills and other impacts during the
construction activity is not considered compensatory mitigation. Those
actions are addressed by general condition 13. The unit of measure used
to quantify stream bed impacts and compensatory mitigation is at the
discretion of the district engineer. Compensatory mitigation may be
required for losses of streams and other types of waters of the United
States, to ensure that the NWP activity results in minimal individual
and cumulative adverse effects on the aquatic environment. To clarify
this concept, we have added a new paragraph (d) to this general
condition, which states that the district engineer may require
compensatory mitigation for losses of streams and other waters of the
United States. When a final compensatory mitigation rule becomes
effective, it will apply to all types of Department of the Army
permits, including the NWPs. We are in the process of reviewing
comments on the proposed rule and developing the final rule, in
cooperation with the Environmental Protection Agency. Preservation of
aquatic resources is an important form of compensatory mitigation which
is appropriate in some cases to protect and maintain aquatic resource
functions and services in the watershed. All compensatory mitigation
should be determined, to the extent practicable, using a watershed
approach that considers watershed needs holistically and identifies
locations and types of compensatory mitigation that will be most
beneficial to the watershed.
Two commenters said that prospective permittees should be required
to submit statements with NWP pre-construction notifications that
explain how avoidance and minimization of losses of waters of the
United States was achieved. They said that this statement would assist
district engineers in determining if avoidance and minimization has
been achieved to the maximum extent practicable. One commenter objected
to including temporary adverse effects in the language in paragraph (a)
of this general condition, stating that it is contrary to the
definition of ``loss of waters of the United States'' which refers only
to permanent losses. Another commenter said that compensatory
mitigation should be considered only after avoidance and minimization
has occurred.
We do not agree that it is necessary to require an avoidance and
minimization statement with pre-construction notifications to evaluate
whether avoidance and minimization has been achieved to the maximum
extent practicable on the project site. The information required for a
complete pre-construction notification, including any plans submitted
with the pre-construction notification, is sufficient for district
engineers to determine compliance with this general condition. We
believe the minimization of temporary impacts to waters of the United
States is important for ensuring that NWP activities result in minimal
adverse effects on the aquatic environment, even though those impacts
do not result in permanent losses and generally do not require
compensatory mitigation. The requirements of this general condition
support the mitigation sequence of avoidance, minimization, and
compensation. Compensatory mitigation requirements are determined after
considering compliance with the avoidance and minimization provisions
of this general condition.
Several commenters expressed support for the \1/10\ acre threshold
for requiring compensatory mitigation for wetland losses that require
pre-construction notification. A number of commenters said that
compensatory mitigation should be required for all wetland losses,
because of the potential cumulative impacts resulting from many small
wetland losses. Several commenters asserted that there are enough
mitigation banks and in-lieu fee programs throughout the country to
require compensatory mitigation for wetland losses of less than \1/10\
acre. Two commenters recommended changing the compensatory mitigation
threshold to \1/4\ acre, and one commenter reasoned that the threshold
should be higher because the NWP program already meets the ``no overall
net loss'' goal for wetlands. Two commenters said that there should not
be a mandatory compensatory mitigation requirement for the NWPs.
Compensatory mitigation should be required only when necessary to
ensure minimal adverse effects.
We are retaining the \1/10\ acre compensatory mitigation threshold
for wetland losses, with the provision allowing district engineers to
waive this requirement on a case-by-case basis if the activity results
in minimal adverse effects on the aquatic environment. This will help
ensure that we continue to achieve the ``no overall net loss'' goal
while providing appropriate flexibility and transparency to the
wetlands compensatory mitigation requirements for the NWPs. We do not
believe it is appropriate or practicable to require compensatory
mitigation for all activities authorized by NWPs that result in wetland
losses. Even though there are several hundred mitigation banks and in-
lieu fee programs in the United States that are currently operational,
these mitigation banks and in-lieu fee programs are not distributed
throughout the country in a manner that would support the recommended
change to this general condition. In many regions, individual
permittee-sponsored projects are the only option available for
compensatory mitigation to offset losses authorized by NWP activities.
For very small impacts, such projects may not be practicable. Because
most larger projects require more than one-for-one compensation, we are
confident that we can continue to meet the ``no overall net loss'' goal
without requiring mitigation for all impacts.
One commenter said that general condition 20 is not consistent with
33 CFR 320.4(r)(2), which states that compensatory mitigation will be
for significant resource losses. This commenter articulated that there
is large difference between ``no more than minimal'' and ``significant
resource loss.'' This commenter also stated that if the proposed
activity requires a pre-construction notification and will result in
loss of greater than \1/10\ acre of wetlands, but the activity will
result in minimal adverse effects, then compensatory mitigation cannot
be required. This commenter recommended removing the \1/10\ acre
threshold, and modifying the general condition to simply state that the
district engineer will require compensatory mitigation when necessary
to ensure minimal individual and cumulative adverse effects on the
aquatic environment.
General condition 20 is consistent with the NWP regulations
governing mitigation (see 33 CFR 330.1(e)(3)). That
[[Page 11164]]
regulation states that mitigation may be required to reduce the adverse
effects of the NWP activity so that they are minimal. There is already
sufficient flexibility in the general condition for the district
engineer to waive the compensatory mitigation requirement for wetland
losses that exceed \1/10\ acre if the project impacts are minimal. We
believe the threshold serves an important purpose in communicating to
the public that in most cases, impacts of greater that \1/10\ acre will
be judged to be more than minimal and will require compensatory
mitigation.
One commenter asked whether the \1/10\ acre threshold for requiring
compensatory mitigation for wetland losses also applies to non-wetland
waters of the United States. Several commenters stated that
compensatory mitigation should be required for all authorized impacts
to waters of United States. One commenter said that compensatory
mitigation for losses of non-wetland waters of the United States should
be optional. Another commenter said that on-site restoration of
temporarily impacted areas should be achieved before compensatory
mitigation is required.
The \1/10\ acre compensatory mitigation threshold in paragraph (c)
applies only to wetland losses. We are adding a new paragraph (d) to
this general condition, to clarify that the district engineer may
require compensatory mitigation for losses of streams and other types
of waters of the United States. We do not believe it is necessary to
require compensatory mitigation for all authorized impacts to waters of
the United States. In response to pre-construction notifications,
compensatory mitigation requirements for losses of streams and other
open waters will be determined by district engineers on a case-by-case
basis, to ensure minimal adverse effects. The NWP general conditions,
especially general condition 13, Removal of Temporary Fills, address
the restoration of temporarily impacted areas. Compensatory mitigation
is required only for permanent losses, however, temporary impacts must
also be minimized.
Three commenters asked for specific criteria that would be used by
district engineers to determine when compensatory mitigation would be
required for NWP activities. Two commenters requested clarification
regarding the circumstances when compensatory mitigation would be
required for wetland losses of less than \1/10\ acre. One commenter
recommended that permittees who believe their project should not
require compensatory mitigation be required to provide a justification
for why compensatory mitigation is not necessary for their NWP
activities.
Compensatory mitigation requirements will be determined by district
engineers on a case-by-case basis, after considering relevant and
available information, such as the ecological conditions of the project
site, the type of activity, the impacts of the activity on the aquatic
environment and other public interest factors, and the type of aquatic
resources that will be adversely affected by the NWP activity. To the
extent practicable, this evaluation will be conducted using a watershed
approach. Compensatory mitigation will be required for wetland losses
of less than \1/10\ acre, when the district engineer determines it is
necessary to ensure minimal adverse effects on the aquatic environment.
This is particularly likely in areas where there is concern for the
cumulative effects of multiple small losses. District engineers will
review pre-construction notifications, and determine when compensatory
mitigation will be required. It is not necessary to require permittees
to provide a statement explaining why compensatory mitigation is not
needed, however permittees are welcome to provide such information if
they believe it will help the district engineer in determining the
amount and type of required mitigation. Such statements are most useful
when they are based on sound technical analysis using a watershed
approach that draws on pre-existing assessments of watershed needs.
One commenter supported the provision allowing the district
engineer to waive or reduce the compensatory mitigation requirement for
wetland losses, when other forms of mitigation, such as the
establishment and maintenance of riparian areas, would be better for
the environment. One commenter said that off-site compensatory
mitigation should be preferred in areas where invasive species are a
problem. One commenter suggested that the general condition retain a
preference for restoration.
The location of compensatory mitigation projects will be determined
on a case-by-case basis. Off-site compensatory mitigation may be more
appropriate for a variety of reasons, in addition to concerns for
invasive species. Off-site compensatory mitigation may be more
effective at replacing aquatic resource functions that will be lost as
a result of the NWP activity. Off-site mitigation may also have a
better chance of success, particularly if the proximity of the
permitted activity is likely to adversely impact the mitigation (e.g.,
through altered hydrology). This general condition retains a preference
for wetland restoration, but the text has been modified to reflect the
language in the 1990 ``Memorandum of Agreement Between the
Environmental Protection Agency and the Department of the Army
Concerning the Determination of Mitigation Under the Clean Water Act
404(b)(1) Guidelines.''
One commenter agreed with the one-to-one mitigation ratio in
paragraph (c) of this general condition, provided there is flexibility
in determining the appropriate ratio for a specific NWP activity.
Several commenters said that district engineers should be allowed to
require higher ratios of compensatory mitigation, to help ensure
effective mitigation.
The mitigation ratio in paragraph (c) is a recommended minimum
ratio that can be adjusted upward as necessary to provide for more
appropriate mitigation for a specific activity. For a particular NWP
activity, the district engineer will determine the appropriate
mitigation ratio. Ratios of greater than one-to-one are often required
to ensure that appropriate amounts of compensatory mitigation are
provided to satisfy the minimal adverse environmental effects
requirements of the NWPs. Higher ratios may be used to address temporal
losses, uncertainty in mitigation success, and/or differences in
functions and services between the impact site and the mitigation site.
One commenter expressed support for paragraph (d) of this general
condition.
We are retaining this paragraph, with slight changes to its text to
provide greater clarity. The substance of this paragraph remains
unchanged. Because of the addition of a new paragraph (d), this
paragraph is redesignated as paragraph (e).
Several commenters objected to requiring riparian areas as
compensatory mitigation for activities authorized by NWPs, stating that
the Corps lacks authority to require non-wetland riparian areas as
compensatory mitigation. One commenter provided support for the use of
riparian areas as compensatory mitigation, and another commenter said
that riparian areas should be required for all activities. This
commenter said that using riparian areas as the only form of
compensatory mitigation is appropriate when the project impacts would
be more than minimal without the protection of the riparian area.
Another commenter asserted that the Corps is attempting to expand its
jurisdiction by requiring establishment and maintenance of
[[Page 11165]]
riparian areas. One commenter asked for clarification of the
jurisdictional status of riparian areas under the Clean Water Act. A
commenter said that riparian areas cannot be required as compensatory
mitigation for NWP activities near streams because compensatory
mitigation projects may only consist of areas that are, or will become,
waters of the United States.
The establishment and maintenance of riparian areas can be required
by the district engineer as compensatory mitigation, to help ensure
that the NWP activity results in minimal individual and cumulative
adverse effects on the aquatic environment. Such a requirement does not
make non-wetland riparian areas subject to Clean Water Act
jurisdiction. Since non-wetland riparian areas are not jurisdictional,
this paragraph also states that legal protection should be provided to
the riparian areas, for their protection and maintenance. In many
areas, riparian areas will be wetlands subject to Clean Water Act
jurisdiction. In other areas riparian areas will not meet the criteria
in the Corps wetland definition at 33 CFR 328.3(b).
We do not agree that the establishment and maintenance of riparian
areas should be required for all NWP activities. It may not be a
practicable or appropriate form of compensatory mitigation for some NWP
activities.
Regardless of whether they are wetland or non-wetland, riparian
areas generally provide ecological functions that are important to the
aquatic environment, and especially to the ecological integrity of
streams. Examples of ecological functions provided by riparian areas
include: removing nutrients and pollutants from surface runoff, which
improves water quality; moderating storm flows to streams, which
reduces downstream flooding and degradation of aquatic habitat; erosion
reduction; moderating water temperature changes; providing detritus, a
food source for many aquatic organisms; providing a source of large
woody debris to stream channels, which provides habitat for aquatic
organisms; providing habitat to a wide variety of aquatic and
terrestrial species; trapping sediments, thereby reducing degradation
of stream habitat quality; providing corridors for the movement and
dispersal of many species of wildlife; and providing flood storage
capacity.
Compensatory mitigation projects can include areas that are not
waters of the United States, as long as the mitigation is directly
related to the impacts of the proposed work on such waters and
appropriate to the scope and degree of those impacts. Riparian areas
are integral components of streams and other open waters, and are
essential for their ecological integrity and functioning. The
establishment and maintenance of riparian areas as compensatory
mitigation for activities authorized by NWPs and other types of permits
also helps advance the objective of the Clean Water Act, which is to
``restore and maintain the chemical, physical, and biological integrity
of the Nation's waters.'' Therefore, riparian areas can be required as
compensatory mitigation for NWP activities.
One commenter asked whether the establishment and maintenance of
riparian areas as compensatory mitigation is mandatory or
discretionary. Two commenters said that in many areas with ephemeral
waters, it may not be possible to establish and maintain riparian areas
next to those waters. Another commenter stated that it is not always
feasible to provide legal protection (e.g., conservation easements) for
riparian areas within highway rights-of-way. One commenter said that
for ephemeral streams, vegetated buffers should be required instead of
riparian areas.
The establishment and maintenance of riparian areas as a
compensatory mitigation requirement is at the discretion of the
district engineer. Compensatory mitigation requirements are established
on a case-by-case basis, to ensure that the NWP activity results in
minimal individual and cumulative adverse effects on the aquatic
environment. If ephemeral streams are located on the project site, it
may not be feasible to establish and maintain riparian areas next to
those waters. Riparian areas should be self-sustaining. Also, if it is
not possible to protect riparian areas through real estate instruments,
the district engineer may require alternate arrangements or an
alternative form of compensatory mitigation, as appropriate to the
situation.
The general condition contains a recommended width of 25 to 50 feet
for riparian areas on each side of the stream. Two commenters said that
requiring 25 to 50 foot wide riparian areas may not always be feasible,
and may be too costly. A commenter stated that the recommended width of
riparian areas should be at least 150 feet to protect water quality,
and wider to provide other ecological functions. Another commenter
suggested a minimum width of 100 feet. One commenter indicated that
wider riparian areas should be required to address habitat issues
identified in federal or state watershed plans. Another commenter
stated that wider riparian areas should be required to protect salmon
habitat. One commenter requested clarification regarding the
documentation necessary to determine the appropriate width of the
riparian area.
The appropriate width of the riparian area will be determined by
the district engineer, taking into account the ecological
characteristics of the project site, as well as the nature and extent
of the overall activity that will be constructed on the project site.
The recommended width for riparian areas is intended to provide balance
between environmental protection and the development of the project
site. The recommended width is also intended to be commensurate with
the level of impacts that need to be mitigated. The Corps' regulations
require compensatory mitigation to be appropriate to the scope and
degree of the authorized impacts. Requiring the establishment and
maintenance of a 150-or 100-foot wide riparian area could comprise a
substantial land area on a parcel, and would likely be an inappropriate
amount of compensatory mitigation for an NWP activity, especially for
an NWP that has a \1/2\ acre limit for losses of waters of the United
States. The information provided in the site plans, as well as
supporting documentation, is normally sufficient to determine the
appropriate width of the riparian area.
Another commenter said that there needs to be flexibility to allow
use of other tools to protect water quality, such as storm water
management features, instead of requiring the establishment and
maintenance of riparian areas. One commenter stated that riparian areas
should be planted only with local genetic stocks of native plant
species.
Storm water management features, as well as best management
practices, may be used instead of riparian areas to protect water
quality, if site characteristics do not support the establishment and
maintenance of riparian areas. Native species should be planted, but we
do not agree that it is necessary to limit those plantings to local
genetic stocks, though this should be encouraged where practicable.
Such stocks may not be available in the area, and therefore such a
requirement may not be practicable.
Two commenters stated that this general condition should clearly
state that mitigation banks can be used to provide compensatory
mitigation for NWPs. One commenter said that the use of mitigation
banks to provide compensatory mitigation for NWP activities should be
limited to the same
[[Page 11166]]
watershed as authorized impacts. Two commenters said that in-lieu fee
programs should not be used for the NWPs. Another commenter stated that
in-lieu fee programs should not be used for compensatory mitigation for
NWP activities unless they comply with 2000 in-lieu fee guidance. Two
commenters expressed support for the use of in-lieu fee programs to
provide compensatory mitigation for NWP activities.
Both mitigation banks and in-lieu fee programs can be used to
provide compensatory mitigation for activities authorized by NWP
permits. The established service area of the mitigation bank, as well
as the judgment of the district engineer, will be used to determine
whether credits provided by that mitigation bank are appropriate
compensation for a specific NWP activity. In-lieu fee programs can
provide compensatory mitigation projects that benefit the aquatic
environment, as well as the watershed. When the final Compensatory
Mitigation Rule is published, any changes in mitigation requirements
will be applied to the NWP program as necessary at that time.
Paragraph (g) of the proposed general condition stated that
compensatory mitigation may be required to offset permanent adverse
effects to certain functions and services provided by waters of the
United States, such as converting a forested wetland to a herbaceous
wetland. Three commenters objected to characterizing this as an adverse
effect. Two commenters said that compensatory mitigation should not be
required for these impacts. Two commenters asserted that this paragraph
should be deleted, since there is ample guidance concerning when
compensatory mitigation should be required for these types of impacts.
Two other commenters supported adding this provision to the general
condition.
We are retaining this provision, while redesignating it as
paragraph (h). Compensatory mitigation can be required for adverse
effects to aquatic resources, even specific functions provided by those
aquatic resources.
One commenter recommend adding language to this general condition
which would state that the district engineer will determine appropriate
compensatory mitigation based on what is best for the aquatic
environment on a watershed basis. Another commenter requested
clarification that the establishment of upland buffers around
compensatory mitigation projects is voluntary, and compensatory
mitigation credit would be provided for such vegetated buffers.
We do not believe it is necessary to revise the general condition
to specifically state that appropriate compensatory mitigation will be
determined based on what would be best for the aquatic environment on a
watershed basis, though this is certainly the policy of the Corps.
Mitigation policy documents, such as Regulatory Guidance Letter 02-02,
already support that concept. There is also an extensive discussion of
the watershed approach in the preamble to the proposed Compensatory
Mitigation Rule. District engineers may grant compensatory mitigation
credit for upland buffers surrounding compensatory mitigation project
sites, if those buffers contribute to the ecological functioning and
sustainability of those projects. Any requirement to establish and
maintain vegetated buffers around compensatory mitigation project sites
should be based on considerations of practicability and
appropriateness.
One commenter asserted that the Corps does not have the statutory
authority to require conservation easements to protect compensatory
mitigation projects. This commenter said that such a requirement is
problematic for mining activities because different parties may own
different rights (e.g., surface rights v. mineral rights) associated
with the parcel of land.
The district engineer has the discretion to require conservation
easements for compensatory mitigation project sites, to protect those
sites, if he or she determines that this is necessary to ensure minimal
adverse impacts. In some cases, it may not be feasible to require
conservation easements because the various rights associated with a
particular parcel of land may belong to different individuals. In such
cases, other methods of protecting the mitigation site should be
explored.
One commenter said that this general condition should be revised to
provide performance standards for compensatory mitigation projects
required for NWP activities. This commenter also recommended retaining
the requirement for NWP verifications to specify the party responsible
for implementing the compensatory mitigation plan, instead of limiting
it only to cases where the use of mitigation banks, in-lieu fee
programs, and activity-specific compensatory mitigation is required.
Performance standards for compensatory mitigation projects are
usually specific to certain types of aquatic resources and are,
therefore, more appropriately determined by the district engineer. It
would be inappropriate to establish national performance standards
through this general condition, because of the considerable variation
among aquatic resource types across the country. Paragraph (g) of this
general condition requires the mitigation provisions of NWP
verifications to specify the party responsible for providing
compensatory mitigation. This requirement applies to all three types of
compensatory mitigation, including compensatory mitigation provided by
the permittee.
General condition 20 is adopted, with the modifications discussed
above.
GC 21. Water Quality. We proposed to modify this general condition
by simplifying the provision regarding requirements for water quality
management measures.
Several commenters expressed support for the proposed changes to
this general condition. One commenter suggested that this general
condition should not apply to NWPs 27 or 48, because the activities
authorized by these NWP result in improvements to water quality.
If an aquatic habitat restoration, establishment, or enhancement
activity or a commercial shellfish aquaculture activity involves
discharges of dredged or fill material that require a section 404
permit, then water quality certification must be obtained, either for
the NWP generally or individually by the project proponent, or waived.
This is a requirement of Section 401 of the Clean Water Act. Therefore,
we cannot modify this general condition to exclude NWPs 27 or 48.
Several commenters stated that this general condition creates the
potential for duplicative oversight of water quality issues by the
Corps and EPA or its designated state agency. Another commenter said
that it would be arbitrary for the Corps to attempt to regulate water
quality by requiring some type of undefined water quality management
measures.
Whether duplicative or not, Section 401 certification by EPA or a
State or Tribe, as appropriate, is required by the Clean Water Act.
District engineers can condition NWP authorizations to ensure that the
authorized activity results in minimal individual and cumulative
adverse effects on the aquatic environment and other factors of the
public interest, including water quality. By requiring water quality
management measures necessary to ensure that the authorized activity
results in minimal adverse effects, the Corps is not attempting to
regulate water quality. Appropriate water quality management measures
will be identified on a case-
[[Page 11167]]
by-case basis through the NWP verification process.
A Section 401 certification must be obtained or waived prior to
commencing the authorized activity. In cases where a state has not yet
provided, or has denied, water quality certification, for an NWP
generally, the permittee must request individual certification before
proceeding and provide documentation of this request to the Corps. The
district engineer will wait for a reasonable period of time after
receipt of this documentation. The NWP regulations generally define
this period of time as 60 days, after which the district engineer can
assume a waiver of the water quality certification. The wait period may
vary as a result of negotiations between the district engineer and the
state, but it cannot exceed one year. The district engineer will inform
the project sponsor of the appropriate waiting period for presumption
of a waiver of certification. The activity may not proceed until the
project sponsor has received individual certification from the state or
the waiting period has elapsed. This general condition is adopted as
proposed.
GC 22. Coastal Zone Management. We proposed to modify this general
condition to state that the district engineer or state may require
additional measures to ensure consistency with state coastal zone
management requirements.
One commenter stated that use of the term ``waived'' in this
general condition is inappropriate, because Coastal Zone Management Act
(CZMA) consistency determinations cannot be waived. This commenter also
stated that obtaining a CZMA consistency concurrence cannot be a
condition of a Federal permit, because the CZMA states that a Federal
permit cannot be issued until a CZMA consistency concurrence is issued.
We have modified this general condition by removing the phrase ``or
waived'' and replacing it with the phrase ``or a presumption of
concurrence must occur'' to be consistent with the implementing
regulations for the CZMA. This general condition is an appropriate
means of ensuring compliance with CZMA requirements, especially for
those NWP activities that do not require pre-construction notification.
For activities subject to the CZMA, the NWP authorization is not valid
until the permittee has complied with the requirements of the CZMA,
including the requirement to obtain CZMA consistency concurrence or a
presumption of concurrence.
A CZMA concurrence or presumption of concurrence must be obtained
prior to commencing the authorized activity. In cases where a state has
not acted on, or has disagreed with the Corps' consistency
determination, the permittee must provide the state with an individual
consistency determination for concurrence, and must provide the
district engineer with the state's individual consistency concurrence
or a copy of the individual consistency determination provided to the
state for concurrence. If the state fails to act on the permittee's
consistency determination within six months of receipt by the state,
concurrence will be presumed.
This general condition is adopted with the modification discussed
above.
GC 23. Regional and Case-by-Case Conditions. We proposed to modify
this general condition to clarify that water quality certifications may
be issued by Indian Tribes or the U.S. Environmental Protection Agency,
and that states issue CZMA consistency determinations.
One commenter recommended modifying this general condition to
clarify that the U.S. EPA has delegated the section 401 water quality
certification program to many states, and that in those cases it is the
designated state that issues the water quality certification, not the
U.S. EPA.
We do not agree that this suggested modification is necessary,
since the wording already recognizes that delegated States or Tribes
may issue Section 401 water quality certifications.
This general condition is adopted as proposed.
GC 24. Use of Multiple Nationwide Permits. We proposed to modify
this general condition by making a grammatical adjustment.
Several commenters objected to the practice of using more than one
NWP to authorize a single and complete project. In contrast, two
commenters said that combining NWPs is both appropriate and desirable
as a means for the Corps to reduce its workload and provide expedited
approvals to the regulated public. Two comments said that the proposed
general condition has the effect of raising the acreage limit when an
NWP with an acreage limit is combined with another NWP that has no set
limit. One commenter suggested rewording the general condition in the
affirmative. One commenter suggested replacing the term ``temporary
loss'' with ``temporary impact'' for purposes of calculating the loss
of waters of the United States.
We agree that the ability to use multiple NWPs reduces our workload
and expedites decisions for the regulated public while maintaining the
necessary protections for the aquatic environment. When two NWPs are
used to authorize a single and complete project, and one NWP has a
specified limit and the other NWP has no specified limit, the general
condition states that the acreage loss of waters of the United States
cannot exceed the acreage limit of the NWP with the highest specified
acreage limit. The NWP with the specified acreage limit establishes the
acreage limit for the single and complete project, not the NWP with no
designated acreage limit. We believe phrasing this general condition as
a prohibition assists in compliance. The reference to ``acreage loss''
in this general condition applies to permanent losses, to be consistent
with the definition of ``loss of waters of the United States'' provided
in the ``Definitions'' section of the NWPs.
This general condition is adopted as proposed.
GC 25. Transfer of Nationwide Permit Verifications. We proposed to
add this new general condition to the NWPs.
Several commenters supported the proposed general condition. One
commenter requested clarification whether there would be a standardized
form for the parties to sign and submit. Another commenter recommended
adding a permit transfer form as a separate section of the NWP
verification or certificate of compliance.
This general condition provides specific language that must be
included in all NWP verification transfer request letters from the
original permittee to the appropriate Corps district office, to
validate the transfer of the NWP verification to a new property owner.
District engineers have the discretion to incorporate this language in
NWP verification letters, either as language within the text of the
letter, or as a separate form or attachment. At their discretion,
district engineers may also ask permittees to include the referenced
language as part of their own transfer request letter.
One commenter requested clarification whether the permit transfer
information would be tracked in a database and made available to the
public and other regulatory agencies.
The permit transfer authorization information will be retained in
the appropriate recordkeeping facilities at Corps district or field
offices. The information will be provided upon request to the public or
other agencies.
One commenter recommended adding a sentence to the transfer
statement to be signed, specifying that any changes in the permitted
project must be evaluated by the district engineer and could require
modifications to the permit.
[[Page 11168]]
Any requests for modification of an activity previously authorized
by a DA permit will be reviewed by the district engineer. If the new
proponent wants to modify the previously verified activity, the
proposed modification must be submitted for the consideration of the
Corps, to verify that the activity still complies with the terms and
conditions of the applicable NWP. We do not believe it is necessary to
add a sentence to this general condition to describe this requirement,
which applies regardless of whether the permit is transferred or not.
Several commenters stated that this general condition only
addresses the sale of the property associated with an NWP verification,
and recommended that it be expanded to allow the transfer of a permit
verification when responsibility over the project is transferred even
if the lands in question do not undergo change in ownership. Another
commenter suggested clarifying that the transfer provision is also
applicable when only part of the property covered by the NWP is sold.
This commenter also suggested changing the phrase ``associated
liabilities associated with compliance with its terms and conditions''
to read ``obligations to comply with its terms and conditions.''
The language for the proposed general condition was taken from
Appendix A of 33 CFR 325, which is the standard form for Department of
the Army permits. This language is found at general condition 4 of
Appendix A. We believe that the language in this general condition
should be consistent with our standard permit language.
One commenter requested clarification on how the NWP verification
transfer would affect off-site mitigation requirements associated with
an NWP verification. One commenter requested clarification as to
whether the transfer is a required condition or an option.
As stated in this general condition, when a property associated
with an NWP verification is sold, the responsibilities and liabilities
associated with the NWP verification are transferred to the new owner.
This includes any mitigation requirements added as special conditions
to the NWP authorization being transferred. Transferring the NWP
verification to the new owner of the property is not necessary if the
new owner decides not to conduct the authorized activity. The new owner
also has the option of obtaining a different NWP verification. However,
if the activity is (or was) conducted and any permit conditions are
still applicable, the new owner must have some form of DA
authorization.
This general condition is adopted as proposed.
GC 26. Compliance Certification. We did not propose any substantive
changes to this general condition. One commenter suggested changing the
name of this general condition to ``Compliance Verification'' to avoid
confusion with other certifications such as water quality
certifications.
We do not agree with the proposed name change for this condition.
For this general condition, the permittee is certifying that he or she
has completed the authorized work and any required mitigation.
This general condition is adopted as proposed.
GC 27. Pre-Construction Notification. We proposed to modify and
simplify this general condition by removing language that is redundant
with the terms of specific NWPs. We also proposed to modify the
information requirements for pre-construction notifications. Other
proposed modifications are discussed in the September 26, 2006, Federal
Register notice.
Two commenters stated that the reference to using ENG FORM 4345
should be removed because this form does not contain the necessary
information required for a complete pre-construction notification. One
commenter requested that a complete pre-construction notification be
defined.
It is not necessary to use ENG FORM 4345 for pre-construction
notifications. Instead of using ENG FORM 4345, a prospective permittees
may choose to supply the information in a letter. Some districts
provide checklists to assist prospective permittees, especially if they
have regional conditions that specify additional information that must
be submitted with pre-construction notifications.
One commenter asked if a pre-construction notification is presumed
to be complete if the district engineer does not request additional
information necessary to make the pre-construction notification
complete within 30 days. This commenter also requested clarification on
when the 45-day pre-construction notification review period begins. One
commenter suggested that the district engineer should be allowed to
make more than one request of additional information in order to make a
more informed decision.
If 30 days has passed since the pre-construction notification was
received by the Corps district, the pre-construction notification will
be presumed to be complete. The 45 day pre-construction notification
review period begins on the date the complete pre-construction
notification is received by the Corps district. If the district
engineer requests additional information necessary to make the pre-
construction notification complete, a new 45 day review period begins
on the date the requested information is received by the Corps
district. If no request for additional information is received, the
original pre-construction notification is deemed complete and the 45
day review period begins on the date the pre-construction notification
was received by the Corps district.
The provision limiting the district engineer to one request for
additional information applies only to those requests for information
necessary to complete the pre-construction notification. We have
modified the second sentence of paragraph (a) to provide flexibility in
cases where there are extenuating circumstances that warrant an
additional request for information necessary to make a pre-construction
notification complete. Such requests must also be made within the 30
calendar days of receipt of the pre-construction notification. This
sentence has been modified to state that, as a general rule, the
district engineer will make only one request for additional information
to make the pre-construction notification complete. District engineers
should endeavor to make only one request for additional information to
make a pre-construction notification complete.
The information requirements for a complete pre-construction
notification are provided in paragraph (b) of this general condition.
We believe the information required for a complete pre-construction
notification is the minimum information necessary for district
engineers to begin the process of determining whether the proposed work
will result in minimal adverse effects on the aquatic environment and
is authorized by NWP.
If, as a result of the review of the complete pre-construction
notification, the district engineer determines that additional
information (such as a compensatory mitigation plan) is needed to make
a final decision on whether the activity qualifies for NWP
authorization or discretionary authority should be asserted, the
district engineer may request that information. In cases where this
additional information is necessary to make a decision on the pre-
construction notification, the decision must still be made within 45
days of the receipt date for the complete pre-construction
notification.
[[Page 11169]]
Two commenters said that the burden has shifted from the Corps to
the prospective permittee for Endangered Species Act or National
Historic Preservation Act compliance, and there is no relief provided
in the 45 day clock for applicants when Endangered Species Act or
section 106 consultation is necessary. Two commenters stated that if
the 45 day period has passed, the NWP verification should be issued
even if the Endangered Species Act or section 106 requirements have not
been completed. One commenter inquired if the Corps could ensure that
the Endangered Species Act or National Historic Preservation Act
consultation processes will conclude within 45 days. One commenter said
that paragraphs (b)(6) and (b)(7) of this general condition should
clarify whether Federal permittees are required to submit information
for compliance with the Endangered Species Act or Section 106 of the
National Historic Preservation Act.
Permittees cannot presume NWP authorization if any endangered or
threatened species or critical habitat might be affected or is in the
vicinity of the project or if the project is located in designated
critical habitat, or if the activity may have the potential to cause
effects to any historic properties listed, determined to be eligible
for listing, or potentially eligible for listing on the National
Register of Historic Places (see general conditions 17 and 18). 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 Endangered Species Act have been
satisfied (see 33 CFR 330.4(f)(2)). There is a similar provision for
historic properties (see 33 CFR 330.4(g)(2)). We have modified general
conditions 17 and 18 to require district engineers to inform permittees
of the need to conduct these consultations within 45 days of receipt of
complete pre-construction notifications, however, even if such notice
is not received, the permittee cannot assume authorization. The
permittee makes the first determination as to whether general
conditions 17 or 18 are triggered, and will know if he or she has
notified the Corps of any potential effects on listed species or
critical habitat, or on historic properties. If so, the permittee must
wait for written verification from the Corps that ESA and historic
preservation requirements have been satisfied. In cases where
Endangered Species Act or section 106 consultation is necessary, we
cannot require those consultations to be concluded with 45 days of
receipt of a complete pre-construction notification. Those
consultations often take more than 45 days; their timeframes are only
partially within the control of the Corps. The Corps will do what it
can to expedite any required consultations.
We have inserted the phrase ``for non-Federal permit applicants''
in paragraphs (b)(6) and (b)(7) since Federal permittees are to follow
their own procedures for complying with the Endangered Species Act and
the National Historic Preservation Act. Non-federal permittees are
required to submit the information required by these paragraphs, since
the Corps will use that information to determine whether it is
necessary to conduct Section 7 or Section 106 consultations for those
activities that may affect listed species, critical habitat, or
historic properties.
One commenter recommended modifying paragraph (b) of this general
condition to include guidance on the types of information and analyses
that should be submitted with pre-construction notifications to support
``effect'' determinations and consultation efforts under Section 7 of
the Endangered Species Act. This commenter said that this guidance
should include instructions on how prospective permittees can obtain
species lists. This commenter also suggested amending paragraph (b) to
include guidance on evaluating ``effects of the action'' and
constructing ``consultation packages'' for informal and formal Section
7 consultation.
In paragraph (e) of general condition 17, Endangered Species, we
have provided the links to the Web sites of the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service, where prospective
permittees can go to obtain further information on endangered or
threatened species or critical habitat. The available information
regarding endangered or threatened species or critical habitat varies
by Service field office, and we believe providing a general link is
sufficient since their Web pages are likely to change over time. As for
providing guidance regarding information and analyses to be used for
Endangered Species Act compliance, it would be more appropriate for our
district offices to work with the field offices of the Services to
develop such guidance as necessary, since the appropriate types of
information and analyses are likely to vary by species, and the type of
activity being conducted.
One commenter stated that assuming the NWP verification after 45
days is problematic because many states require the Corps verification
letter prior to commencing the water quality certification review.
In cases where the 45 day pre-construction review period has
passed, the permittee must still comply with general condition 21,
Water Quality. After the applicant has submitted an application for
individual water quality certification, waiver of the requirement to
obtain water quality certification for an NWP is assumed if the
applicant has not heard from the state or Tribe within a reasonable
amount of time, generally 60 days (see 33 CFR 330.4(c)(6)). If the
state requires a Corps verification for water quality certification,
the permittee must wait for the verification. The Corps will make every
effort to provide verification letters within 45 days.
One commenter said that the 45 day default authorization provision
should be eliminated and two commenters requested that the 45 day
review period be reduced to 30 days. Two commenters asked if the time
frames are measured in calendar days or business days. One commenter
requested a list of potential differences in information requirements
for pre-construction notifications for the various NWPs.
We are maintaining the 45 day default authorization provision. We
are modifying the text of general condition 27 to clarify that calendar
days are used. Paragraph (b) of this general condition lists all of the
information necessary for a complete pre-construction notification.
Corps districts can provide checklists to assist prospective
permittees, especially if they have regional conditions that specify
additional information that must be submitted with pre-construction
notifications.
Two commenters expressed support for removing part of (a)(2) from
the notification general condition adopted in 2002. One commenter
suggested modifying paragraph (a)(2) to state that a prospective
permittee cannot begin an NWP activity that requires a written waiver
of NWP limits, until the written waiver is issued by the district
engineer. One commenter said the district engineer should be required
to provide written waivers to prospective permittees within the 45 day
time-frame.
We have modified paragraph (a)(2) to state that the permittee
cannot begin the activity until the district engineer issues the
written waiver required by an NWP. Such waivers do not have to be
[[Page 11170]]
provided during the 45-day pre-construction notification review period,
because the written waiver is required by the terms and conditions of
the applicable NWP. For proposed projects that require any type of
written waiver, district engineers must make a written determination
that the proposed work will result in no more than minimal adverse
effects on the aquatic environment. District engineers will try to
determine whether or not to grant waivers as expeditiously as possible.
One commenter expressed support for the proposed changes to
paragraph (b)(3). Another commenter said that paragraph (b)(3) contains
an incomplete sentence. One commenter recommended adding a requirement
for the prospective permittee to state how avoidance and minimization
was accomplished in order for the Corps to make a better decision. One
commenter suggested that the prospective permittee should list any
waivers that are requested. One commenter said that paragraph (b)(3)
should be modified to require analyses of losses of juvenile salmonid
over wintering habitat and early rearing habitat.
We have inserted the words ``and to determine the need for'' before
``any necessary compensatory mitigation'' to complete the sentence in
paragraph (b)(3). District engineers will review pre-construction
notifications in accordance with general condition 20, Mitigation, to
determine whether the prospective permittee has accomplished all
practicable avoidance and minimization on the project site. The present
information requirements in paragraph (b)(3) will suffice for
determining whether waivers of NWP limits are being requested by the
prospective permittee. Assessments of potential impacts to juvenile
salmon are more appropriately addressed by Corps districts where
significant salmon impacts are occurring.
Two commenters agreed with the requirement to include a delineation
of wetlands and other waters of the United States with the pre-
construction notification. One commenter asked if an approved
jurisdictional determination is necessary for a complete pre-
construction notification. One commenter said that the general
condition should clarify whether a prospective permittee can assume
that a delineation submitted with a pre-construction notification is an
approved jurisdictional determination. One commenter stated a
delineation of special aquatic sites should be required for NWPs 3, 11,
13, 19, 27, 29, 31 and 36. Two commenters voiced concern that
delineating wetlands and waters of the United States beyond those
actually impacted by the project is too burdensome when working on
large project sites.
The permittee cannot assume that a delineation of waters of the
United States submitted with a pre-construction notification is an
approved jurisdictional determination. Jurisdictional determinations
are made by the Corps and documented through the issuance of an NWP
verification. The Corps is in the process of revising its procedures
for issuing and documenting its jurisdictional determinations, and will
be providing guidance shortly.
The 45-day pre-construction notification review period starts on
the date that a complete pre-construction notification is received. If
the district engineer determines that the delineation is incorrect and
requests a revised delineation from the applicant, the 45-day review
period starts again when the revised delineation is received by the
district engineer. This general condition requires delineations of
special aquatic sites and other waters of the United States on the
project site, so it is not necessary to specify which NWPs require
delineations with their pre-construction notifications. Since this
paragraph refers to project site, it does not imply that all waters of
the United States on the property need to be delineated. The
delineation need only cover a sufficient area surrounding the proposed
NWP activity.
One commenter stated the while the methodology for delineating
wetlands is established, methods for delineating non-wetland waters of
the United States are lacking. One commenter voiced concern with the
language stating that the delineation must be prepared in accordance
with the ``current method required by the Corps'' and requested that we
state that wetland delineations cannot be based solely on National
Wetland Inventory maps because they were not developed for the 404
program. Furthermore, it was urged that the Corps require field-based
delineations and not approve any delineations for waters of the United
States, including wetlands, without a field inspection.
Delineations of non-wetland waters of the United States should
follow the definitions for these areas. For example, in using the
definition for riffle and pool complexes, maps indicating stream
segments containing riffle and pool complexes and their location can be
used as delineations of these special aquatic sites. It is not
necessary to precisely map each riffle and pool complex within a
stream. Rather, the delineation need only show the locations of special
aquatic sites at a sufficient level of detail for the district engineer
to determine the potential for these sites to be impacted by project
activities.
The reference to the ``current method'' means the 1987 Corps of
Engineers Wetland Delineation Manual, associated guidance, and any
approved regional supplements to the 1987 manual. National Wetland
Inventory maps are useful for planning purposes but they do not provide
delineations of waters of the United States. It is not necessary to
require field inspections for all delineations of waters of the United
States.
One commenter expressed concern regarding the language in paragraph
(b)(4) that discusses situations where the Corps would conduct
delineations. In this paragraph we are simply stating that if a
prospective permittee relies on the Corps to conduct a delineation,
that prospective permittee should anticipate delays due to the
workloads facing the district engineers.
One commenter suggested modifying paragraphs (b)(5) and (e) to
clarify that these paragraphs refer to permanent losses. One commenter
recommended changing paragraph (b)(5) to require the prospective
permittee to state why the project would exceed minimal adverse impacts
without additional mitigation. Two commenters suggested that there
should not be a requirement to submit detailed compensatory mitigation
plans with a pre-construction notification, because of the costs to
develop mitigation plans that may not be required once the district
engineer makes a decision on the pre-construction notification.
It is unnecessary to modify these paragraphs to specify that we are
referring to permanent losses, because the NWP definition for ``loss of
waters of the United States'' refers only to permanent losses. In
fulfilling the requirements of paragraph (b)(5), the prospective
permittee's statement can explain how the proposed activity complies
with general condition 20. Paragraph (c) of general condition 20 states
that the district engineer can waive the requirement for wetlands
compensatory mitigation or require an alternate form of mitigation. We
are modifying paragraph (b)(5) of this general condition to allow
project proponents to submit conceptual or detailed mitigation plans.
One commenter said that a conceptual mitigation plan is not
sufficient and detailed plans should be required. One commenter
requested that detailed compensatory mitigation monitoring plans be
required for activities
[[Page 11171]]
authorized by NWPs 12, 14, 21, 29, 39, 40, 41, 42, 43, 44, 45, 46, 47,
48, 49, and 50.
Conceptual mitigation plans are appropriate for submittal with pre-
construction notifications. These conceptual plans are useful in making
initial determinations regarding the appropriateness of proposed
compensatory mitigation. If not submitted with the pre-construction
notification, detailed compensatory mitigation plans will be required
prior to commencing the authorized activity in cases where the
permittee is performing the mitigation. If the permittee is using a
mitigation bank or in-lieu fee program, he or she must provide the name
of the bank or program and the number and type of credits being
purchased.
One commenter suggested that paragraph (d)(2) be modified to
include NWPs 20 and 38 with NWP 37, because of the emergency nature of
these activities. We do not agree that this is necessary, because NWP
20 does not require pre-construction notification and NWP 38 is not
limited to emergency situations. We are adding numbers to the
paragraphs within paragraph (d) to provide greater clarity.
One commenter recommended modifying paragraph (d) to reduce the
acreage threshold for agency coordination from \1/2\ acre to \1/10\
acre, because of the \1/10\ acre threshold for wetlands compensatory
mitigation.
The present threshold for agency coordination is sufficient, since
activities resulting in the loss of greater than \1/2\ acre of waters
of the United States have greater potential to result in more than
minimal adverse effects. Decisions regarding the amount and type of
compensatory mitigation that should be required for NWP activities are
made by district engineers on a case-by-case basis in accordance with
general condition 20 and other appropriate regulations and guidance.
Requiring agency coordination for losses of less than \1/2\ acre would
result in a substantial workload increase to Corps districts and the
resource agencies, and is unlikely to provide significant additional
protection for the aquatic environment.
One commenter said that the authority to sign NWP verifications
should not be delegated to Corps project managers.
Districts have the authority to determine the appropriate level of
signature authority for NWP verifications, to implement the NWP program
effectively.
This general condition is adopted with the modifications discussed
above.
GC 28. Single and Complete Project. We are adding a new general
condition to clarify that the NWPs authorize only single and complete
projects. This is in response to a commenter's concern about the
removal of language from the 2002 NWPs which limited the use of certain
NWPs to a single and complete project or a part of a single and
complete project. That language was in NWPs 13, 15, 18, 19, 29, 39, 42,
43, and 44.
Limiting all NWPs to authorize only single and complete projects is
a long-standing practice. In this new general condition, the authorized
activity must be a single and complete project. In addition, this
general condition states that the same NWP can be used only once to
authorize that single and complete project. For example, NWP 39 cannot
be used twice to authorize a commercial development. This general
condition is consistent with general condition 24, Use of Multiple
Nationwide Permits. The new general condition will help improve
environmental protection by clarifying that piecemealing of activities
that require Department of the Army permits is prohibited.
Former general condition 27. Construction Period. We proposed to
remove this NWP general condition.
Several commenters expressed support for the removal of this
general condition, stating that it would eliminate confusion about the
time frames when the NWPs are in effect. Several commenters objected to
the elimination of this general condition, stating that it was needed
since it took into account unexpected situations, which can delay the
completion of a project. One commenter opposed the removal of this
general condition, stating that it provided necessary flexibility at
the end of a NWP cycle, and still allowed the permittee to complete the
work without having to request another permit or verification from the
Corps. Several other commenters said that elimination of this general
condition could result in considerable delays and economic burdens for
completion of projects with no more than minimal adverse effects. One
commenter stated that removing this general condition would result in
more individual permits for activities that would not result in more
than minimal impacts.
We are removing this general condition, because it does not comply
with Section 404(e)(2) of the Clean Water Act, which places a five-year
limit on general permits issued under section 404. Since this general
condition did not specify any limits on project completion dates, in
effect it provided the district engineer with the authority to state
that the NWP activity was authorized for any period of time. We believe
that this is contrary to section 404(e)(2).
Under the current NWP regulations, district engineers may issue NWP
verification letters that are valid for a period of two years. In cases
where an NWP verification letter expires before the NWP itself expires,
the activity continues to be authorized by the NWP until the NWP
expires. It is not necessary to issue a new verification during the
five year period the NWP is in effect. Any special conditions that were
imposed by the district engineer remain in effect after the NWP
verification expires, unless the district engineer removes those
conditions.
Once the NWP expires, the permittee can utilize 33 CFR 330.6(b) to
complete the work. That regulation allows permittees to continue work
for one year in reliance on an NWP authorization, if that NWP has
expired or been modified or revoked, and the activity is under
construction or under contract to commence construction. If that work
cannot be completed within that one-year time period, then the
permittee would have to obtain another DA authorization. We continue to
believe that 33 CFR 330.6(b) is sufficient to address the concern with
projects that may not be completed before an NWP expires. For NWP
activities that will require substantial amounts of time to complete,
project proponents should consider whether it would be more
advantageous to pursue an individual permit authorization. Individual
permits can authorize greater flexibility in construction periods. 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.
One commenter requested clarification on whether newly issued NWP
verifications for specific projects would be valid for five years or
for only one to two years. Two commenters suggested that all NWP
verifications should be issued with five-year expiration periods.
Another commenter suggested that all NWP verifications should be set to
expire concurrently with the NWPs themselves. Similarly, another
commenter requested clarification on whether applicants could request
NWP verifications with expiration dates corresponding to the new NWPs
expiration date.
In the November 30, 2004, issue of the Federal Register (69 FR
69567) we
[[Page 11172]]
published a proposed rule that would allow district engineers to issue
NWP verifications that would expire on the same date the NWP expires.
Until that final rule is issued, the current 33 CFR 330.6(a)(3)(ii)
applies, which states that an NWP verification letter can be valid for
no more than two years. However, as stated above the activity continues
to be authorized by the NWP until the NWP expires.
Definitions
One commenter said that the NWP definitions should be promulgated
through the Administrative Procedure Act rulemaking process, and placed
in the Code of Federal Regulations since many of these terms apply to
other aspects of the regulatory program.
The definitions adopted today have been promulgated through the
Administrative Procedure Act process. These definitions apply only to
the NWP program. A separate rulemaking action would be required to
adopt definitions with general applicability to the Corps Regulatory
Program.
One commenter asked for definitions of ordinary high water mark,
adverse, land, waters of the United States, environmental,
environmental impact, ``a timely manner'', regulatory efficiency,
cumulative impacts, public interest factors, mitigation banks,
permittee-responsible mitigation, in-lieu fee program, aquatic resource
functions, and grandfathering. Another commenter requested a definition
of ``temporary loss.''
We are providing a separate definition of ordinary high water mark.
Previously, this definition was in the definitions of ``open water''
and ``waterbody.'' The term ``waters of the United States'' is defined
at 33 CFR part 328. We do not believe it is necessary to define, for
the purposes of the NWP program, the terms ``environmental,''
``environmental impact,'' ``a timely manner,'' ``regulatory
efficiency,'' or ``grandfathering.''
Commonly accepted definitions for those terms are sufficient for
the implementation of the NWP program. The Corps uses the definition of
the term ``cumulative impact'' from the Council on Environmental
Quality's regulation at 40 CFR 1508.7. The terms ``mitigation bank''
and ``in-lieu fee program'' are currently defined by the November 28,
1995, mitigation banking guidance (60 FR 58605). The grandfather
provisions for NWP authorizations are provided at 33 CFR 330.6(b). It
is more appropriate to define the terms ``permittee-responsible
mitigation'' and ``aquatic resource functions'' through the
promulgation of the final compensatory mitigation rule required by
Section 314 of the National Defense Authorization Act for Fiscal Year
2004. Defining ``temporary loss'' is not desirable, because it would
likely result in a reduction in flexibility in implementation of the
NWP program. Where there is ambiguity, district engineers should have
flexibility to determine, on a case-by-case basis, whether a particular
activity causes a temporary or permanent loss of waters of the United
States.
Two commenters requested a definition of ``minimal effects.''
Another commenter said that this term should be defined regionally,
since it cannot be defined at a national level.
We continue to maintain our position that the term ``minimal
effects'' cannot be simply defined at a national level. It is
challenging to define it precisely even at smaller scales, such as
states or watersheds. There is considerable variation in aquatic
resource functions, services, and values across the country. There is
also wide variation in those functions, services, and values at smaller
landscape scales. Site-specific factors, such as the types and amounts
of functions provided by waters, the services those aquatic resource
functions provide, the value society places on those functions and
services, the geomorphic setting of those waters, and other factors are
important to consider when determining whether an NWP activity will
result in minimal adverse effects on the aquatic environment. We
believe the term ``minimal,'' while not precise, is well understood by
the public and has not caused undue confusion in the implementation of
the Section 404 program to date. A certain amount of flexibility on the
part of district engineers to determine what is ``minimal'' in a
particular context, after consideration of the factors discussed above,
is necessary for the practical implementation of the program.
Best management practices (BMPs). We proposed to modify this
definition by removing the last sentence. One commenter suggested that
we acknowledge that BMPs may have impacts on groundwater and subsurface
water.
Although best management practices may impact hydrology, the
definition need not address that issue. The definition is adopted as
proposed.
Compensatory mitigation. We proposed to modify this definition by
removing the phrase ``For the purpose of Section 10/404, compensatory
mitigation is.'' We also proposed to replace ``creation'' with
establishment (creation).'' One commenter expressed support for
removing ``exceptional circumstances'' in relation to the use of
preservation as a type of compensatory mitigation. One commenter stated
that ``aquatic resource'' should be defined in the context of
jurisdiction. Another commenter stated that this definition should be
consistent with the other terms for different types of compensatory
mitigation that are provided in this section, specifically the
definition provided for establishment (creation).
Compensatory mitigation may be provided by aquatic resources that
are not subject to the Corps regulatory jurisdiction. Therefore, it is
not necessary to modify this definition by replacing ``aquatic
resources'' with ``waters of the United States.'' We have added the
word ``creation'', to be consistent with ``establishment (creation),''
which is defined in this section. The definition is adopted as
proposed.
Currently serviceable. We proposed to move the term and definition
from NWP 3 to this section since it is used for other NWPs. One
commenter suggested that most culvert replacement projects, regardless
of current serviceability, have minimal impacts and recommended adding
language allowing a failed culvert to be considered currently
serviceable, so that it would be eligible for NWP 3 authorization.
While we agree that most culvert replacements have minimal impacts,
the definition encourages maintenance to be conducted before the
structure or fill falls into such a state of disrepair that it can no
longer be considered serviceable. The definition is adopted as
proposed.
Discharge: We are adding a definition of the term ``discharge'' to
clarify when a discharge of dredged or fill material occurs for an NWP
activity. This definition clarifies that the term ``discharge'' as used
in the NWPs, also applies to any activity that causes or results in a
discharge, as defined at 33 CFR 323.2.
Enhancement. We proposed 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.'' We did not
receive any comments on the proposed definition. The definition is
adopted as proposed.
Ephemeral stream. We did not propose any changes to this
definition. Four commenters said that this definition should address
the jurisdictional status of ephemeral
[[Page 11173]]
streams. Some of these commenters said that this definition should be
removed, because these features are not jurisdictional. One commenter
stated that the hydrologic criteria in the second and third sentences
should be qualified as occurring in a ``typical year.'' One commenter
suggested we define them as features that lack a connection to the
water table and are not waters of the United States. One commenter said
that this definition should state that groundwater is not typically a
source of water for an ephemeral stream.
We do not agree that it is appropriate to state in the definition
of this term that ephemeral streams are not waters of the United States
because many ephemeral streams are subject to Clean Water Act
jurisdiction as waters of the United States. Further, neither the NWPs
nor this preamble are intended to address jurisdictional issues. If an
ephemeral stream is not a water of the United States, as defined at 33
CFR part 328, then no Section 404 permit is required for discharges of
dredged or fill material into it. An ephemeral stream that meets the
criteria at 33 CFR part 328 is a water of the United States. The phrase
``typical year'' applies to the entire definition, not just the first
sentence. Groundwater is not a source of water for an ephemeral stream.
The definition is adopted as proposed.
Establishment (creation). We proposed 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.'' One commenter suggested defining ``upland'' and
``deepwater site,'' and retaining the flexibility of the current term
``creation'' when in-kind mitigation is conducted. One commenter said
that the definition of ``creation'' should be retained until questions
regarding the extent of the Corps jurisdiction are resolved. Another
commenter recommended the removal of ``deepwater'' from this definition
because deepwater areas are aquatic resources.
We do not believe it is necessary to define the word ``upland'' for
purposes of the NWP program. This definition need not specifically
address jurisdictional issues. What constitutes an ``upland'' in
contrast to an ``aquatic resource'' will depend on the practices in
place at the time the determination is made. We are removing the word
``deepwater'' because it is an aquatic resource. This definition is
adopted with the modification discussed above.
Historic property. In response to one commenter, we are adding this
term to the ``Definitions'' section. It is adapted from the Advisory
Council on Historic Preservation's definition at 36 CFR 800.16(l)(1),
and is provided for the convenience of users of the NWPs.
Independent utility. We did not receive any comments on the
proposed definition. The definition is adopted as proposed.
Intermittent stream. We did not receive any comments on the
proposed definition. The definition is adopted as proposed.
Loss of waters of the United States. We proposed 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
also proposed 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. We also proposed 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.
Three commenters stated that activities that are not regulated
should not be included. One commenter asserted that temporary fills
should be included as a loss because the functions and values may not
return. Six commenters said that ephemeral streams should not be
included when determining whether the proposed work exceeds the acreage
limit of the NWP because the Corps lacks jurisdictional authority in
these areas. One commenter stated that intermittent streams and
artificially created wetlands should not be included for the same
reason. Another commenter said that the acres of waters of the United
States provided as compensatory mitigation should count towards the
acreage limit. One commenter stated that the loss of stream bed should
include inundation, in addition to filling and excavation.
The first sentence of this definition states that the permanent
adverse effects are caused by the regulated activity. Therefore,
unregulated or exempt activities are not included when calculating the
loss of waters of the United States. Temporary fills should not be
considered as losses of waters of the United States, since they are
required to be restored (see General Condition 13, Removal of Temporary
Fills). If they are not restored properly, then the district engineer
may consider them to be permanent losses. District engineers may also
consider permanent losses of specific aquatic resource functions and
services when determining if mitigation is required (see paragraph (h)
of general condition 20, Mitigation). Ephemeral streams, intermittent
streams, and man-made wetlands that meet the regulatory definition of
``waters of the United States'' are included for the purposes of this
definition. As discussed in paragraph (e) of general condition 20,
compensatory mitigation cannot be used to decrease the acreage loss of
waters of the United States for purposes of determining whether an NWP
acreage threshold is exceeded. Mitigation can be used to ensure that
adverse effects are minimal. Inundation does not usually result in the
loss of stream bed. Once the cause of inundation has been removed, the
normal water level of the stream will return. (Note: The use of the
term ``flooding'' in the definition of ``loss of waters of the United
States'' refers to the flooding of wetlands. This conversion of
wetlands to open waters is considered a loss of waters.)
We have modified the first sentence of this definition to make it a
complete sentence. In the third sentence of this definition, we
replaced the word ``existing'' with ``jurisdictional'' to clarify that
the measurement applies to waters of the United States.
The definition is adopted with the modifications discussed above.
Non-tidal wetland. We did not propose any changes to this
definition. One commenter noted that not all wetlands are waters of the
United States. We agree and have removed the parenthetical expression
from this definition.
Open water. We proposed to change this definition by adding a
sentence that describes what an ordinary high water mark is. One
commenter said that the definition of ordinary high water mark should
be removed because there is not common agreement regarding the
definition of this term. One commenter recommended using the definition
of ``ordinary high water mark'' from 1975 regulations. One commenter
suggested removing the language defining ``ordinary high water mark''
and making it a separate definition. One commenter said that this
definition should not include ephemeral waters because they are not
open waters. Another commenter stated that this definition should be
removed, because it is not used in the NWPs or general conditions.
[[Page 11174]]
We have removed the language defining ``ordinary high water mark''
and provided it as a separate definition in this section. The
definition is from 33 CFR 328.3(e). Ephemeral waters are considered
open waters, because they have flowing or standing water, at least for
short periods of time. This definition is used in NWPs 4, 27, 30 and
47, as well as general conditions 9 and 20. The definition is adopted
with the modification discussed above.
Ordinary high water mark. Several commenters recommended providing
a stand alone definition of this term.
We have provided a definition of ordinary high water mark in this
section. It is based on the definition at 33 CFR 328.3(e).
Perennial stream. We did not propose any changes to this
definition. One commenter said that perennial flow is dependent on
time, not the water source, and suggested modification of this
definition to state that groundwater is usually the primary source of
water, since some perennial streams are fed by snow melt rather than
groundwater. Another commenter stated that this definition should
recognize that some perennial streams appear to be intermittent because
of surface and subsurface flows in areas of karst topography.
We acknowledge that in some parts of the country, some perennial
streams are fed solely by snowmelt. For simplicity, we have not
included snowmelt since a large majority of perennial streams have
groundwater as the primary source of hydrology. When determining
whether a particular stream segment is perennial, district engineers
should consider the source of hydrology and the normal circumstance of
that hydrology. They will make these determinations on a case-by-case
basis. District engineers can account for karst topography and other
geological features when identifying perennial streams on a case-by-
case basis. It is not necessary to modify this definition to account
for such geological features.
The definition is adopted as proposed.
Practicable. We proposed to move this definition from the current
``mitigation'' general condition (GC 20) to the ``Definitions'' section
of the NWPs. One commenter suggested that this definition should be
modified to include consideration of the availability of suitable
locations and constructability, for the purposes of mitigation.
While we agree that these are factors involved with selecting
mitigation sites, the term ``practicable'' applies to more than
mitigation. The definition is adopted as proposed.
Pre-construction notification. We did not receive any comments on
the proposed definition. The definition is adopted as proposed.
Preservation. We proposed 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 Wetlands 2006: Two Years of Progress
Implementing the President's Goal.'' One commenter expressed concern
with the usage of ``aquatic resources'' in the definition because it is
too expansive and should be defined and limited to waters of the United
States.
Compensatory mitigation projects involving preservation may include
areas that are not waters of the United States, such as non-wetland
riparian areas next to streams or wetlands that are not subject to
Clean Water Act jurisdiction. This definition is adopted as proposed.
Re-establishment. We proposed 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.'' One commenter suggested the definition should
indicate re-establishment is a form of restoration. We do not believe
that such clarification is necessary, since it is addressed by the
definition for restoration. The definition is adopted as proposed.
Rehabilitation. We proposed 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.'' One commenter
suggested the definition should state rehabilitation is a form of
restoration. We do not believe that such clarification is necessary,
since it is addressed by the definition for restoration. The definition
is adopted as proposed.
Restoration. We proposed 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.'' We did not
receive any comments on the proposed definition. The definition is
adopted as proposed.
Riffle and pool complex. We did not propose any changes to this
definition. One commenter said that a riffle and pool complex has a
reoccurring pattern of riffles and pools, and is not limited to a
single riffle and pool. One commenter stated that this definition
should address steep gradients that are not conducive to forming riffle
and pool complexes. One commenter said that riffle and pool complexes
are too common to be a special aquatic site.
The definition of this term was taken from 40 CFR 230.45. District
engineers will use their judgment to identify riffle and pool complexes
at project sites and to distinguish between riffle and pool complexes
(which are found in areas of moderate grades) and step-pool complexes
(which are found in areas with steep grades, where the stream bed
material consists mostly of boulders and large rocks). The definition
is adopted as proposed.
Riparian areas. We proposed 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. Two commenters objected to replacing the
definition of ``vegetated buffers'' with a definition of ``riparian
areas'' and said the terms are not interchangeable. One commenter
supported the proposed change. Another commenter said that this
definition does not match the definition developed by the National
Research Council, and should be revised accordingly. Five commenters
said that the use of riparian areas should be limited to areas adjacent
to streams and other waters of the United States, other than wetlands.
They said that the definition implies wetlands have riparian areas due
to the use of the words ``lands'' and ``waterbody,'' which includes
wetlands by definition. Three commenters requested that the Corps
acknowledge that not all riparian areas are jurisdictional. One
commenter said that this definition should exclude intermittent and
ephemeral streams as waterbodies.
We maintain that use of the term ``riparian areas'' is most
appropriate, because it is the current term used to categorize the
areas that meet the criteria in this definition. We also acknowledge
that this definition does not contain all the concepts provided in the
National Research Council's definition, but we have tried to provide
[[Page 11175]]
a simpler definition for use in the NWP program. We have modified this
definition to clarify that lands next to wetlands are not riparian
areas and to be consistent with the definition of ``waterbody.'' We
acknowledge that not all riparian areas are subject to Clean Water Act
jurisdiction, but it is not necessary to state that fact in this
definition. However, the use of jurisdictional and non-jurisdictional
riparian areas as compensatory mitigation is a legitimate method to
provide compensatory mitigation for certain NWP activities. Riparian
areas may be established and maintained next to intermittent streams,
but in arid regions it may not be practicable to establish and maintain
those areas next to ephemeral streams because there may not be
sufficient water to sustain plant communities in those areas. The
definition is adopted with the modification discussed above.
Shellfish seeding. We have added a definition of this term. This
definition was derived from the definition provided in the preamble
discussion for the September 26, 2006, proposal (see 71 FR 56275).
Single and complete project. We did not propose any changes to this
definition. One commenter suggested that the district engineer be
allowed to use multiple NWPs for projects that cross separate
waterways. One commenter requested the definition be expanded to
include phased projects.
The definition already allows the district engineer the ability to
use multiple NWPs on separate waterways. Individual phases of phased
projects can be considered as single and complete projects only if they
have independent utility and they satisfy the requirements of the
specific NWP. We have revised the wording of this definition slightly
to further clarify that single and complete projects must have
independent utility and to further clarify how multiple stream
crossings for linear projects are treated. (See also the discussion of
new general condition 28, Single and Complete Project, above.) The
definition is adopted as modified.
Stormwater management. No comments were received on this
definition. The definition is adopted as proposed.
Stormwater management facilities. We did not propose any changes to
this definition. One commenter said that this definition is too
restrictive. The definition does list examples of facilities and some
of their roles but not in an exclusive manner. The definition is
adopted as proposed.
Stream bed. We did not propose any changes to this definition. No
comments were received on this definition. The definition is adopted as
proposed.
Stream channelization. We proposed to simplify this definition, by
generally considering man-made changes to a stream's course, condition,
capacity, or location to be stream channelization activities. One
commenter fully supported the definition. One commenter requested
clarification that mitigation projects involving a ``natural channel
design'' do not constitute ``stream channelization.'' Four commenters
stated that many accepted techniques of bank stabilization may not
satisfy the definition. As a result, one commenter recommended removing
the word ``condition'' in order to allow minor changes to the bank.
Another suggested modifying this definition to state that additional
work undertaken to improve aquatic services or to increase the net
sinuosity is not stream channelization.
Compensatory mitigation projects involving stream restoration
activities normally would not be considered stream channelization,
since they should not substantially disrupt normal stream process. The
restoration activity should restore normal stream processes, based on
comparison to reference stream systems in the vicinity of the proposed
work. We acknowledge that some bank stabilization activities may result
in stream channelization. This definition does not prohibit minor
changes to the stream bank. As long as those changes are small, and do
not disrupt normal stream processes, they would not be considered as
stream channelization. District engineers will consider the overall net
impacts, including beneficial and adverse impacts, to the course,
condition, capacity or location of the stream when determining if a
project will have more than minimal impacts on normal stream processes.
One commenter suggested inserting ``natural'' to describe the
stream to exclude ditches from being considered a stream. District
engineers will determine on a case-by-case basis the type of waterbody
that is a stream. This definition is adopted as proposed.
Structure. We proposed to add this definition to the NWPs. One
commenter said that references should be made to the structures
included in NWPs 3 and 5 and that the definition ignores other common
structures like culverts and bridges. One commenter observed that the
definition involves examples that have fill. One commenter suggested
the definition be rewritten as: ``man-made feature constructed in an
area of regulated aquatic resources.''
Adding references to NWPs 3 and 5 in this definition is
unnecessary. The examples in this definition were adapted from 33 CFR
322.2(b) and are not intended to be a complete list. Bridges may
constitute structures, but bridges constructed over navigable waters
are authorized by the U.S. Coast Guard. Culverts may consist mostly of
fill material, in accordance with the definitions at 33 CFR 323.2. Our
intent is not to imply that structures must not involve fill, since the
construction of structures may also involve fill activities. We agree
that structures must be manmade and have added this qualifier to the
definition. The definition is adopted as modified.
Tidal wetland. We did not propose any changes to this definition.
One commenter stated that not all wetlands are waters of the United
States and suggested adding that certain vegetation is associated with
the wetland. One commenter stated the high tide line is not the spring
high tide line.
In the context of this definition, wetlands subject to the ebb and
flow of the tide are waters of the United States. We acknowledge that
the high tide line may include high tides other than spring high tides.
Therefore, we have modified this definition by removing the language
that discusses spring high tide lines. The definition is adopted as
modified.
Vegetated shallows. We did not propose any changes to this
definition. No comments were received on this definition. The
definition is adopted as proposed.
Waterbody. We proposed to modify this definition to clarify that a
waterbody is a jurisdictional water of the United States. We also
proposed to include a definition of ``ordinary high water mark'' in the
text of this definition. Five commenters said that the definition
should be changed to reflect recent judicial rulings that affect Clean
Water Act jurisdiction. They also stated that this term cannot be used
to exert jurisdiction over areas that are not subject to Section 404 of
the Clean Water Act.
As stated in the preamble to the September 26, 2006, Federal
Register notice, the purpose of this definition is not to identify
which waterbodies are jurisdictional, but to clarify how 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. We agree, and have clarified in the definition,
that only jurisdictional waters can be waterbodies for purposes of the
NWPs.
[[Page 11176]]
One commenter asked for a list of other indicators to identify a
waterbody and exert jurisdiction. One commenter requested that
``adjacent'' be defined. One commenter inquired how the loss of waters
calculation will be made when wetlands and waterbodies that are
considered a single aquatic unit.
It would not be appropriate to promulgate, through the NWP issuance
process, a list of indicators to be used to identify waterbodies
subject to regulatory jurisdiction. The term ``adjacent'' is defined at
33 CFR 328.3(c). District engineers will determine, on a case-by-case
basis, when waterbodies are separate for the purposes of identifying
single and complete projects. We note that, except in the case of
linear crossings (see definition of ``single and complete project''),
all losses of waters of the United States, whether separate water
bodies or not, are added together to determine whether an activity is a
single and complete project that meets the acreage thresholds. The
definition is adopted as proposed.
Administrative Requirements
Regulatory Flexibility Act
One commenter objected to the proposed certification for Regulatory
Flexibility Act compliance, and indicated that a Regulatory Impact
Analysis is necessary. This commenter stated that the Corps failed to
analyze the costs or other burdens that NWP impose on small entities,
and compare those costs or burdens to alternatives. The commenter also
said that the Corps needs to consider burdens placed on those small
entities that need to get individual permits, since the proposed NWPs
determine who qualifies for NWPs, as well as those who must get
individual permits. One commenter said that an initial regulatory
flexibility analysis must be provided for public comment, and stated
that the Corps must withdraw the proposed NWPs and make an initial
regulatory flexibility analysis available for public review and
comment.
Our Regulatory Flexibility Act certification was done in the
context of the statutory requirements underlying the NWP program: the
permit requirements under Section 404 of the Clean Water Act and
Section 10 of the Rivers and Harbors Act of 1899. The NWPs (or any
other general permits) can only authorize activities with minimal
individual and cumulative adverse effects on the environment; other
activities must obtain individual permits. Because the permitted
impacts are minimal, the burden on permittees for obtaining coverage
under the NWP is also low. Generally, permittees are required to submit
a pre-construction notification and adopt common sense, low-cost
practices to ensure that adverse effects are minimal. Larger projects
are also required to provide compensatory mitigation, but the scope of
mitigation is commensurate with the impacts of the project and usually
does not constitute a ``significant economic impact.'' Further, such
larger projects are less likely to be undertaken by small businesses.
We continue to believe that our certification that the NWPs will not
have a significant economic impact on a substantial number of small
entities is appropriate. As a result, a formal Regulatory Flexibility
Analysis is not required.
Unfunded Mandates
One commenter said that the Corps must provide a quantified
assessment of costs and benefits of the permits (rule), in accordance
with the Unfunded Mandates Reform Act. The costs of these permits
(mostly paperwork costs associated with filing pre-construction
notifications, estimated at 10 hours per pre-construction notification)
do not rise to the level of an unfunded mandate, as defined in the
statute. As a result, it is not necessary under UMRA to quantify the
costs and benefits of this action.
Paperwork Reduction Act
A commenter stated that the estimate of time required to prepare a
complete pre-construction notification is too low, because of the
requirement to submit a delineation of waters of the United States with
the pre-construction notification.
We believe the time estimates are accurate, because many activities
will not require a complex delineation of waters of the United States.
Most pre-construction notifications will have simple delineations
showing the locations of waters near the project. The estimated time is
an average for all projects.
Regional Conditioning of the Nationwide Permits
Concurrent with this Federal Register notice, district engineers
are issuing local public notices. In addition to the changes to some
NWPs and NWP conditions required by the Chief of Engineers, division
and district engineers may propose regional conditions or propose
revocation of NWP authorization for all, some, or portions of the NWPs.
Regional conditions may also be required by state or Tribal water
quality certification or for state Coastal Zone Management Act
consistency. District engineers will announce regional conditions or
revocations by issuing local public notices. 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/where.html#State by clicking on the appropriate
district office.
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.
[[Page 11177]]
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.
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, 69A Hagood Ave,
Charleston, SC 29403-5107.
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.
[[Page 11178]]
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.
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
These NWPs will increase the number of permittees who are required
to submit a pre-construction notification. The content of the pre-
construction notification is not changed from the current NWPs, but the
paperwork burden will increase because of the increased number of pre-
construction notifications 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 pre-construction notification of 10
hours, and an estimated 450 additional projects that will require pre-
construction notifications. Prospective permittees who are required to
submit a pre-construction notification 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 or submit the required information in a letter.
The total burden for filing pre-construction notifications is estimated
at 300,000 hours per year (10 hours times 30,000 projects per year
requiring pre-construction notification). In addition, we are adding a
requirement for existing aquaculture activities using NWP 48 that do
not require a pre-construction notification to instead file a short
report indicating basic information about the existing shellfish
production operation. The estimated burden for this new requirement is
1,800 hours per year (900 existing aquaculture facilities times 2 hours
per report). The information in the report is a subset of the
information required for a full pre-construction notification.
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 President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, we have determined
that this action is a ``significant regulatory action'' and it 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 issuance of NWPs does not have federalism
implications. We do not believe that the 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 NWPs will
not impose any additional substantive obligations on State or local
governments. Therefore, Executive Order 13132 does not apply to these
final NWPs.
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 statutes under which the Corps issues, reissues, or modifies
NWPs 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.
[[Page 11179]]
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 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 issued
today 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 decision documents that were prepared for each NWP. The NWPs issued
today are not expected to significantly increase cost or paperwork
burden for authorized activities (relative to the NWPs issued in 2002),
including those conducted by small businesses.
The costs for obtaining coverage under an NWP are low. We estimate
the average time to prepare and file a pre-construction notification,
for those activities where a pre-construction notification is required,
is 10 hours. We do not believe this constitutes a ``significant
economic impact'' on project proponents, including small businesses.
Another requirement of Section 404(e) of the Clean Water Act is
that general permits, including NWPs, 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. In addition to
the paperwork burden of filing a pre-construction notification, many
NWPs require that low-cost, common sense practices be used to minimize
adverse effects. These requirements also do not constitute
``significant economic impacts.''
After considering the economic impacts of these NWPs 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 these NWPs
will not impose substantially higher costs on small entities than those
of the previous 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 have issued several new
NWPs, and we are removing some limitations in existing NWPs and
replacing them with pre-construction notification requirements that
will allow the district 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.
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 NWPs issued today 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 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, the NWPs issued today are not subject to the requirements of
Sections 202 and 205 of the UMRA. For the same reasons, we have
determined that the 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
[[Page 11180]]
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 NWPs issued today are not subject to this Executive Order
because they are not economically significant as defined in Executive
Order 12866. In addition, these 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 NWPs issued today do not have tribal implications. They are
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. Corps districts are conducting government-to-
government consultation with Indian tribes to develop regional
conditions that help protect tribal rights and trust resources, and to
facilitate compliance with general condition 16, Tribal Rights.
Environmental Documentation
A decision document, which includes an environmental assessment and
Finding of No Significant Impact (FONSI), has been prepared for each
NWP. These 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.
The NWPs issued today 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 issuing new NWPs, modifying existing NWPs, and reissuing
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: March 1, 2007.
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.
[[Page 11181]]
41. Reshaping Existing Drainage Ditches.
42. Recreational Facilities.
43. Stormwater Management Facilities.
44. Mining Activities.
45. Repair of Uplands Damaged by Discrete Events.
46. Discharges in Ditches.
47. Pipeline Safety Program Designated Time Sensitive Inspections
and Repairs.
48. Existing Commercial Shellfish Aquaculture Activities.
49. Coal Remining Activities.
50. 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.
28. Single and Complete Project.
Further Information
Definitions.
Best management practices (BMPs).
Compensatory mitigation.
Currently serviceable.
Discharge.
Enhancement.
Ephemeral stream.
Establishment (creation).
Historic property.
Independent utility.
Intermittent stream.
Loss of waters of the United States.
Non-tidal wetland.
Open water.
Ordinary high water mark.
Perennial stream.
Practicable.
Pre-construction notification.
Preservation.
Re-establishment.
Rehabilitation.
Restoration.
Riffle and pool complex.
Riparian areas.
Shellfish seeding.
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 the
repair, rehabilitation, or replacement are authorized. This NWP
authorizes the repair, rehabilitation, or replacement of those
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.
(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 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) This NWP also authorizes temporary structures, fills, and work
necessary to conduct the maintenance activity. 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, access fills, or dewatering of construction sites.
Temporary fills must consist of materials, and be placed in a manner,
that will not be eroded by expected high flows. Temporary fills must be
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be
revegetated, as appropriate.
(d) 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, and
[[Page 11182]]
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 or 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. In wetlands, the top 6 to 12
inches of the trench should normally be backfilled with topsoil from
the trench. 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 or modification of outfall structures and
associated intake structures, where the effluent from the outfall is
authorized, conditionally authorized, or specifically exempted by, 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.
Utility lines: 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 pre-construction 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 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 inches 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.
Utility line substations: 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, in combination with all other activities
included in one single and complete project, does not result in the
loss of greater than \1/2\ acre of waters of the United States. This
NWP does not authorize discharges into non-tidal wetlands adjacent to
tidal waters of the United States to construct, maintain, or expand
substation facilities.
Foundations for overhead utility line towers, poles, and anchors:
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
[[Page 11183]]
a larger single pad) are used where feasible.
Access roads: This NWP authorizes the construction of access roads
for the construction and maintenance of utility lines, including
overhead power lines and utility line substations, in non-tidal waters
of the United States, provided the total discharge from a single and
complete project does 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 for access
roads. Access roads must be the minimum width necessary (see Note 2,
below). Access roads must be constructed so that the length of the road
minimizes any adverse effects on waters of the United States and must
be as near as possible to pre-construction contours and elevations
(e.g., at grade corduroy roads or geotextile/gravel roads). Access
roads constructed above pre-construction contours and elevations in
waters of the United States must be properly bridged or culverted to
maintain surface flows.
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.
This NWP also authorizes temporary structures, fills, and work
necessary to conduct the utility line activity. 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, access fills, or dewatering of construction sites.
Temporary fills must consist of materials, and be placed in a manner,
that will not be eroded by expected high flows. Temporary fills must be
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be
revegetated, as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if any of the following criteria are met: (1) The activity involves
mechanized land clearing in a forested wetland for the utility line
right-of-way; (2) a section 10 permit is required; (3) the utility line
in waters of the United States, excluding overhead lines, exceeds 500
feet; (4) the utility line is placed within a jurisdictional area
(i.e., water of the United States), and it runs parallel to a stream
bed that is within that jurisdictional area; (5) discharges that result
in the loss of greater than \1/10\-acre of waters of the United States;
(6) permanent access roads are constructed above grade in waters of the
United States for a distance of more than 500 feet; or (7) permanent
access roads are constructed in waters of the United States with
impervious materials. (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 pre-construction notification 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: Access roads used for both construction and maintenance
may be authorized, provided they meet the terms and conditions of
this NWP. Access roads used solely for construction of the utility
line must be removed upon completion of the work, accordance with
the requirements for temporary fills.
Note 3: 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 (see NWP 15).
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 activity is no more than 500 feet in length along the bank,
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) The activity does not involve discharges of dredged or fill
material into special aquatic sites, unless this criterion is waived in
writing by the district engineer;
(e) 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 water of
the United States;
(f) 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, (g) 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 also authorizes temporary structures, fills, and work
necessary to construct the linear transportation project. 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, access fills, or dewatering of construction
sites. Temporary fills must consist of materials, and be placed in a
manner, that will not be eroded by expected high flows. Temporary fills
must be removed in their entirety and the affected areas returned to
pre-construction elevations. The areas affected by temporary fills must
be revegetated, as appropriate.
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.
[[Page 11184]]
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The loss of waters of the United States exceeds \1/10\ acre; 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 or
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 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 a separate 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. This NWP also authorizes activities required for
the cleanup of oil releases in waters of the United States from
electrical equipment that are governed by EPA's polychlorinated
biphenyl spill response regulations at 40 CFR part 761. (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, or are currently being processed as part of an integrated
permit processing procedure, 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.
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) the activity is conducted in a
special aquatic site, including coral reefs and wetlands. (See general
condition 27.) If condition 1 above is triggered, the permittee cannot
commence the activity until informed by the district engineer that
compliance with the ``Historic Properties'' general condition is
completed. (Sections 10 and 404)
Note 1: 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 Department of the Army permit is required for
vessel disposal in waters of the United States, separate
authorization will be required.
Note 2: Compliance with general condition 17, Endangered
Species, and general condition 18, Historic Properties, is required
for all NWPs. The concern with historic properties is emphasized in
the notification requirements for this NWP because of the likelihood
that submerged vessels may be historic properties.
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
[[Page 11185]]
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. As of the date
of issuance of this NWP, agencies with approved categorical
exclusions are the: Bureau of Reclamation, Federal Highway
Administration, and U.S. Coast Guard. Activities approved for
authorization under this NWP as of the date of this notice are found
in Corps Regulatory Guidance Letter 05-07, which is available at:
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/rglsindx.htm.
Any future approved categorical exclusions will be announced in
Regulatory Guidance Letters and posted on this same Web site.
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 an Indian Tribe or
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, enhancement, and establishment of tidal and non-tidal
wetlands and riparian areas and the restoration and enhancement of non-
tidal streams and other 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 authorizes the relocation of non-tidal waters, including
non-tidal wetlands and streams, on the project site provided there are
net increases in aquatic resource functions and services.
Except for the relocation of non-tidal waters on the project site,
this NWP does not authorize the conversion of a stream or natural
wetlands to another aquatic habitat type (e.g., stream to wetland or
vice versa) or uplands. This NWP does not authorize stream
channelization. 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 or USDA Technical Service
Provider pursuant to NRCS Field Office Technical Guide standards; 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
[[Page 11186]]
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 are applicable to that type of land at the
time. 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, or a project description, including project
plans and location map; (2) the NRCS or USDA Technical Service Provider
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. The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
(see general condition 27), except for the following activities:
(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 or USDA Technical Service Provider
pursuant to NRCS Field Office Technical Guide standards; 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 must 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, a multiple unit
residential development, or a residential subdivision. 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, including
streams to preclude water quality degradation due to erosion and
sedimentation. This NWP does not authorize the construction of new
dikes, roads, water control structures, or similar features 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. Some such activities may qualify for an
exemption under Section 404(f) of the Clean Water Act (see 33 CFR
323.4).
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. 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 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
[[Page 11187]]
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 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 otherwise 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
[[Page 11188]]
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 pre-
construction elevations. The affected areas must also be revegetated,
as appropriate. This permit does not authorize the use of cofferdams to
dewater wetlands or other aquatic areas to change their use. Structures
left in place after construction is completed 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 restoration plan showing how all temporary fills and
structures will be removed and the area restored to pre-project
conditions. (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.
Notification: The permittee must submit a pre-construction
notification to the district engineer once during the period that this
NWP is valid, and the NWP will then authorize discharges of dredge or
fill material at an existing operation for the permit term, 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 in the form 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);
(b) The U.S. Forest Service under its Burned-Area Emergency
Rehabilitation Handbook (FSH 509.13);
(c) The Department of the Interior for wildland fire management
burned area emergency stabilization and rehabilitation (DOI Manual part
620, Ch. 3);
(d) The Office of Surface Mining, or states with approved programs,
for abandoned mine land reclamation activities under Title IV of the
Surface Mining Control and Reclamation Act (30 CFR subchapter R), where
the activity does not involve coal extraction; or
(e) The Farm Service Agency under its Emergency Conservation
Program (7 CFR part 701).
In general, the prospective permittee should wait until the
district engineer issues an NWP verification before proceeding with the
watershed protection and rehabilitation activity. However, in cases
where there is an unacceptable hazard to life or a significant loss of
property or economic hardship will occur, the emergency watershed
protection and rehabilitation activity may proceed immediately and the
district engineer will consider the information in the pre-construction
notification any comments received as a result of agency coordination
to decide whether the NWP 37 authorization should be modified,
suspended, or revoked in accordance with the procedures at 33 CFR
330.5.
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,
[[Page 11189]]
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 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). This NWP authorizes 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).
41. Reshaping Existing Drainage Ditches. Discharges of dredged or
fill material into non-tidal waters of the United States, excluding
non-tidal 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 by regrading the drainage ditch with gentler
slopes, which can reduce erosion, increase growth of vegetation, and
increase uptake of nutrients and other substances by vegetation. The
reshaping of the ditch cannot increase drainage capacity beyond the
original as-built capacity nor can it expand the area drained by the
ditch as originally constructed (i.e., the capacity of the ditch must
be the same as originally constructed and it cannot drain additional
wetlands or other waters of the United States). Compensatory mitigation
is not required because the work is designed to improve water quality.
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 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.
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.) Maintenance activities do not require pre-construction
notification if they are limited to restoring the original design
capacities of the stormwater management facility. (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 waters of the United States. This
NWP does not authorize discharges into
[[Page 11190]]
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)
45. Repair of Uplands Damaged by Discrete Events. This NWP
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 of damage, unless
this condition is waived in writing 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
damaged upland area and should not significantly alter the pre-existing
bottom contours of the waterbody.
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.)
46. Discharges in Ditches. Discharges of dredged or fill material
into non-tidal ditches that are: (1) Constructed in uplands, (2)
receive water from an area determined to be a water of the United
States prior to the construction of the ditch, (3) divert water to an
area determined to be a water of the United States prior to the
construction of the ditch, and (4) 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 constructed in streams or other waters of the United
States, or in streams that have been relocated in uplands. This NWP
does not authorize discharges of dredged or fill material that increase
the capacity of the ditch and drain those areas determined to be waters
of the United States prior to construction of the ditch.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 27.) (Section 404)
47. 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 fills
must be removed in their entirety and the affected areas returned to
pre-construction elevations. The affected areas must be revegetated, as
appropriate;
(d) In wetlands, the top 6 to 12 inches 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)
Note: Division engineers may modify this NWP by adding regional
conditions to protect the aquatic environment, as long as those
regional conditions do not require pre-construction notification or
other actions that would delay time sensitive inspections and
repairs. Examples of appropriate regional conditions include best
management practices.
48. Existing Commercial Shellfish Aquaculture Activities. This NWP
authorizes the installation of buoys, floats, racks, trays, nets,
lines, tubes, containers, and other structures necessary for the
continued operation of the existing commercial 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 new operations or the expansion of the
project area for an existing commercial shellfish aquaculture activity.
This NWP does not authorize the cultivation of new species (i.e.,
species not previously cultivated in the waterbody). This NWP
[[Page 11191]]
does not authorize attendant features such as docks, piers, boat ramps,
stockpiles, staging areas, or the deposition of shell material back
into waters of the United States as waste.
Reporting: For those activities that do not require pre-
construction notification, the permittee must submit a report to the
district engineer that includes the following information: (1) The size
of the project area for the commercial shellfish aquaculture activity
(in acres); (2) the location of the activity; (3) a brief description
of the culture method and harvesting method(s); (4) the name(s) of the
cultivated species; and (5) whether canopy predator nets are being
used. This is a subset of the information that would be required for
pre-construction notification. This report may be provided by letter or
using an optional reporting form provided by the Corps. Only one report
needs to be submitted during the period this NWP is valid, as long as
there are no changes to the operation that require pre-construction
notification. The report must be submitted to the district engineer
within 90 days of the effective date of this NWP.
Notification: The permittee must submit a pre-construction
notification to the district engineer if: (1) The project area is
greater than 100 acres; or (2) there is any reconfiguration of the
aquaculture activity, such as relocating existing operations into
portions of the project area not previously used for aquaculture
activities; or (3) there is a change in species being cultivated; or
(4) there is a change in culture methods (e.g., from bottom culture to
off-bottom culture); or (5) dredge harvesting, tilling, or harrowing 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.
49. 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, or are currently being
processed as part of an integrated permit processing procedure, by the
Department of Interior (DOI) Office of Surface Mining (OSM), or by
states with approved programs under Title IV or Title V of the Surface
Mining Control and Reclamation Act of 1977. Areas previously mined
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 plus any unmined area necessary for the reclamation of the
remined area.
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)
50. 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, or are currently being processed as part of
an integrated permit processing procedure, 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.
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 and receive written authorization
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)
Note: Coal preparation and processing activities outside of the
mine site may be authorized by NWP 21.
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 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., through excavation,
fill, or downstream smothering 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 48.
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
[[Page 11192]]
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 or manage high flows. 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 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
elevations. The affected areas must be revegetated, as appropriate.
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) Federal agencies should follow their own procedures for
complying with the requirements of the ESA. Federal permittees must
provide the district engineer with the appropriate documentation to
demonstrate compliance with those requirements.
(c) 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 might 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 activity
``may affect'' or will have ``no effect'' to listed species and
designated critical habitat and will notify the non-Federal applicant
of the Corps' determination within 45 days of receipt of a complete
pre-construction notification. In cases where the non-Federal applicant
has identified listed species or critical habitat that might be
affected or is in the vicinity of the project, and has so notified the
Corps, the applicant 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.
(d) 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.
(e) 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) In cases where the district engineer
determines that the activity may affect properties listed, or eligible
for listing, in the National Register of Historic Places, the activity
is not authorized, until the requirements of Section 106 of the
National Historic Preservation Act (NHPA) have been satisfied.
(b) Federal permittees should follow their own procedures for
complying with the requirements of Section 106 of the National Historic
Preservation Act. Federal permittees must provide the district engineer
with the appropriate documentation to demonstrate compliance with those
requirements.
(c) Non-federal permittees must submit a pre-construction
notification to the district engineer if the authorized activity may
have the potential to cause effects to any historic properties listed,
determined to be eligible for listing on, or potentially eligible for
listing on the National Register of Historic Places, including
previously unidentified properties. For such activities, the pre-
construction notification must state which historic properties may be
affected by the proposed work or include a vicinity map indicating the
location of the historic properties or the potential for the presence
of historic properties. Assistance regarding information on the
location of or potential for the presence of historic resources can be
sought from the State
[[Page 11193]]
Historic Preservation Officer or Tribal Historic Preservation Officer,
as appropriate, and the National Register of Historic Places (see 33
CFR 330.4(g)). The district engineer shall make a reasonable and good
faith effort to carry out appropriate identification efforts, which may
include background research, consultation, oral history interviews,
sample field investigation, and field survey. Based on the information
submitted and these efforts, the district engineer shall determine
whether the proposed activity has the potential to cause an effect on
the historic properties. Where the non-Federal applicant has identified
historic properties which the activity may have the potential to cause
effects and so notified the Corps, the non-Federal applicant shall not
begin the activity until notified by the district engineer either that
the activity has no potential to cause effects or that consultation
under Section 106 of the NHPA has been completed.
(d) The district engineer will notify the prospective permittee
within 45 days of receipt of a complete pre-construction notification
whether NHPA Section 106 consultation is required. Section 106
consultation is not required when the Corps determines that the
activity does not have the potential to cause effects on historic
properties (see 36 CFR 800.3(a)). If NHPA section 106 consultation is
required and will occur, the district engineer will notify the non-
Federal applicant that he or she cannot begin work until Section 106
consultation is completed.
(e) Prospective permittees should be aware that section 110k of the
NHPA (16 U.S.C. 470h-2(k)) prevents the Corps from granting a permit or
other assistance to an applicant who, with intent to avoid the
requirements of Section 106 of the NHPA, has intentionally
significantly adversely affected a historic property to which the
permit would relate, or having legal power to prevent it, allowed such
significant adverse effect to occur, unless the Corps, after
consultation with the Advisory Council on Historic Preservation (ACHP),
determines that circumstances justify granting such assistance despite
the adverse effect created or permitted by the applicant. If
circumstances justify granting the assistance, the Corps is required to
notify the ACHP and provide documentation specifying the circumstances,
explaining the degree of damage to the integrity of any historic
properties affected, and proposed mitigation. This documentation must
include any views obtained from the applicant, SHPO/THPO, appropriate
Indian tribes if the undertaking occurs on or affects historic
properties on tribal lands or affects properties of interest to those
tribes, and other parties known to have a legitimate interest in the
impacts to the permitted activity on historic properties.
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, 44, 49, and 50 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 results 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) For losses of streams or other open waters that require pre-
construction notification, the district engineer may require
compensatory mitigation, such as stream restoration, to ensure that the
activity results in minimal adverse effects on the aquatic environment.
(e) 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 resulting in the loss of greater than \1/2\ acre
of waters of the United States, even if compensatory 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 the NWPs.
(f) 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 and/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
[[Page 11194]]
compensatory mitigation for wetland losses.
(g) Permittees may propose the use of mitigation banks, in-lieu fee
arrangements or separate activity-specific compensatory mitigation. In
all cases, the mitigation provisions will specify the party responsible
for accomplishing and/or complying with the mitigation plan.
(h) 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 a presumption of concurrence must
occur (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.''
-----------------------------------------------------------------------
(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 calendar days of the date of receipt and, as a
general rule, will 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 calendar 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, if the permittee was required to notify the Corps pursuant to
general condition 17 that listed species or critical habitat might be
affected or in the vicinity of the project, or to notify the Corps
pursuant to general condition 18 that the activity may have the
potential to cause effects to historic properties, the permittee cannot
begin the activity until receiving written notification from the Corps
that is ``no effect'' on listed species or ``no potential to cause
effects'' on historic properties, or that any consultation required
under Section 7 of the Endangered Species Act (see 33 CFR 330.4(f))
and/or Section 106 of the National Historic Preservation (see 33 CFR
330.4(g)) is completed. Also, work cannot begin under NWPs 21, 49, or
50 until the permittee has received written approval from the Corps. If
the proposed activity requires a written waiver to exceed specified
limits of an NWP, the permittee cannot begin the activity until the
district engineer issues the waiver. If the district or division
engineer notifies the permittee in writing that an individual permit is
required within 45 calendar 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
[[Page 11195]]
determine that the adverse effects of the project will be minimal and
to determine the need for 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 waters of the United States.
Furthermore, the 45 day period will not start until the delineation has
been submitted to or completed by 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. As an alternative, the prospective
permittee may submit a conceptual or detailed mitigation plan.
(6) 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, for non-Federal applicants the
PCN must include the name(s) of those endangered or threatened species
that might be affected by the proposed work or utilize the designated
critical habitat that may be affected by the proposed work. Federal
applicants must provide documentation demonstrating compliance with the
Endangered Species Act; and
(7) For an activity that may affect a historic property listed on,
determined to be eligible for listing on, or potentially eligible for
listing on, the National Register of Historic Places, for non-Federal
applicants 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. Federal applicants must provide documentation
demonstrating compliance with Section 106 of the National Historic
Preservation Act.
(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: (1) 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.
(2) For all NWP 48 activities requiring pre-construction
notification and for other NWP 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 in cases where there is an unacceptable hazard
to life or a significant loss of property or economic hardship will
occur. 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.
(3) In cases of where the prospective permittee is not a Federal
agency, the district engineer will provide a response to NMFS within 30
calendar days of receipt of any Essential Fish Habitat conservation
recommendations, as required by Section 305(b)(4)(B) of the Magnuson-
Stevens Fishery Conservation and Management Act.
(4) Applicants are encouraged to provide the Corps multiple copies
of pre-construction notifications to expedite agency coordination.
(5) For NWP 48 activities that require reporting, the district
engineer will provide a copy of each report within 10 calendar days of
receipt to the appropriate regional office of the NMFS.
(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 requires a
PCN and will result in a loss of greater than \1/10\ acre of wetlands,
the prospective permittee should submit a mitigation proposal 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 calendar 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.
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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 plan 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 plan 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.
28. Single and Complete Project. The activity must be a single and
complete project. The same NWP cannot be used more than once for the
same single and complete project.
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 adverse environmental effects
on surface water quality resulting from development. BMPs are
categorized as structural or non-structural.
Compensatory mitigation: The restoration, establishment (creation),
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.
Discharge: The term ``discharge'' means any discharge of dredged or
fill material and any activity that causes or results in such a
discharge.
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 site. Establishment
results in a gain in aquatic resource area.
Historic Property: Any prehistoric or historic district, site
(including archaeological site), building, structure, or other object
included in, or eligible for inclusion in, the National Register of
Historic Places maintained by the Secretary of the Interior. This term
includes artifacts, records, and remains that are related to and
located within such properties. The term includes properties of
traditional religious and cultural importance to an Indian tribe or
Native Hawaiian organization and that meet the National Register
criteria (36 CFR part 60).
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 are permanently adversely affected by filling, 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 jurisdictional 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 pre-construction 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 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
can be determined. 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.
Ordinary High Water Mark: An ordinary high water mark 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)).
[[Page 11197]]
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 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 streams,
lakes, and estuarine-marine shorelines. Riparian areas are transitional
between terrestrial and aquatic ecosystems, through which surface and
subsurface hydrology connects waterbodies with their adjacent uplands.
Riparian areas provide a variety of ecological functions and services
and help improve or maintain local water quality. (See general
condition 20.)
Shellfish seeding: The placement of shellfish seed and/or suitable
substrate to increase shellfish production. Shellfish seed consists of
immature individual shellfish or individual shellfish attached to
shells or shell fragments (i.e., spat on shell). Suitable substrate may
consist of shellfish shells, shell fragments, or other appropriate
materials placed into waters for shellfish habitat.
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. A single and complete project must
have independent utility (see definition). For linear projects, a
``single and complete project'' is all crossings of a single water of
the United States (i.e., a single waterbody) at a specific location.
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 manmade
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, which is defined at 33 CFR
328.3(d).
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
[[Page 11198]]
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)). 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. E7-3960 Filed 3-9-07; 8:45 am]
BILLING CODE 3710-92-P