[Federal Register Volume 61, Number 241 (Friday, December 13, 1996)]
[Notices]
[Pages 65874-65922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31645]
[[Page 65873]]
_______________________________________________________________________
Part VII
Department of Defense
_______________________________________________________________________
Department of the Army
_______________________________________________________________________
Corps of Engineers
_______________________________________________________________________
Final Notice of Issuance, Reissuance, and Modification of Nationwide
Permits; Notice
Federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 /
Notices
[[Page 65874]]
DEPARTMENT OF DEFENSE
Department of the Army
Corps of Engineers
Final Notice of Issuance, Reissuance, and Modification of
Nationwide Permits
AGENCY: Army Corps of Engineers, DOD.
ACTION: Final Notification.
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SUMMARY: The Corps of Engineers is reissuing the existing nationwide
permits (NWP) and conditions, some with modifications, and issuing two
new NWPs. As with all general permits, NWPs include specific project
limitations which ensure that adverse effects will be no more than
minimal and that the aquatic environment will be protected. At the same
time, if a permit applicant can design a project in a way that meets
the limitations of the NWP, the Corps will provide an expedited review
and decision for the project. General permits, including NWPs, are an
essential part of the Corps regulatory program, and provide us with the
method we use to authorize 80% of the activities we regulate. An
effective NWP program is essential to administration of the Corps
regulatory program. The Corps, however, is increasingly aware of the
concerns regarding the level of adverse effects being authorized by
NWPs, particularly NWP 26. As a result, we have taken a critical look
at the NWP program to better ensure that projects that truly have
minimal impacts will continue to be authorized, while ensuring that
only minimal individual and cumulative adverse effects will result from
the Corps authorizing projects under the program. For example, we have
made substantial changes to NWP 26, with an ultimate approach of more
clearly defining the activities regulated through activity-specific
replacement general permits. The interim changes to NWP 26 we have made
will greatly increase environmental protection while increasing the
review time for a relatively small percentage of the total number of
activities authorized each year. We have also become increasingly aware
of the concerns that NWPs, particularly NWP 26, need to be modified to
reflect regional differences in aquatic ecosystem functions and values
and to more effectively reflect the desire of the states to develop
partnerships to protect the aquatic environment. We, therefore, have
directed our districts to carefully review all of the NWPs,
particularly NWP 26, to revoke applicable NWPs in high value aquatic
ecosystems, and to add regional conditions to limit the applicability
of the NWPs to ensure that no more than minimal adverse effects occur
in each district. We are also directing the districts to work with the
states to develop mutually agreeable conditions that will result in a
greater level of state Section 401 water quality certifications being
issued for the NWPs. We are directing our districts to develop local
procedures with their counterparts in the U.S. Fish and Wildlife
Service and National Marine Fisheries Service which will ensure that
the Corps bases its ``affect'' and ``jeopardy'' decisions on the best
available information. We are also initiating formal programmatic
consultation under section 7 of the Endangered Species Act regarding
the procedures associated with administering the NWP program. We
believe that the changes described above, along with many others we
have included in this reissuance of the NWPs, will substantially
increase protection of the aquatic environment, ensure that no more
than minimal adverse effects will occur, and maintain the regulatory
flexibility necessary to administer a reasonable regulatory program.
EFFECTIVE DATE: February 11, 1997.
ADDRESS: Information can be obtained by writing to: Office of the Chief
of Engineers, ATTN: CECW-OR, 20 Massachusetts Avenue NW., Washington,
DC 20314-1000.
FOR FURTHER INFORMATION: Contact Mr. Sam Collinson or Mr. John Studt,
at (202) 761-0199 or access the U.S. Army Corps of Engineers Regulatory
Home Page at: http//:wetland.usace.mil/
SUPPLEMENTARY INFORMATION:
Background
The White House Office on Environmental Policy announced the
President's Wetlands Plan on August 24, 1993. The plan sets forth a
comprehensive package of improvements to Federal wetlands protection
programs. A major goal of the plan is that the programs be fair,
flexible, and effective. To achieve this goal, the Corps regulatory
program must continue to provide effective protection for wetlands and
other aquatic resources, while conveying to the public a clear
understanding of regulatory requirements. In its implementation, the
regulatory program must be administratively efficient, flexible yet
predictable, and avoid unnecessary impacts to private property, the
regulated public, and the environment.
There were 37 existing nationwide permits. Thirty-six of the NWPs
were published in the November 22, 1991, Federal Register (FR) at 33
CFR part 330, appendix A (56 FR 59110). They became effective on
January 21, 1992, and expire on January 21, 1997. One additional NWP,
the Single-Family Housing NWP (NWP 29), was proposed in the Federal
Register on July 27, 1995, (60 FR 38650) and became effective on
September 25, 1995. NWP 29 would expire on September 25, 2000.
In the preamble of the Final Rule at 33 CFR part 330, as published
in the Federal Register (56 FR 59110) on November 22, 1991, we
indicated that upon expiration of the existing NWPs, we would issue the
NWPs separately from the regulations governing their use and rescind 33
CFR part 330, appendix A. The NWPs will now be published using the
procedures adopted on November 22, 1991, for issuance, re-issuance,
modification, and revocation of NWPs (see 33 CFR 330.5). The NWPs will
no longer appear in the Code of Federal Regulations (CFR) but will be
published in the Federal Register and announced, with regional
conditions, in the public notices issued by Corps district offices, and
included on the Internet.
We are reissuing all the existing NWPs; however, several have been
modified, as have several NWP conditions as published in the Federal
Register (56 FR 59110) on November 22, 1991. Many of the proposed
clarifications are a result of the modification of the definition of
``discharge of dredged material'' at 33 CFR 323.2(d), as published in
the Federal Register (58 FR 45008) on August 25, 1993 (i.e., the
excavation rule). The definition was revised to include the following
language that clarified which excavation activities are regulated:
``(iii) Any addition, including any redeposit, of dredged material,
including excavated material, into waters of the United States which is
incidental to any activity, including mechanized landclearing,
ditching, channelization, or other excavation'' (See 33 CFR 323.2(d)
for the complete definition of ``discharge of dredged material'').
We are also issuing, in accordance with the President's Wetlands
Plan, two new NWPs to authorize those additional regulated activities
with minimal adverse effects that resulted from the excavation rule.
These new NWPs include: NWP 30, Moist Soil Management for Wildlife; and
NWP 31, Maintenance of Existing Flood Control Projects.
The Corps believes that, when the changes to the nationwide permits
and their conditions are considered as a whole, the average approval
time for
[[Page 65875]]
projects requiring a Department of the Army permit will not
substantially change. However, the individual approval time for some
projects will be longer while for others it may be shorter. In
addition, we believe that the approval time for a vast majority of
activities authorized by nationwide permits will not be affected by
these changes.
We have made a final determination that this action does not
constitute a major Federal action significantly affecting the quality
of the human environment. Environmental documentation and a Finding of
No Significant Impact (FONSI) have been prepared for each NWP. This
documentation includes an environmental assessment and, where relevant,
a section 404(b)(1) Guidelines compliance review. Copies of these
documents are available for inspection at the office of the Chief of
Engineers, at each Corps district office, and on the Corps Home Page at
http://wetland.usace.mil/. Based on these documents the Corps has
determined that the proposed NWPs comply with the requirements for
issuance under general permit authority.
The 36 nationwide permits issued or reissued effective January 21,
1991 will expire on January 21, 1997; however, all of these permits are
being reissued with an effective date of February 11, 1997. There will
be a period between January 21, 1997 and February 11, 1997 where these
36 NWPs will not be in effect. Between today and February 11, 1997 the
permittee may submit Pre-construction Notifications (PCNs) required by
the terms of certain NWPs, in accordance with the NWP ``Notification''
General Condition. However, the 30 day (45 day for NWP 26) time period
in the notification condition will not start until February 11, 1997.
Further, Corps districts will review PCNs during this period and will
verify projects as soon as possible after February 11, 1997. Nationwide
Permit 29, Single Family Housing, is revoked and reissued with new
conditions on the same effective date, February 11, 1997, and
therefore, there will not be a period of time where NWP 29 is not in
effect. Permittees may submit PCNs at any time, however, the 30 day
time period for the reissued NWP 29 will not start until February 11,
1997. In addition, two new nationwide permits, NWP 30 and 31, are being
issued with the same effective date. All of the issued and reissued
nationwide permits, with the exception of NWP 26, will expire in 5
years on February 11, 2002 unless otherwise modified, reissued or
revoked. Nationwide Permit 26 will automatically expire 2 years from
today's date unless otherwise modified or revoked.
Many of the nationwide permits have been modified in the course of
reissuance. The continued adequacy of an authorization under a
nationwide permit, following its expiration, is dependant upon whether
that permit has been reissued with or without modification. A
nationwide permit is considered to have been modified if either the
permit scope or limitations have been modified, or if one of the
nationwide permit conditions which applies directly to the activity has
been modified. In those cases where the nationwide permit is being
reissued without change, and General Condition 4 does not directly
apply, the verification remains valid as issued. In those cases where
the previously used nationwide permit is being reissued with
modification (NWPs 6, 12, 14, 21, 26, 27, 32) or General Condition 4
directly applies to the activity, activities which commence (i.e.,
under construction, or are under contract to commence) in reliance upon
the earlier NWP, prior to January 21, 1997, will remain authorized
provided the activity is completed prior to January 21, 1998, unless
discretionary authority has been exercised on a case-by-case basis to
modify, suspend, or revoke the authorization in accordance with 33 CFR
330.4(e) and 33 CFR 330.5 (c) or (d). Activities completed under the
authorization of a nationwide permit that was in effect at the time the
activity was completed continue to be authorized by that nationwide
permit. DE's will, in accordance with 33 CFR 330.6(a), provide
applicants with the above information in their responses to requests
for verification of compliance with nationwide permits. These
procedures are specified in 33 CFR 330.6(b).
Discussion of Public Comments and Changes
I. Overview
Approximately 4,000 comment documents addressing the proposed
nationwide permits were received in response to the June 17, 1996,
Federal Register announcement (61 FR 30780), district public notices,
one national public hearing, and 6 regional public hearings. The Corps
has reviewed and considered all the comments. Many of the comments
expressed support for the nationwide permit program while many others
opposed the program. Most comment letters provided permit specific
comments, providing information and recommending changes to both the
permits and permit conditions. A few commenters provided comments
specific to 33 CFR part 330, our regulations governing implementation
of the nationwide permit program. These comments were also reviewed and
have been made a part of the record. However, no changes have been
proposed for 33 CFR part 330 and, therefore, it is not being revised at
this time.
II. General Comments
Regionalization of Nationwide Permits
The Corps proposed a process to regionalize the nationwide permits,
particularly NWP 26, in order to reflect the differences in aquatic
ecosystem functions and values that exist across the country. We
envisioned a process where we would solicit the views of the various
stakeholders regarding the nationwide permits and develop region-
specific approaches for each district to best protect the environment
while providing fair, reasonable, and timely decisions for the
regulated public. The final permits we are issuing today reflect a
clear decision to proceed in a way that does regionalize the program,
particularly NWP 26. We are issuing NWP 26 for an interim period of two
years, during which we will gather interested parties at the national
level as well as the district and division levels, to develop
replacement permits for NWP 26. The replacement permits will be
activity-specific rather than the geographic based approach of NWP 26.
By developing activity-specific NWPs to replace the existing NWP 26, we
will be able to more clearly and effectively address the potential
impacts to the aquatic environment, as well as more effectively address
specific applicant group needs.
Once the Corps establishes activity-specific replacement permits
that have clear national conditions to ensure the aquatic environment
is protected and the impacts will be no more than minimal, each
district, working with the Corps divisions, will establish regional
conditions for the activity specific replacement permits. This may
result in the revocation of certain NWPs in aquatic environments of
particularly high value, and the addition of regional limitations to
specifically address needs for protection of specific environmental
assets. Of course, we will continue to encourage all districts to
develop programmatic general permits (PGP) with states and other
regional authorities that effectively regulate the waters of the United
States. When such permits are developed and issued, it is often
appropriate for the Corps district
[[Page 65876]]
to revoke the nationwide permits in the area covered by the (PGP),
provided the PGP provides at least the level of protection of the
aquatic environment that the Corps does through its administration of
the NWP program.
During the next two years, as the Corps develops the activity-
specific replacement permits, the revised NWP 26 will be in effect. We
have substantially changed NWP 26, with additional nationwide
limitations and conditions, in order to provide substantially improved
protection of the aquatic environment, and to ensure that only minimal
adverse effects will result from use of the NWP. These additional
limitations and conditions are discussed in detail in the preamble for
NWP 26 below, as are the specific means by which we have directed the
districts and divisions to regionalize NWP 26. In summary, we have
directed our districts working with the divisions and Federal and state
natural resource agencies to add region-specific conditions to all
NWPs, paying particular attention to NWP 26, which will add an
additional layer of protection to the changes we have put into place at
the national level. This process will also involve public notice and
comment to ensure that all interested parties have the opportunity to
be involved in the process.
Reissuance Process
A few commenters also commented on the process we used for
reissuance of the NWPs. One commenter felt that the Corps should have
requested comments and suggestions from the public prior to issuance of
the proposed nationwide permits. A few expressed concern that the Corps
Special Public Notices, announcing the proposed nationwide permits and
requesting comments, did not include sufficient information to generate
meaningful comment by the public. These commenters felt that the public
notices should have included such information as: The text of all
nationwide permits proposed for reissuance, legal and biological
justification for reissuance, the location of records regarding use and
impacts of the nationwide permits, potential additional impacts due to
reissuance or modification of the permits, the extent and effectiveness
of existing mitigation permit conditions, the effect of the proposed
changes in the permits, and the possible benefits to the nation of
eliminating specific NWPs. These commenters also felt that the comment
period was not adequate for so many permits at one time and recommended
the Corps publish individual public notices for each permit, three per
month, with 90 day review periods for each public notice.
The Corps believes that the process provided adequate information
and time for public review and comment. We provided concise information
regarding the proposed revisions to the nationwide permits and included
the names, addresses and phone numbers of points of contact for
requesting additional information. To include the information requested
by a few reviewers as outlined above was not considered to be
productive and the publication would be too voluminous and costly for
publication and distribution to the general public. Information
requests received during the review period were given priority and
information was provided in as timely a manner as was possible. We
extended the original 45 day review period by 14 days and added 6
regional public hearings to the originally scheduled hearing in
Washington, D.C., in order to provide as much opportunity for the
public to comment as was reasonable. In response we received
approximately 4,000 letters of comment, and most of the public hearings
were well attended. The Corps also believes it is much more efficient
and less burdensome on all parties involved to collectively review all
the nationwide permits at one time. To publish three notices a month
for 90 days each would require more than a year to address all 39 NWPs
and place a continuous review burden on the commenting public for the
entire period. Such a process would also result in significant
inefficiencies in the utilization of Corps limited resources for
implementing the program.
Accounting
A substantial number of commenters stated that the Corps of
Engineers should establish a system of record keeping to quantify
impacts and mitigation, and that such records would be necessary to
document that the nationwide permits have only minimal adverse
environmental effects. Many commenters stated that the acreage lost due
to nationwide permits is not known and the Corps cannot support a
conclusion that the effects of the nationwide permits are not
significant. A number of commenters stated that reporting should be
required for all nationwide permits while others called for reporting
for any permit which might have more than minimal impact. Comments
indicated that, at a minimum, data reported should include the location
and size of any wetlands, and should be collected by activity,
nationwide permit number and acreage for each aquatic type. A large
number of commenters asked that the records be published quarterly or
annually and one suggested they be made available on the Internet.
The Corps has collected and reviewed specific data to assist in
making program-wide determinations and decisions regarding the NWP
program. While we believe that the data currently being collected for
most nationwide permits is sufficient for these purposes, we are
increasing the information we will regularly collect in the future. In
particular, we are making changes to NWP 26 that will substantially
increase the data base regarding that permit. Many districts also
collect additional data relative to the use of nationwide permits for
use in regionally conditioning the nationwide permits and evaluating
specific actions on a case-by-case basis. We do not have the resources
necessary for field verification of all nationwide authorizations and
associated mitigation efforts. While we do not believe it is necessary
to publish periodic reports regarding the nationwide permit program,
information and data collected is available for public review upon
request. Each district does periodically publish a ``Permits Issued and
Denied'' report which is currently sent to standard mailing lists. The
Corps is planning to provide access to such information and data via
the Internet.
Enforcement
Most of those who commented on the enforcement of nationwide
permits expressed the belief that the Corps has not enforced permit
conditions or verified that projects are eligible for the nationwide
permit issued. One commenter stated that lax enforcement gives
violators an economic advantage over those who comply with the law.
Commenters stated that the Corps must develop a system to monitor
activities, verify applicant information, and enforce conditions.
Several comments suggested conducting random inspections and penalizing
violators. Other proposals included recommendations that we develop a
process to allow citizens to petition the Corps to address a situation
where conditions are not being met, or to allow citizens to sue the
Corps to enforce conditions.
The Corps has limited human resources to manage the entire
Regulatory Program. Since properly developed and coordinated nationwide
permits have minimal individual or cumulative adverse effects, we
direct the majority of our efforts to projects with a greater potential
for impact to the environment. Every application
[[Page 65877]]
received is reviewed and a determination is made whether the project is
authorized by an existing general permit or requires a standard
individual permit (IP) evaluation process. The Corps does inspect a
selected number of permitted activities, including nationwide permit
activities, each year to encourage and verify compliance with all terms
and conditions of the permit (individual or general). The Corps does
follow up on reports of alleged violations of the Clean Water Act (CWA)
and/or the Rivers and Harbors Act of 1899 (RHA) and pursues resolution
of those actions. The Corps currently accepts and investigates
suspected violations reported by citizens. Furthermore, each district
has an enforcement program and administers it in a manner to provide
the most effective compliance with the CWA, to include spot checks,
monitoring, reporting, etc.
Notwithstanding the above, we agree that we need to do more to
ensure compliance. Therefore, the Corps is, with the reissuance of the
NWPs, instituting a program that will require every verified permittee
to certify, in writing, that they constructed the project in accordance
with the permitted plans, including any mitigation. The Corps is
reviewing its enforcement and compliance program to determine if
additional guidance is necessary.
Stacking of NWPs
Many commenters indicated that the use of multiple NWPs for a
single project (a practice referred to as ``stacking'') should be
eliminated or restricted because it allows opportunity for greater than
minimal adverse effects to result under nationwide permit
authorizations.
The purpose of the NWP program is to authorize activities that
cause only minimal individual and cumulative adverse environmental
effects with a minimum of administrative processing. While being
responsive to applicants and protective of the aquatic environment are
considerations that must be balanced, the Corps understands fully that
the statutory threshold of ``minimal adverse effects'' is controlling,
whether the action involves the use of one or more NWP. We believe
that, under certain circumstances, NWPs can be used in combination and
result in only minimal individual and cumulative adverse environmental
effects. In this regard, our regulations provide for multiple use of
NWPs (but each one only once for a single and complete project)
provided that the combined adverse effects are minimal. If an activity,
otherwise eligible for a nationwide permit, is an integral part of a
project for which a standard individual permit is required, it cannot
be authorized by an NWP. Most combinations of NWPs allowing discharges
of dredged or fill material in waters of the United States (including
wetlands and other special aquatic sites), require a PCN to the
District Engineer (DE). The PCN process requires the District Engineer
to determine whether the activity or combination of activities will
result in more than minimal individual or cumulative adverse
environmental effects. With this notice we are directing all District
Engineers to conduct very critical reviews of projects involving
stacking to ensure that no more than minimal adverse effects will
occur.
While the Corps allows, under certain specific circumstances, the
multiple use of NWPs for single and complete projects, many NWPs are
generally ``stand alone'' project authorizations (e.g., NWP 21 would
authorize all activities associated with the project) without the need
for other NWPs. Some other NWPs, while they are occasionally used with
other NWPs, generally are not (e.g., NWP 28 for modification of an
existing marina is mostly used alone); however, occasionally it may be
used with NWP 3 for repair of an existing structure or with NWP 13 for
some bank stabilization. Generally, only 7 of the 37 NWPs are used more
than occasionally with certain other NWPs for authorizing projects.
These 7 NWPs are 3, 12, 13, 18, 19, 26, and 33. We believe that of
those 7 NWPs, those with the potential to have more than minimal
impacts, when used with certain other NWPs, are NWPs 18 and 26 in
combination with each other and with NWPs 14 and 29. Consequently, to
ensure that the multiple use of nationwide permits does not result in
more than minimal adverse effects, the Corps will restrict the multiple
use (i.e., stacking of those nationwide permits) as follows. NWP 14 has
been modified so that it cannot be combined with NWP 18 or NWP 26 for
the purpose of extending the limitations of any of the three permits.
For example, NWPs 14 and 26 cannot be combined to authorize a fill of
3\1/3\ acres. Furthermore, NWP 18 cannot be combined with NWP 26 to
increase the threshold or the limitations of NWP 26. NWP 29 is already
conditioned that it cannot be used in conjunction with NWP 14, NWP 18,
or NWP 26. We have also limited the impacts allowed when stacking any
NWP with NWP 26 or NWP 29. Whenever any other NWP is used in
conjunction with NWP 26, the total acreage of impacts to waters of the
United States, for all NWPs combined, cannot exceed 3 acres. Similarly,
whenever any other NWP is used in conjunction with NWP 29, the total
acreage of impacts to the waters of the United States, for all NWPs
combined, cannot exceed \1/2\ acre. We believe that these limitations
will eliminate abuse of stacking while allowing appropriate multiple
use of some nationwide permits. For example, the Corps could authorize
a 0.3 acre road crossing to a 2.5 acre NWP 26 fill project, with
appropriate avoidance and mitigation.
Finally, we have added General Condition 15 ``Multiple Use of
Nationwide Permits'' that requires a Corps-only PCN in any case where
any NWP 12 through 40 is combined with any other NWP 12 through 40 for
a single and complete project. For example, if an applicant wishes to
combine the use of NWP 14 for a road that does not involve fill in
wetlands and NWP 13 for a bulkhead less than 500 feet in length, a
Corps-only notification will be required; even though, the use of these
NWPs for the projects described do not require a PCN if constructed
independently. However, the change noted above will ensure that for
combinations that have the potential to result in more than minimal
adverse environmental effects, a Corps-only PCN will be required.
State Section 401 Water Quality Certification
Many commenters expressed opposition to the Corps practice of
issuing provisional verifications of authorization under nationwide
permits for which section 401 water quality certifications have been
denied by the state. They expressed the belief that it put undue
pressure on the states to certify the projects. Some also commented
that it was unfair to require the states to issue, deny, or waive water
quality certification within 60 days of receipt of an individual
request for certification. Some felt that if a state denied water
quality certification for a nationwide permit, the Corps should not
authorize any projects under that particular NWP and that the projects
should be evaluated under the individual permit procedures. Others
believed that administration of sections 401 and 404 should be merged
for NWP 26.
It is important to emphasize at the outset that it is the intent of
the Corps to work closely with states and Tribes (or EPA where
appropriate) during the next 60 days to facilitate State 401 Water
Quality Certification. The Corps is committing to meet with the states
[[Page 65878]]
and Tribes at the District level, with the goal of ensuring that
issuance of each of the NWPs in today's package is consistent with
Water Quality Standards established by the states, Tribes, and EPA.
This process will include discussion and incorporation of appropriate
terms and conditions that would ensure consistency with state/Tribal
Water Quality Standards.
We believe that the procedures in 33 CFR part 330 regarding state
401 water quality certification are appropriate and provide a
reasonable approach for the state to ensure their water quality
standards will be met. Moreover, we believe denial of a 401 water
quality certification for a nationwide permit should not be the sole
basis for requiring an individual permit application for activities
that would otherwise comply with the terms and conditions of that
nationwide permit. Denial of state water quality certification for a
nationwide permit does not necessarily mean that unacceptable adverse
environmental effects will occur on a case-by-case basis. Rather, it
indicates that the state is not confident that state standards will be
met in all cases. It follows then that, based on the state's denial,
the Corps denies authorization, without prejudice, for those activities
for which the state denied section 401 water quality certification.
Those activities cannot proceed under an NWP or an IP unless the state
subsequently issues or waives a water quality certification for that
activity. Thus, when the state determines that state standards are met
in a specific case (i.e., an individual 401 water quality certification
is issued or is waived), the nationwide permit authorization should be
available to the prospective permittee. Finally, this approach is based
on our desire to develop effective partnerships with states where
workload is shared, regulatory duplication is reduced, and neither the
Corps nor the states determine how the other party discharges its
regulatory responsibilities.
Given the concern regarding the potential water quality impacts of
NWP 26, the Corps will also provide an additional opportunity for
review for this NWP. In those circumstances where a state has denied
section 401 water quality certification for activities between 1/3 and
one acre, EPA may request that the Corps provide EPA with PCNs for
those proposed activities in the state. Specifically, if the Regional
Administrator requests PCNs in those states that have denied water
quality certification, the Corps will provide PCNs to EPA consistent
with the notification general condition. EPA will work with the other
Federal resource agencies to determine which PCNs they wish to receive,
and will forward them as appropriate. We anticipate that in most states
the agencies will not be receiving PCNs for discharges between 1/3 and
one acre because of the Corps commitment to work with the states to
ensure, to the best of our ability, that Section 401 water quality
certification will be granted.
Several commenters stated that the Corps ought to prevent the
states from requiring verification of authorization from the Corps
under section 404 prior to receiving 401 certification or waiver
thereof. Other commenters stated that the Corps should limit the
states' review under section 401 to only 21 days. The Corps believes it
would be inappropriate for us to instruct the states on implementation
of their responsibilities under section 401, but rather we will work
with the states to resolve concerns regarding impacts to the Nation's
waters and implementation of our respective regulatory programs on a
programmatic basis. This will include discussions between the states
and the Corps on a reasonable period of time for the states to act on
an individual Section 401 water quality certification.
One commenter recommended an additional general condition requiring
that projects otherwise eligible for nationwide permits also be
consistent with the requirements of section 303 of the Clean Water Act.
The states, as part of their review and evaluation under section 401 of
the Clean Water Act, are responsible for ensuring compliance with
several sections of the Clean Water Act, including section 303.
Therefore, we have proposed no changes for this provision.
Publication of the Nationwide Permits in the CFR
Many commenters were opposed to publishing the NWPs only in the
Federal Register (FR) and suggested that they be published in both the
Code of Federal Regulations (CFR) and FR. Many indicated that using the
CFR is easier and more accessible and that the FR would make it more
difficult and even a burden for the public to obtain a full list of
available NWPs. One commenter stated that the Corps failed to provide
an explanation of why it proposes to publish the NWPs only in the FR.
One comment indicated that most county and university law libraries
have the CFR, but not back issues of the FR; that only libraries with
Federal document depositories have FRs and very few carry back issues.
One commenter pointed out that although FRs are found on databases or
CD Rom (e.g., Environmental Law Reporters) they usually have only the
prior year on database. Therefore, they would have no access until the
nationwide permits are over one year old.
One commenter requested that the final announcement include a
summary of nationwide permits valid in each state to provide those who
work in multiple states with a ``one-stop reference'' of potential
nationwide permits.
The final nationwide permits have not been included in the CFR and
are being published herein, following procedures similar to those for
individual permits and regional general permits, because NWPs are
permits, not regulations, and therefore, are not appropriate for
publication in the Code of Federal Regulations. While publication in
the CFR would provide a ready reference, publication of the final
decisions on the nationwide permits are announced in the Federal
Register and will also be published through regional public notices
issued by District Engineers. Moreover, publication of the nationwide
permits in the CFR does not provide an accurate representation of the
nationwide permits for any particular area. Such CFR publication would
not include the state 401 position nor regional conditions imposed by
the local Corps district and division offices. Furthermore, the CFR is
only published once a year. Therefore, the reissued NWPs would not be
published until July 1997. In addition, it is our intention to ensure
that all of the pertinent statutes, regulations and other guidance, as
well as the nationwide permits including district regional conditions,
be made available on the Internet in the near future.
Compliance With the National Environmental Policy Act
Numerous commenters stated that issuance of the NWPs in their
proposed form would constitute a major Federal action which would have
a significant effect on the human environment, thus requiring
preparation of an Environmental Impact Statement (EIS) under the
National Environmental Policy Act (NEPA). Numerous commenters also
contended that the Corps decision documents are inadequate, do not
provide enough information, and are based on insufficient data to
appropriately evaluate the impacts of the NWPs. Many of the comments
received indicated the Corps should prepare an EIS to ensure that
adverse effects are minimal. One commenter added that, at a minimum, an
EIS should be prepared for NWPs 26
[[Page 65879]]
and 29. Other commenters listed the following NWPs as needing an EIS:
NWPs 12, 13, 14, 21, 34, and 40.
Several commenters requested that the Corps prepare a cumulative
impact analysis now and make it part of an EIS. Several different
commenters provided the following estimates of cumulative impacts
occurring under the existing NWP program as acres of wetlands lost:
70,000 acres per year; 82,000 acres from 1988 to 1996 nationwide from
27 of the 36 Corps districts and only from NWPs that were reported to
the Corps (included in this figure was an estimate of 4,333 acres of
vernal pools lost in California); in 1994 more than 90,000 wetland
filling activities proceeded under Corps general permits; nearly one-
half million activities; the sum of the small, 0.5-acre, wet areas,
like the prairie potholes and vernal pools, impacted is biologically
significant; the National Oceanic and Atmospheric Administration's
National Marine Fisheries Service (NMFS) Pre-construction Notification
(PCN) database from 1992 to 1996 indicated a loss of 5,500 acres in the
southeast region of the United States (Florida had more than 2,000
acres, Georgia, more than 1,000 and coastal Texas 300 acres in Harris
County alone).
Several commenters raised the issue of alternatives analysis. One
commenter recommended that a full range of reasonable alternatives be
explored in the decision documentation, to include not only alternative
formulations of the individual NWPs, but also alternative approaches to
NWPs, in general. The commenter states that Programmatic General
Permits (PGPs), including state PGPs, have already been demonstrated to
be effective in several northeastern states. One commenter requested
that the decision documents incorporate the regional conditions.
The Corps has collected data relevant to the usage of nationwide
permits and associated impacts and we believe that our data demonstrate
that the adverse effects from the previous NWPs were minimal. These
data show that for Fiscal Year 1995 (FY95) a total of 43,775 activities
were authorized with written Corps verifications under all of the NWPs
nationwide (this total does not include those for NWP 27, which allows
for creation, enhancement and restoration of wetlands and are,
therefore, anomalous to this data set). These authorizations under all
of the NWPs adversely affected approximately 6,500 acres of wetlands
and the Corps received approximately 7,800 acres of mitigation in
return. It is estimated that there were approximately 87,000 activities
authorized by all of the NWPs nationwide that did not require a PCN, or
were otherwise verified in writing by the Corps. We estimate that these
unverified authorizations adversely effected an additional 4,300 acres
of wetlands. Although this is less than many have suggested, we are
consciously striving to reduce this loss through the changes to the
program set forth here today. Moreover, the provisions and limitations
of the nationwide permit program ensure that those activities
authorized by NWPs will have less than minimal adverse environmental
effects. Notwithstanding our continued belief that adverse effects of
the NWP program have been minimal and the fact that the NWPs we are
issuing today will substantially reduce potential effects, the Corps
will collect additional data on the reissued NWPs, to document more
fully the impacts. For all NWPs that involve a PCN, we will collect
data on the acreage of impact and acreage of mitigation. We are also
adding a condition to NWP 26 that will require all permittees to notify
the Corps of the acres of impact of their project.
The Corps evaluation of the impacts on the aquatic environment
resulting from the Nationwide Permit (NWP) program indicates that the
cumulative adverse environmental effects are minimal and not
significant. This is based on our belief that cumulative impacts must
be viewed in the context of the individual watersheds. We believe that
past regional conditions placed on NWPs, particularly NWP 26, in many
districts have substantially reduced cumulative impacts on a watershed
basis. Districts have revoked NWP 26 in many high value watersheds and
placed additional notification or other limitations on NWP 26 to ensure
minimal adverse environmental effects to specific watersheds. Although
these past regional protections have substantially reduced adverse
environmental impacts, we believe additional protections are needed to
continue to ensure that only minimal adverse environmental effects will
occur. Some of the additional protections we are implementing include
substantially reducing the acreage limits under NWP 26, ensuring that
stacking of NWPs impacts a maximum of 3 acres and only after a review
by the Corps, substantially increasing the number of instances where a
Corps review is necessary, and requiring increased and more detailed
data collection to better monitor NWP activity. Moreover, we are more
strongly directing the Corps districts and divisions to add regional
conditions for high value watersheds, and additional generalized
regional conditions that will ensure that only minimal impacts will
occur. This will also ensure that cumulative impacts will not be
significant.
In that the adverse effects will be less than minimal, it also
follows that they will not result in ``significant impacts on the human
environment,'' the threshold requiring an EIS as defined within
regulations implementing NEPA. Thus, no EIS is required prior to
finalization of these nationwide permits. Formal documentation of the
Corps analysis and determinations have been prepared in compliance with
NEPA and the Clean Water Act. This documentation includes an
environmental assessment and, where relevant, a section 404(b)(1)
Guidelines compliance analysis. Copies of these documents are available
for inspection at the office of the Chief of Engineers and at each
Corps district office. Additionally, Division Engineers will supplement
the national NWP decision documentation to discuss regional conditions
and regional revocation requirements, which further ensure that the
impacts are minimal. These supplements will be available for inspection
at the appropriate district offices. We have prepared a programmatic
alternatives analysis for each NWP which discusses administrative
alternatives to issuing each NWP.
General Permit Criteria
Several commenters requested that the Corps define what constitutes
``minimal'' adverse effects and ``similar in nature'' and prove or
guarantee that the NWPs meet the legal requirement that wetland fills
have no more than minimal adverse effects before the NWPs are reissued.
One commenter stated that the Corps simply ignores the requirement of
section 404(e) for activities that are ``similar in nature'' and have
no more than minimal adverse effects on aquatic resources such as
wetlands. Another commenter recognized that generally the NWPs are
conditioned to ensure that adverse effects will be minimal, but was
nevertheless concerned that there are many serious exceptions, noting
NWPs 26, 29, 34, and 40. One commenter argued that some of the NWPs
covering activities that are similar in nature could affect wetlands
that were not similar, including NWPs 7, 12, 13, 14, 16, 17, 19, 21,
25, 26, 29, 33, 34, 37, and 40. Most commenters indicated that NWP 26
was of most concern and others commented that, without mitigation,
there could be a cumulative effect. Several commenters recommended that
[[Page 65880]]
the Corps first obtain data to determine the extent of the project
impacts. Without such data, they maintain that it is difficult to
accurately assess if wetland fills authorized by the NWPs comply with
the Clean Water Act requirements for no more than minimal individual or
cumulative adverse environmental effects.
We have determined that it is not appropriate to define the term
``minimal'' at the national level, because what constitutes minimal
adverse environmental effects can vary significantly from resource to
resource, state to state, county to county, and watershed to watershed,
as well as district to district. Moreover, the term ``minimal'' must be
defined based on the effects of the specific project in the immediate
vicinity, and in the watershed where the activity will occur. Simply
listing the acres lost nationally is not instructive regarding minimal
adverse effects. Therefore, the determination of ``minimal'' adverse
environmental effects is left to the discretion of the DE. The district
represents the most knowledgeable office concerning the aquatic
resources within that particular region, and the DE is therefore the
most capable of assessing relative impacts that would result from
activities authorized under the NWP program. We believe that each
nationwide permit authorizes similar activities within the definition
for general permits as defined in 33 CFR 322.2(f) and 323.2(h), and
with each district's capability to identify impacts associated with
these activities and the ability of the DE to require project specific
mitigation or to exercise discretionary authority, activities
authorized under these NWPs will have less than minimal adverse
effects. The Corps divisions have had the authority, based on
recommendations from the Corps districts, to reduce potential adverse
effects by imposing regional conditions or revoking the applicability
of specific NWPs in high value aquatic areas. The Corps divisions have
used this authority in many cases. However, we are, in this notice,
further emphasizing to all Corps districts and divisions that they
should use this authority within their geographical areas to further
ensure that only minimal individual and cumulative adverse effects will
occur. We expect that each division will, based on the recommendations
from each district, restrict the use of several nationwide permits to
ensure protection of high value aquatic systems under its authority.
Moreover, districts will ensure that adverse effects under NWP 26 are
minimal by requiring mitigation for most projects above \1/3\ acre.
This determination is further reinforced by the NEPA and Section 404
evaluations discussed above. The collection of detailed data for the
purpose of addressing cumulative impacts is also addressed above under
``Compliance with the National Environmental Policy Act.''
Endangered Species
The Corps believes that the procedures that we have in place ensure
proper coordination under section 7 of the Endangered Species Act (ESA)
as well as ensuring that threatened and endangered species will not be
jeopardized and their critical habitat will not be destroyed. We also
believe that current local procedures in Corps districts are effective
in ensuring that the ESA is fully complied with under the nationwide
permit program. Finally, we have incorporated several additional
assurances into the program which have resulted from informal
consultation with the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS).
Under the current Corps regulations for our NWP program (33 CFR
330.4(f)), each district must consider all information made available
to it, and information that it has in its own records, to determine
whether any listed threatened or endangered species or critical habitat
may be affected by a specific permit action. Based upon this
consideration and evaluation, the district will initiate consultation
with the FWS or NMFS, as appropriate, if the district determines that
the regulated activity may affect, or if the district believes that the
action is not likely to adversely affect, any endangered species.
Consultation may occur under the NWP process or the district may assert
its discretionary authority to require an individual permit for the
action and initiate ESA consultation during the individual permit
process. If the ESA consultation is conducted under the NWP process
without the district asserting its discretionary authority and require
an IP, then the applicant will be notified that he cannot proceed until
the consultation is complete. If the district determines that the
activity would have no effect on any endangered species, then the
district would proceed to issue a NWP verification letter. The Corps
verification letter will explicitly state that the Corps has made a
determination of no affect on endangered species.
Corps districts have, in most cases, established informal or formal
procedures with their local counterparts in the FWS and NMFS through
which the agencies share information regarding endangered species.
Information developed, shared, and used by the local Corps and FWS/NMFS
offices result in the Corps becoming aware of potential adverse effects
on ESA-listed species. In most cases, maps and computer data bases are
available on the local level that identify locations of populations of
endangered or threatened species and their critical habitat. Moreover,
for cases which involve a level of potential adverse effects that
require a PCN process of coordination with the other agencies, the
Corps is now specifically requesting any information that the FWS or
NMFS may have on endangered species as part of the PCN consultation.
Thus, based on location of the project, an additional level of review
now exists for these types of projects. Furthermore, the Corps is now
requiring additional PCNs in additional areas and for additional types
of activities to ensure that the potential NWP effects will be minimal,
for example, the lowered threshold levels of NWP 26. This provides for
an additional level of review for many more activities. Any information
provided through the PCN process will be used by the district to make
its ``may affect,'' ``not likely to adversely affect'' or ``no affect''
determination.
In addition to the procedures listed above, each NWP verification
includes General Condition 11, which states that ``no activity is
authorized under any NWP which is likely to jeopardize the continued
existence of a threatened or endangered species * * * or which is
likely to destroy or adversely modify the critical habitat of such
species.'' Also, to avoid possible confusion on the part of some
applicants, Condition 11 has been modified to clarify that this NWP
does not authorize the taking of Federally listed threatened or
endangered species. This should help ensure that applicants do not
mistake the Corps permit as a Federal authorization that would allow
the taking of Federally listed threatened or endangered species.
Although the Corps continues to believe that these existing
procedures ensure that the Nationwide Permit Program complies with the
ESA, we will take the following additional steps to provide further
assurance. First, although not required, the Corps will initiate
programmatic formal section 7 consultation with the FWS and NMFS as a
precaution to further ensure that there is no adverse effect on listed
species. We intend that formal consultation will be concluded as soon
as possible but not to exceed two years from the date of issuing the
revised and
[[Page 65881]]
reissued NWPs. Second, the Corps will direct the district offices, in
writing, to meet with appropriate local representatives of the FWS and
NMFS and to establish or modify existing procedures to ensure that the
Corps has the latest information regarding the existence and location
of any Federally listed threatened or endangered species or their
critical habitat in its district. This will ensure that districts have
the best information available to make decisions regarding whether an
activity may affect an endangered species and thus whether or not to
initiate consultation. The Corps districts can also establish through
local procedures, regional conditions or other means of additional
consultation for areas of particular concern that a permitted activity
may affect an endangered species. The Corps believes that the
procedures that we have in place ensure proper coordination under
section 7 of the ESA, as well as ensuring that threatened and
endangered species will not be jeopardized, and that their critical
habitat will not be destroyed.
While we are issuing/reissuing this entire package of NWPs (except
for NWP 26) for a period of five years, we will be working over the
next twenty-four months to collect data, monitor use of these NWPs, and
conduct formal consultation under section 7 of the ESA. This two year
process is intended to provide us with more detailed information on the
types of activities being authorized, the nature and extent of wetlands
and other waters being affected by the NWPs, and potential effects to
the Nation's Federally listed threatened and endangered species.
Immediately following the conclusion of this two year process, we will
use the results of this data collection, analysis, and consultation to
reevaluate the NWPs being issued/reissued today to determine what
modifications are necessary. We will provide to the public, by notice
in the Federal Register, the results of our data collection and
consultation. In addition, we will provide the opportunity for public
comment on changes to the NWP program that might be necessary to ensure
compliance with the CWA, ESA and NEPA. In the interim, we would welcome
any comments or information that the public might wish to provide
relevant to our data collection and consultation process.
III. Comments and Responses on Specific Nationwide Permits
1. Aids to Navigation: Two commenters supported reissuance of this
NWP and no changes were proposed. NWP 1 is reissued without change.
2. Structures in Artificial Canals: No changes to this permit were
proposed by the Corps. One commenter suggested the term ``artificial
canal'' be defined and that the definition exclude historic sloughs or
channels. Another commenter suggested that the term ``structures'' is
too vague and requested clarification on the interpretation of
``principally residential canals,'' whether this NWP authorizes the
removal of structures, and whether it can be used in place of or in
association with NWP 13 for bank stabilization.
While the term artificial canal could be misinterpreted by some to
include channelized natural areas, this is clearly not the Corps
interpretation. Should a Corps district find that individuals are using
NWP 2 in such areas, the district would take appropriate action to
bring such activities into compliance through proper procedures. In
accordance with 33 CFR 322.5(g), structures in previously authorized
canals would have been considered under applications for the original
canal work. In grandfathered canals or in cases were structures may not
have been considered, the DE may use discretionary authority to
evaluate structures if more than minimal adverse effects are
anticipated. Artificial canals within principally residential
developments would be used primarily for personal or recreational
egress and ingress rather than for commercial use. The Corps
procedures, as outlined in the general condition for historic
properties, comply with the requirements of 33 CFR part 325 appendix C,
which implements 36 CFR part 800 and fully satisfies the requirements
of National Historic Preservation Act (NHPA). This nationwide permit is
not to be used for bank stabilization projects; such projects should be
reviewed for authorization under NWP 13. In case(s) of independent
utility, NWP 2 may be used in conjunction with NWP 13 provided
individual or cumulative adverse effects are not more than minimal. We
anticipate that the impacts resulting from the removal of structures in
artificial canals would be similar to the impacts derived from the
original installation. Consequently, removal activities are authorized
by this NWP. NWP 2 is reissued without change.
3. Maintenance: The Corps proposed no changes to this nationwide
permit. One commenter recommended that the NWP not allow restoration
that clearly adversely affects fish and wildlife. Several commenters
recommended that no deviation from the original design be authorized by
the permit since changes could result in significant adverse effects,
while one commenter suggested eliminating the qualification for ``minor
deviation in the structure's configuration.'' Another commenter
requested a list of types of authorized activities and that ``minor''
be defined. Another commenter asked for inclusion of bridge/culvert
replacement that complies with flood-proofing and structural design
standards.
The experience with NWP 3 has been very good; navigable waters have
not been obstructed and impacts are very minor. Furthermore, in many
cases, use of NWP 3 actually enhances the aquatic environment. For
example, replacing a seawall that is damaged often results in
eliminating chronic turbidity caused by erosion. Because all structures
and fills require maintenance periodically and because infrastructure
repair following national disasters is critical to the public welfare,
we believe this nationwide permit is necessary. We are retaining the
provision allowing ``minor deviations'' in order to provide the
flexibility necessary to keep pace with construction technology,
building codes and public safety. Activities with deviations resulting
in more than minimal adverse effects would not be authorized by this
nationwide permit, nor would activities having more than minimal
adverse effects on fish and wildlife. The qualifications attached to
the ``minor deviations'' provision are considered necessary in order to
ensure adverse effects are avoided and minimized to the extent
possible. This NWP is not limited by type of facility. ``Minor'' is not
specifically defined, because the variety of structures and fills
included makes defining the word impracticable. ``Minor'' is meant to
refer to a level of project deviation which will result in a level of
adverse environmental effects associated with the change that are no
more than minimal. Bridge and culvert replacement in compliance with
local requirements and design standards would normally be authorized
under the permit if they meet the limitations and conditions of the
permit.
One commenter requested that NWP 3 authorize activities previously
authorized by 33 CFR 330.3 and equivalent authorizations at the state
level or constructed prior to the excavation rule. NWP 3 specifically
states in the first sentence that 33 CFR 330.3-authorized activities
are included. Similar authorizations under state laws can vary
considerably and may not be consistent with NWP 3; thus a blanket
authorization is not appropriate. This nationwide permit is tied to
structures
[[Page 65882]]
and fills only, and cannot be used to authorize the repair,
rehabilitation or replacement of excavated facilities. The term
``structure'' does not include unconfined waterways, such as streams
and non-lined drainage ditches. The term does include such activities
as bank protection measures, ditches and canals lined with man-made and
placed materials.
Several commenters recommended that fills and structures required
by special conditions in a previously issued permit be covered. The NWP
does authorize maintenance of such structures or fills that were
previously authorized. This NWP does not authorize activities that were
not previously authorized by the Corps.
Another commenter suggested that ESA coordination occur after
catastrophic events when new habitat can be created but then damaged by
repair activities. General Condition 11 and ESA section 7 require
coordination for endangered species. Consideration of improved habitat
is made under section 7.
Another commenter felt maintenance/operation plans should be
approved before the work is conducted. We believe that this would
create an unnecessary burden on the applicant and the Corps for
authorization of maintenance and repair activities with less than
minimal adverse effects.
One commenter believed that the two year construction time period
should be extended, while another felt that two years is long enough.
In our judgment, two years has proven to be a reasonable period that
does not jeopardize environmental protection due to changing
conditions. The permit includes provisions for the DE to extend the
period if warranted.
Another commenter felt that this NWP should not be allowed in
floodplains. We believe the floodplain capacity would not be
appreciably changed for structures or fill maintenance and repair
within the limits of this NWP.
One commenter suggested limiting the impact area and another
suggested the PCN procedure be applied to this NWP. Since NWP 3 only
authorizes structures and fills that are existing, the impacts have
already occurred. Maintaining them creates little or no added adverse
effects, which ensures that effects would be less than minimal.
Therefore, we believe neither of these limitations should be applied.
NWP 3 is reissued without change.
4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities: As part of the proposed modification of this
permit, we were clarifying that the permit does not authorize the use
of covered oyster trays or clam racks. One commenter questioned whether
the prohibition on clam racks included ``clam bags'' and was concerned
about the scope of ``covered oyster trays and clam racks.'' This
commenter was also concerned about the harvesting of natural live rock,
the inclusion of open water pens in the definition of ``impoundments or
semi-impoundments for culture of motile specimens,'' or qualitative
limitations to define ``small fish attraction devices''; and whether
bottom dredging of sea grass areas or ``bottom tending gear'' for
commercial purposes were authorized by this permit. One commenter
suggested that the permit should specifically exclude commercial scale
net pen culture in addition to oyster trays and clam racks. Another
commenter asserted that shellfish beds should not be authorized under
this permit. This commenter also stated that the exclusion of
authorization of covered racks and the location of racks in wetlands of
sites that support aquatic vegetation was not sufficient. The commenter
cited information that described changes in species diversity
associated with the location of racks on and in intertidal mudflats.
One commenter stated that the permit should be modified to authorize
the releases of scallop and hard clam seed into eelgrass cover. One
commenter urged that small aquaculture projects be excluded from this
permit, while another commenter stated that fish hatcheries should be
specifically excluded. A few commenters suggested that the installation
of fish ladders be included under the permit. One commenter was
concerned about issuance of permits in areas that have been customary
boating channels.
Each of the comments on this nationwide permit are expressions of
concern for unique situations in specific regions of the Nation. It is
not possible to address all the possible limitations and conditions
that may be appropriate at a local or regional level. Nor can we
address all the possible variations in terminology, such as ``clam
bags.'' Therefore, we believe it is more reasonable and practicable for
such comments to be addressed through regional conditions and the
provisions for discretionary authority at the division and district
levels. Corps districts have the authority, working with the divisions,
to restrict use of this NWP in high value areas, such as particularly
vulnerable seagrass beds, if they deem such restrictions to be
necessary. The one change proposed by the Corps was not objected to and
received some comments of support. Therefore, that change has been made
to the permit in its reissuance.
Another commenter suggested that the permit be modified to include
``sites where submerged aquatic vegetation may not be present in a
given year.''
Although we believe that the NWP language includes such sites in
the terminology ``* * * or sites that support submerged aquatic
vegetation * * *'' (i.e., a site may not have submerged aquatic
vegetation present, but could support such vegetation), we have
clarified this in the NWP. NWP 4 is reissued with the proposed changes
and the clarification stated above.
5. Scientific Measurement Devices: The Corps proposed no changes to
this NWP. A few commenters were concerned that the structures permitted
by this NWP could preclude or substantially obstruct movement of
aquatic organisms including migratory fish. One commenter was concerned
that this NWP does not provide any limit on the size or use of the
structures authorized and suggested that a maximum size be included
(e.g., 1000 square feet). This commenter also recommended that the NWP
be conditioned that the structure be used exclusively for purposes
associated with scientific measurement to preclude anyone from using
this NWP to circumvent the permit process. One commenter recommended
that the 25 cubic yard threshold be maintained but to eliminate the PCN
requirement.
We believe the concern for impeding the passage of fish or
shellfish is addressed by General Condition 4. Due to the varying
structures involved in scientific measuring devices, imposing a size
limitation would be difficult and unwarranted. A condition will be
added stating that any structure authorized by this NWP must be
exclusively used for purposes associated with scientific measurements.
We have also modified the PCN requirement so that applicants will need
to notify only the Corps. NWP 5 is reissued with the modifications
described above.
6. Survey Activities: The Corps-proposed changes to this nationwide
included allowing discharges associated with the placement of
structures necessary to complete a survey for historic resources and
soil surveys. Most commenters supported the proposed changes. A few
commenters requested that the placement of survey markers such as
benchmarks and monuments be authorized under this NWP. One commenter
felt that mechanical clearing of survey lines should be included, but
limited to 8 to 10 foot widths. A few
[[Page 65883]]
commenters requested that limited discharges and structures necessary
for the recovery of artifacts and information be included in the NWP
rather than excluded as proposed. Many commenters asked for the
exclusion of seismic exploratory operations involving the use of
explosives, such as ``3-D'' operations, due to the extensive scope and
environmental impacts of such activities. It was proposed that the term
``core sampling'' be changed to ``soil, rock and sediment sampling''
and changing ``exploratory-type bore holes'' to ``exploratory-type
holes'' because while most sampling of rock may be by coring, much of
the soil sampling is by other methods (i.e., augering, hand shovel,
backhoe, etc). Other commenters asked that the permit language
specifically indicate that no permanent structures are authorized, all
fills be removed and that the area be restored to its original state.
The placement of survey markers such as benchmarks and monuments is
authorized under NWP 18 within limitations. Activities necessary for
the recovery of artifacts and information are not authorized by this
NWP which is intended for authorization of survey activities only to
ensure the minimal adverse effects limitation is not exceeded.
Operations involving the use of explosives such as 3-D operations with
blast shock during seismic tests, or mechanical landclearing
activities, have not been categorically excluded. These activities are
either unique to, or differ between, geographical regions of the
Nation; therefore, regional conditions are the best way to address
concerns about minimizing the effects of 3-D seismic surveying. Corps
districts will be directed to coordinate with any Federal, state, or
tribal authority expressing a concern about 3-D seismic surveying for
the purpose of developing regional conditions to address those
concerns, as appropriate. Of course, use of towed explosive, pneumatic
or seismic devices that do not involve construction, excavation or
other work in sediments do not require any permit from the Corps. We
have conditioned this NWP to clarify that it does not authorize any
permanent structures or fills. The current wording of the NWP does
include, but is not limited to, the use of augers, shovels, backhoes,
and other small equipment, as well as core drills. NWP 6 is reissued
with the proposed changes and the clarification stated above.
7. Outfall Structures: The Corps proposed no changes to this NWP. A
number of commenters objected to re-authorization of this NWP or stated
that work in tidal wetlands or areas supporting anadromous fishes
should be excluded. Commenters stated that outfalls have caused the
loss of wetlands and may trap or entrain fish. Several commenters
stated that the NWP should contain a requirement to include measures in
the design to prevent such fish loss. One comment indicated that work
in areas that may be contaminated should be excluded. Another stated
that activities authorized by this NWP have significant adverse
environmental effects.
Regional conditioning of the nationwide permit and the provisions
for discretionary authority at the division and district levels will
provide tools necessary to protect fish, wetlands, and water quality,
and to address any other environmental effects that potentially are
more than minimal.
One commenter requested elimination of the notification requirement
when the construction of the outfall requires less than 25 cubic yards.
Several commenters called for retaining the notification requirement.
The notification requirement will be retained to allow review of
proposed projects for greater than minimal adverse environmental
effects and impacts to navigation.
Several commenters stated that this permit violates section 404(e)
of the Clean Water Act because the discharge structures may not be
similar in size or in the material discharged. One commenter called for
authorizing all intake structures under this NWP.
The activities authorized by this NWP are similar because they are
similar in scope and purpose and are reviewed and approved pursuant to
the National Pollutant Discharge Elimination System (NPDES) under
section 402 of the Clean Water Act. The relationship of these projects
to section 402 assists the Corps in arriving at a minimal adverse
effects determination. The inclusion of all intake structures under the
NWP would make such a determination not possible. NWP 7 is reissued
without change.
8. Oil and Gas Structures: The Corps proposed minor changes to this
nationwide permit to clarify that Corps review for taking discretionary
authority is limited to the effects on navigation and national
security. One commenter was concerned that work could occur in
environmentally sensitive areas. Another commenter suggested that
pipelines be excluded from use of this NWP. A few commenters believed
that this NWP should not be reissued because of potential impacts
associated with oil and gas exploration and that this NWP does not meet
the ``similar in nature'' or ``minimum effects'' threshold of section
404(e) of the Clean Water Act. One commenter recommended that a PCN be
required for this NWP. A few commenters believed that individual state
401 water quality certification should be required for these
activities.
The Corps believes this NWP is very restrictive. The only
structures that can be authorized under this NWP are those within areas
leased by the Department of the Interior, Minerals Management Service.
The general environmental concerns are addressed in the required NEPA
documentation the Service must prepare prior to issuing a lease.
Further, the Corps involvement is only to review impacts on navigation
and national security as stated in 33 CFR 322.5(f). NWP 8 is reissued
with the proposed clarifications.
9. Structures in Fleeting and Anchorage Areas: The Corps proposed
no changes to this NWP. One commenter requested clarification of the
term ``structures'' and the definition of ``fleeting and anchorage
areas,'' and expressed concern for secondary impacts of vessel
discharges, and impacts from shading submerged aquatic vegetation by
the structures.
The NWP is specific to the purpose of moorage of vessels, thus
structures will be small compared to the vessels. Fleeting and
anchorage areas are determined by the U.S. Coast Guard and indicated on
navigation charts. They are for concentrating vessels in an area that
minimizes navigation impacts to other vessels while the former vessels
wait for unloading cargo, etc. Shading impacts are not expected as
these areas are usually in deep water and the structures and buoys
seldom produce measurable shading. NWP 9 is reissued without change.
10. Mooring Buoys: The Corps did not propose changes to this NWP.
One commenter expressed concerns about the limitations or
specifications on the size or number of mooring buoys, and the
environmental restrictions on location.
Comments regarding specific areas that should be excluded or other
special restrictions that are needed to protect special areas such as
shellfish beds or submerged aquatic vegetation should be dealt with by
contacting the appropriate district and requesting the addition of
regional conditions. Based on our experience, we do not anticipate that
the mooring buoys and anchorage systems will have more than minimal
adverse effects, either individually or cumulatively. NWP 10 is
reissued without change.
11. Temporary Recreational Structures: The Corps proposed no
changes to this NWP. A few commenters were concerned that the NWP may
[[Page 65884]]
cause removal of riparian vegetation and alter the nearby shore aquatic
environment, and that the Corps should define ``temporary,'' ``small
floating docks'' and ``seasonal''. A commenter requested that the NWP
be expanded for certain commercial activities other than jet ski,
parasailing, and similar rentals, provided the activity is of temporary
duration.
We disagree with the approach of attempting to define national time
limitations on temporary or seasonal structures because of the seasonal
variations for different recreational activities from region to region.
Regional conditions can be developed for the NWP and/or the District
Engineer may use discretionary authority, on a case-by-case basis, if
duration, structure size, or location require such action. Limiting the
NWP to discrete events would greatly reduce its utility. This
nationwide permit was proposed to authorize temporary recreational
structures which overall would have only minimal adverse effects. Given
this, and the discretionary authority provisions, the Corps believes
that the NWP adequately balances the need for temporary recreational
structures in waters of the United States, while protecting riparian
and aquatic resources. NWP 11 is reissued without change.
12. Utility Line Backfill and Bedding: The Corps proposed rewording
of this NWP to include discharge of dredged material from the trench
excavation, and requested comments establishing limitations for special
aquatic sites. A large number of comments addressed NWP 12. Based on
the comments we received and the Corps internal evaluation of the
implementation of NWP 12, we have made substantial changes to this
permit. We have added a PCN review for four situations: for any
activity that would be authorized under NWP 12 that involves more than
500 linear feet in waters of the United States; for any project that
involves mechanized landclearing of forested areas; for any utility
line that is placed parallel to a water of the United States; and for
any activity involving authorization under section 10 of the Rivers and
Harbors Act of 1899. We believe that these increased limitations will
ensure that no more than minimal adverse effects to the aquatic
environment will occur.
The comments were closely split between supporting issuance without
changes and supporting issuance with limitations. Several commenters
were opposed to reissuance based on environmental impacts. Many
commenters, requesting limitations, made suggestions on those limits:
200 linear feet, 1,000 linear feet in forested wetlands, 6 inch
diameter utility line, 0.33 and 0.5 of an acre. Some commenters
suggested PCN procedures above particular limits: 6 inch diameter line,
0.5 of an acre. The allowed duration of side casting also received
suggestions: no side casting, 14 days, 30 days. Work with a maximum
width of 30 feet was suggested by two commenters.
The variation in wetland values across the nation dictates that a
limitation, or threshold for PCN, not overly restrict use of the NWP or
unnecessarily add administrative burden to any large geographic area.
Potential impacts will vary with the construction methods. The acreage
limitation presents the possibility that high value wetlands could
suffer more adverse effect at less acreage than the limitation/PCN
threshold, but low value or easily recovering wetlands would require
unnecessary added administrative procedure when exceeding an acreage
limitation/threshold. An acreage limit of 0.33 acres would allow a
nearly 2\1/2\ mile long utility line trench that was one foot wide.
This could be a minimal impact in some areas, but may require an
individual permit in other geographic areas and/or wetland types or
values.
Based on careful review of all the comments, we have determined
that certain limitations should be established and that certain
activities will require a Corps-only PCN. We have added section 10 to
this permit to allow districts to authorize projects that cross
navigable waters. To ensure the navigable capacity of such waters will
not be adversely affected, we have also established a PCN for any
authorization that involves work in section 10 waters. We have also
explicitly stated that mechanized landclearing, including landclearing
of forested wetlands, for overhead utility lines may be authorized
under NWP 12. To ensure that only minimal adverse effects will occur,
we have established a PCN requirement for any utility line that will
require landclearing of forested wetlands. We have also included the
requirement for a PCN whenever a utility line is placed parallel to a
stream bed. Finally, in order to ensure that only minimal adverse
effects will occur, we have established a PCN requirement for any use
of NWP 12 that exceeds 500 linear feet in waters of the United States.
Several commenters recommended that stream crossings be allowed
only if perpendicular to the stream. One commenter suggested that bank
stabilization must occur by segments rather than at the completion of
the entire project. Another stated that laying utility lines on bottoms
of streams should be discouraged. Several recommended that alternative
routes be examined more thoroughly. We have added several PCN
requirements, including one for situations where a utility line is
proposed to be placed parallel to a stream bed. Generally, utility
lines are placed perpendicular to a stream and we are, with this
notice, directing the Corps districts to critically evaluate any
projects that may be proposed to be placed parallel to a water of the
United States. Moreover, we believe that it should be an exceptional
case where a district authorizes a utility line within, or within
wetlands parallel to, a stream bed for more than 100 feet. With the
added PCN review, by the Corps, for any project that should be subject
to a generalized alternative analysis (i.e., more than simply adjusting
the alignment slightly to ensure minimal adverse effects), the district
will use its discretionary authority to require an IP.
Several commenters believe that this permit should not be used in
combination with other permits (see additional discussion on stacking
permits). This restriction would be too limiting for many projects that
have minimal adverse effects for the entire project including utility
lines. At times, utility lines are considered ``single and complete
projects'' as they support existing developments but will also support
other future development. We have added a PCN for any stacking of NWP
12 with any other NWP.
Several commenters appeared to be confused with the word
``subaqueous''. Two commenters suggested slightly different wordings
and deleting ``subaqueous''. The term subaqueous referred to below the
surface of the ground (wetland) or water surface; a line laid on the
surface does not require a section 404 permit but any mechanized
landclearing to lay such a line would. We have dropped ``subaqueous''
as we feel the reference is not needed and confusing. One commenter
desired authorizing maintenance of landclearing. Most maintenance
consists of cutting the wetland vegetation above the soil, which is not
regulated under section 404 when the soil is not disturbed. If
maintenance of a utility line corridor involves landclearing as defined
in 33 CFR 323.2(d)(1), it would require additional authorization.
One commenter was confused about the ``single and complete
project'' requirement for an NWP combined with an individual permit in
relation to the required section 10 permit for utility
[[Page 65885]]
lines crossing navigable waters. The NWP authorization covers the
excavation and backfill portion in conjunction with the remaining
single and complete portion of the line that continues beyond the
navigable water, usually in wetlands. ``Single and complete'' for a
linear project under the NWPs is defined at 33 CFR 330.2(i); briefly, a
linear project is single and complete at each widely separate water
crossing. Also, the navigable water portion of the structure (utility
line) required a permit under section 10 because it was not included in
NWP 12 authorization. Although we have added section 10 to NWP 12, the
single and complete provision for linear projects remains in effect.
In the past, NWP 12 has not included Section 10 authorization,
which has added an individual permit procedure (usually a Letter of
Permission) to the authorization of a utility line in navigable waters.
The Corps has decided to add section 10 authorization to minimize the
administrative procedures and decrease the time needed for
authorization. However, we are requiring a PCN for review of navigation
impacts and requiring procedures for notifying the National Oceanic
Atmospheric Administration for charting the utility line to protect
navigation.
A few commenters were confused by the term ``parallels a water.''
The Corps had suggested, in the proposal, that care should be taken
during the placement of a utility line parallel to a waterbody. We are
concerned with the potential adverse effects associated with the
placement of a utility line parallel to a waterbody and, therefore,
have modified and clarified this language. We have removed the proposed
language and have added a PCN requirement for the placement of a
utility line within a water of the United States parallel to a stream
and have clarified that ``parallel to a stream'' means installation of
a utility line lengthwise to the bed of the stream. Furthermore, we
have added a PCN requirement for proposed projects that would involve
placing utility lines along stream beds (see discussion above). Two
commenters suggested clarifying whether the NWP included discharges for
access roads and foundations for structures supporting overhead
transmission lines. Structural fills for overhead utility line supports
are often permitted by NWP 25. Access roads could be authorized by NWP
14 or 26 in some cases. The Corps has clarified that mechanized
landclearing is authorized for overhead utility lines as long as the
width is kept to the minimum necessary. Furthermore, as discussed
above, we have added a Corps-only PCN for landclearing forested areas.
Access roads and foundations for overhead lines are not authorized. NWP
12 is reissued with modifications as discussed above.
13. Bank Stabilization: The Corps proposed no changes to this NWP.
Two commenters wanted to keep the current language of the nationwide
permit with no changes, while another expressed general support.
Several commenters objected to limitations on length of project area or
quantities of fill, particularly for flood control structures. A few
commenters stated that the limitation of one cubic yard of fill per
linear foot should not include any earthen backfill to return the bank
to a former footprint, and that the limitation should apply only to
fills that encroach into the pre-existing waterway. Their reasoning is
that this would allow reconstruction of failed levees and road
embankments and would not result in a loss of wetlands or jurisdiction
relative to the pre-failure condition. These commenters also note that
the prohibition of any fill in any special aquatic site is a
restriction that unduly constrains projects and often renders this NWP
inapplicable. They recommend that impacts to special aquatic sites of
up to 0.1 acres be allowed without notification, and that greater
acreage be allowed with notification. These commenters further
recommend that use of biotechnological slope protection or other
methods relying on vegetative stabilization be allowed greater PCN
thresholds to encourage such usage.
We believe expansion of the scope of this NWP would result in a
potential for more than minimal adverse effects. The permit is designed
specifically for the protection of existing bank lines at the time of
protection and does not authorize filling to restore the original bank
line or any other intermediate alignment of the bank. Adjustment in the
alignment of the bank is allowed only for reasonable and practical
design and construction considerations within the limitations of NWP
13.
Two commenters recommended removing the special aquatic site
restriction for ephemeral watercourses when there is no flow under the
premise that such areas are defined as wetlands under a broad
definition. These commenters also recommend that the nationwide permit
recognize that there is likely to be a construction zone 30 feet or
greater along the bank within jurisdictional areas where project
impacts will be incurred for installation of bank protection.
We disagree that wetlands in ephemeral systems are necessarily of
lesser value than other waters simply because they do not contain water
at all times of the year. Therefore, removal of special aquatic site
restrictions is not warranted. We do recognize that certain bank
stabilization projects necessitate keying in the toe of the slope to
ensure adequate protection, and that such work requires a construction
footprint that will impact additional areas beyond the waters of the
United States. If any such adverse effects are likely to be more than
minimal for a particular waterbody, the Corps will add regional
conditions to ensure that only minimal adverse effects will occur.
One commenter stated that notification is an unnecessary level of
Federal review, and that it usurps the states' authority to assess
site-specific impacts to water quality under section 401.
This is not an expansion of authority because notification has been
a condition of this nationwide permit since its last re-authorization
in January 1991. Likewise, it does not usurp the authorities of the
states pursuant to section 401 of the Clean Water Act. A state may
condition its 401 water quality certification for this NWP so that it
will review projects over 500 feet in length, and issue or deny site-
specific section 401 certification.
Many commenters were opposed to the reissuance of this nationwide
permit because they perceived it to be used in ways inappropriate to
its intended use, such as a precursor to channelization of
watercourses. Specifically, they suggested that permittees might use
this nationwide permit to construct flood control works, and how
riprapping affects existing hydrology with adverse effects on habitat
and adjoining properties. Several commenters stated that this
nationwide permit should specifically exclude channelization, noting
that bank stabilization projects can adversely affect habitats adjacent
to jurisdictional waters that may support plant or animal populations
that are equally limited. We agree that channelization is an
inappropriate use of this nationwide permit. It is the responsibility
of each district to determine whether a particular project is
contributing to greater than minimal cumulative adverse effects, and to
exercise discretionary authority if they believe such effects are
occurring.
Several commenters noted that this nationwide permit should be used
selectively on a regional or watershed basis to prevent cumulative
adverse effects in sensitive habitats. Others stated that this
nationwide permit needs
[[Page 65886]]
better monitoring and compensatory mitigation, or should always require
compensatory mitigation. One commenter stated that this nationwide
permit should not be used in conjunction with any other nationwide
permit.
We believe the provisions for regional conditioning and asserting
discretionary authority will ensure that greater than minimal adverse
effects do not occur. Mitigation is being required where appropriate to
achieve minimal adverse effects, but we do not believe that all bank
stabilization projects require mitigation because many projects have
minimal effects, in fact often positive effects, on aquatic resources
without mitigation. For example, riprap on an eroding barren bank will
typically increase habitat diversity and reduce turbidity in downstream
waters.
One commenter stated that because erosion has occurred after some
projects permitted under this nationwide permit were constructed, the
Corps should not reissue it unless it can demonstrate that such
projects will perform as expected. Another commenter noted how some
projects of inadequate design integrity would eventually wash
downstream with potentially adverse effects on water quality, aquatic
habitat, public safety, and aesthetics.
The Corps evaluates projects to determine if they are in compliance
with Clean Water Act requirements, including whether the project will
only result in minimal adverse effects for NWPs, and to ensure that
they are not contrary to public health or safety. We believe that the
bank stabilization methods employed are generally effective even in
cases where there is no reporting to the Corps. Although a washout of
shore protection could occur, such unusual flows would also wash out
unprotected shorelines and structures or natural features such as
trees, rocks, and the like, all of which would wash downstream.
One commenter questioned whether this nationwide permit could be
used in lieu of NWP 2 for stabilization projects in artificial canals.
Another commenter recommended that this nationwide permit should be
used only on artificial canals.
NWP 13 can be used in lieu of NWP 2 where appropriate. However,
restricting its use only to artificial canals would unduly restrict its
utility.
Several commenters recommended retaining the notification
requirements, particularly for those projects in excess of 500 linear
feet. Several commenters called for lowering the PCN threshold to 100,
200 or 300 feet to more appropriately address cumulative impacts. One
commenter suggested that the cubic yardage limit for notification be
100,000 cubic yards. Several commenters stated that the nationwide
permit should specifically mention the types of bank stabilization
allowed, with an emphasis on methods that did not include landscaping.
Many others recommended excluding certain materials such as gravel,
asphalt, tires, automobiles, building rubble, poured concrete, driven
sheet piles, and structural timber bulkheads. Two commenters stated
that projects authorized under this nationwide permit should not
include seawalls or bulkheads on open or natural shorelines and should
not allow backfilling for the purpose of creating fast land or
reclamation. Three commenters stated that use of concrete rubble should
only be used if it meets acceptable riprap standards for size and
density, is free of contaminants, is faced with acceptable rock riprap,
and has all rebar cut flush with the surface.
We believe the terms and conditions that prohibit discharges in
special aquatic sites (including wetlands) prohibit the use of
unsuitable and toxic materials, limit the shore stabilization to 1
cubic yard per linear foot, and require that the proposed stabilization
be the minimum necessary, are sufficient to alleviate these concerns.
In some cases where the adverse effects could be more than minimal
(i.e., discharges on more than 500 feet of shoreline, and/or greater
than one cubic yard per linear foot of shoreline) notification to the
DE is required. Also, where potentially high value aquatic resources
may be impacted with less than 500 feet of bank protection, the Corps
division can regionally condition NWP 13. The intent is to accommodate
a wide range of users, techniques and materials with minimal time delay
and maximum protection of valuable wetland resources. NWP 13 is
reissued without change.
14. Road Crossing: The Corps proposed no changes to this NWP. Many
commenters suggested that this NWP should not be reissued or should be
modified for a number of reasons including the following: it should not
be used for large road projects with multiple wetland crossings; the
breadth of the road crossings are not constrained; the acreage
allowance should be reduced; and this NWP is most frequently stacked
with other NWPs, causing adverse effects to exceed minimal. A few
commenters recommended that a maximum acreage impact limit be applied
to large road projects with multiple crossings of waters of the United
States (including wetlands and other special aquatic sites).
The Corps regulatory policy regarding linear projects and what
constitutes a single and complete crossing is well established (RGL 88-
6). Individual channels in a braided stream or individual arms of a
large, irregularly-shaped wetland or lake, etc., are not separate
waterbodies. For linear projects, the single and complete project
requirement for individual NWPs will be applied to a waterbody at a
single location. That is, each waterbody impacted by a roadway will be
considered a single and complete crossing at that location. Where a
roadway intersects a single waterbody such as a meandering river at
separate but distinct locations, each crossing is considered a single
and complete crossing. The purpose of the ``single and complete''
language is to preclude situations where one project will repeatedly
crisscross one waterbody when such multiple crossings can be
practicably avoided.
Several commenters expressed support for this NWP as proposed.
Others indicated that there should be no limits on the length or area
of a crossing. Two commenters suggested that the NWP 26, 1 to 10 acre
provision be incorporated and that acreage be the only controlling
limit. Two other commenters recommended the length be increased to 400
linear feet and one suggested that the acreage be increased to acre. A
few commenters opposed the inclusion of the ``Notification'' general
condition in this NWP.
We carefully considered the suggestions to limit the width of the
roadway as well as to expand the length and maximum acreage for the
roadway. We concluded, however, that the limits in the NWP as proposed
represent a tested balance. With regard to stacking NWP 14 with other
NWPs, we have conditioned this NWP to not allow NWP 18 or NWP 26 to be
combined with it for the purpose of expanding the allowable road
crossing footprint. In addition, a Corps-only PCN is required any time
this NWP is combined with any other NWP. (See discussion on ``Stacking
of NWPs'' in section II above.). NWP 14 is reissued with the
modification discussed above.
15. U.S. Coast Guard Approved Bridges: The Corps proposed no
changes to this NWP. A few commenters expressed concerns about the
impacts associated with the construction of access fills, fill removal,
and restoration of preconstruction grades. Another commenter was
concerned about revegetation with native species after completion of
such preconstruction
[[Page 65887]]
grade restoration activities. One commenter encouraged inclusion of
conditions to require excavation and removal of old approach fills when
they have been replaced. Another commenter stated that the impacts
related to Coast Guard bridges can be significant and that issuance of
the NWP contributes to an incomplete and less than thorough review by
the Coast Guard. A few commenters felt that the Corps had
inappropriately delegated Section 404 responsibility to another agency.
Based on the requirement of this NWP and the ability of the DE to
assert discretionary authority should the nature of the impacts
warrant, we believe that this NWP is an efficient means to regulate the
construction of bridges. The regulations also allow for the development
and inclusion of conditions to address particular project aspects such
as removal of old approach fills, revegetation specifications, etc. The
comments regarding the delegation of regulatory authority are
apparently based on the misinterpretation of the permit language. The
Coast Guard has been given the task of reviewing such bridge
construction pursuant to section 9 of the Rivers and Harbors Act of
1899. A Department of the Army permit pursuant to section 404 of the
Clean Water Act is still required for the discharge of dredged or fill
material into waters of the United States associated with the
construction of the proposed bridges and causeways. NWP 15 is reissued
without change.
16. Return Water From Upland Contained Disposal Areas: The only
change the Corps proposed to this NWP was a change in wording to note
that, in certain circumstances, dredging may now require a section 404
permit. One commenter requested that the NWP require an NPDES permit. A
couple of commenters recommended that the NWP not be applicable to
dredged material taken from areas of known sediment contamination or
where there is reason to believe that the discharge is contaminated. A
few commenters stated that water quality violations could result from
the NWP unless it is limited to the activities authorized by, and
operating in conformance with, currently valid permits or exemptions.
One commenter suggested that all return water be tested for
contaminants. A couple of commenters thought that the original text and
the clarification were unclear without specifying when the activity may
require a section 404 permit relative to the excavation rule, or when a
section 10 permit may be required.
This NWP authorizes the return of effluent to waters of the United
States from upland contained disposal areas, and is not intended to
address the dredging activity. However, a Department of the Army permit
pursuant to section 10 is required for structures or work in, or
affecting, navigable waters of the United States, as that term is
defined in 33 CFR parts 322 and 329. A Section 404 permit is required
for any addition or redeposition of dredged material associated with
any activity that destroys or degrades a water of the United States as
defined in parts 323 and 328, unless the discharger demonstrates to the
satisfaction of the Corps or EPA, as appropriate, prior to the
discharge, that the activity will not have such an effect. The effluent
subject to NWP 16 has been administratively defined as a discharge of
dredged material. Based upon Corps experience and knowledge of dredging
and disposal operations, we believe that the technology is readily
available to control the quality of the return water from contained
upland disposal sites. Any adverse environmental effects resulting from
this type of activity would be minimal, provided the effluent meets
established water quality standards and adequate monitoring of the
activity is performed to assure compliance with these standards. With
this in mind, it is our intent to provide the states an opportunity to
review each activity under this NWP authorization to assure compliance
with state water quality standards. We see no need to require
additional state review unless the water quality certification for the
NWP has been denied. The prospective permittee must receive an
individual certification or waiver from states that have denied water
quality certification for the NWP authorization. The Corps has no
authority to determine NPDES program requirements. NWP 16 is reissued
with the proposed changes.
17. Hydropower Projects: The Corps proposed no changes to this NWP.
The comments received addressing NWP 17 were all related to the
potential impacts associated with hydropower projects and stated the
position that NWP 17 is contrary to the NWP program's provision
allowing only activities of similar nature and of minimal impacts.
We are maintaining the notification requirement for this NWP to
enable us to assess the nature of the impacts associated with each
project and whether to exert discretionary authority. In addition, the
Federal Energy Regulatory Commission has the responsibility of
examining environmental impacts for those small hydropower projects at
existing reservoirs. NWP 17 is reissued without change.
18. Minor Discharges: The Corps proposed a modification to the
wording of this NWP to clarify how the Corps measures excavation
activities for the purpose of determining compliance with the NWP. This
was based on existing guidance developed after the Corps revised the
definition of ``discharge of dredged material'' at 33 CFR 323.2(d) to
clarify when the Corps regulates incidental discharges of dredged
material associated with excavation activities. (See August 25, 1993,
Federal Register, 58 FR 45008.) Based on this existing procedure, this
clarification does not affect the number and type of activities that
are regulated under this NWP. When measuring the quantity of the
discharge of dredged or fill material, the Corps will include the
volume of any excavated area (i.e., the volume of the substrate
excavated) which is below the plane of the ordinary high water mark
(OHWM) or high tide line (HTL). Many commenters expressed uncertainty
regarding how to measure the 25 cubic yards of discharge authorized by
this NWP. Some commenters requested that the allowable area of impact
be increased to 2/10 acres. The Corps continues to believe that the
current volume and acreage limits are, and have proven to be,
appropriate to ensure that the adverse effects are no more than minimal
for the purpose of authorization by this NWP and is not changing those
limits. We are providing the following guidance to clarify how NWP 18
quantities are measured.
How to determine quantities under NWP 18: NWP 18 applies to all
waters of the United States. For projects that are;
Below and waterward of the OHWM or HTL:
Volume: The cubic yardage of any dredged or fill material placed;
plus,
The cubic yardage of the substrate excavated.
Acreage: The acreage of any areas that are filled, excavated,
flooded and drained.
Landward of the OHWM or HTL:
Volume: Not applicable. Only acreage limits apply.
Acreage: The acreage of any areas that are filled, excavated,
flooded and drained.
For projects that are both below and waterward of the OHWM or HTL
and that are landward of the OHWM or HTL, the acreage is the sum of the
two acreages as determined above, while the volume is that measured
below and waterward of the OHWM or HTL. For example, a permittee may
place 50
[[Page 65888]]
cubic yards in a wetland landward of the OHWM provided the fill does
not exceed \1/10\ of an acre and the District Engineer determines that
the impacts are minimal. In this example, there was no material placed
below and waterward of the OHWM or HTL, therefore the cubic yard
(volume) limit was zero and not exceeded. Furthermore, the total
acreage was less than \1/10\ acres. NWP 18 may be combined with NWP 19
to authorize activities in navigable waters of the United States (i.e.,
Section 10 waters). NWP 18 is issued as proposed.
19. Minor Dredging: The Corps proposed a modification to this NWP
to authorize, under section 404 of the Clean Water Act, the incidental
discharges associated with the dredging activities in navigable waters
of the United States. This was necessary after the Corps revised the
definition of ``discharge of dredged material'' at 33 CFR 323.2(d) to
clarify when the Corps regulates incidental discharges of dredged
material associated with excavation activities. (See August 25, 1993,
Federal Register, 58 FR 45008.) This clarification does not affect the
number and type of activities that are regulated under this NWP. Many
commenters supported keeping the quantity limit at the existing level.
We agree and continue to believe that the 25 cubic yard limit is
acceptable. We have allowed and will continue to allow NWPs 18 and 19
to be used for the same project in section 10 navigable waters of the
United States. NWP 19 cannot be used in section 404-only waters. We
believe that the requirement of NWP 19 that prohibits excavation in
wetlands, coral reefs, sites supporting submerged aquatic vegetation,
and anadromous fish spawning areas, and the requirement of NWP 18 that
requires notification in special aquatic sites, including wetlands, and
the requirement of NWP 18 that requires notification in excess of 10
cubic yards, will ensure that impacts resulting from these activities
will be minimal. For example no more than 35 cubic yards could be
excavated from navigable waters of the United States without a
notification to the Corps. Furthermore, no activity between 35 and 50
cubic yards of combined excavation and discharge could occur without a
notification to the Corps and a Corps determination that the adverse
effects would be minimal. NWP 19 is issued as proposed.
20. Oil Spill Cleanup: The Corps proposed no changes to this NWP.
One commenter suggested a regional condition to require that activities
be conducted in conformance with the National Response Team Integrated
Contingency Plan Guidance. Even though this guidance is used to assist
an applicant to develop one plan to satisfy several applicable laws, it
is strictly voluntary on the applicant's part to develop one
consolidated response plan. The Corps believes it is most important to
verify that the response is conducted in accordance with the Spill
Control and Countermeasure Plan required by 40 CFR 112.3 and any
existing state contingency plan, and that the regional response team
(if one exists) concurs with the proposed containment and cleanup
effort. This NWP authorizes the structures and fills used to effect the
oil spill cleanup. Other Federal and state agencies have lead
responsibility to administer oil pollution laws. NWP 20 is reissued
without change.
21. Surface Coal Mining Activities: The Corps proposed the
consideration of expanding this NWP for mining activities on previously
mined lands that have not been subject to restoration. Several comments
supported the proposed inclusion of previously mined areas and a few
expressed opposition. Some commenters stated that this proposal should
not apply to wetlands restored under the Surface Mining Control and
Reclamation Act (SMCRA) of 1977 or NWP 27. Another commenter questioned
whether the NWP applies to pre-1977 SMCRA. Comments about mitigation
presented a wide range of possibilities: Support for on-site mitigation
after completion of mining; mitigation ratio should be set at 1:1 on-
site as proposed; flexibility is needed to apply mitigation on-site
and/or off-site; and mitigate off-site before mining begins; mitigate
concurrent with mining. One commenter stated that restricting the
mitigation to on-site would economically stop a mining operation. Many
commenters opposed the bond, stating that this is already required by
the SMCRA and at least some state agencies.
The remining of abandoned areas requires application under Title V
of the SMCRA. As with new mining, the Office of Surface Mining (OSM)
coordinates such proposals with the Federal and state resource agencies
and determines whether or what mitigation is required. The Corps has
decided that specific language referencing remining abandoned mines is
not required within the nationwide permit text. The NWP, as worded,
will allow remining of abandoned mines. The Corps will strongly
encourage remining of abandoned mines where the wetlands are of low
value, rather than mining new areas with wetlands that were not
previously disturbed. The Corps will review the Title V application for
compliance with the NWP. The Corps will only require a bond for
mitigation when OSM or the state agency has not required a bond.
Requiring a bond in certain cases is consistent with existing policy.
(See 33 CFR 325.4).
One commenter expressed concern over the area impacted (i.e.,
ancillary activities). The NWP specifically applies only to the coal
excavation area. Additionally, any facilities, such as buildings, to be
placed in waters of the United States would require separate
authorization by the Corps.
Several commenters desired restrictions such as set-backs, no
stream relocations, no impacts to wetlands which would be difficult to
replace, and acreage limits. Another requested an exemption from
mitigation for certain chemical compositions of the wetland soil. We
believe that each case will be so specific that it is best reviewed
case-by-case.
A couple of commenters stated that the Corps was delegating its
authority to the OSM and that this NWP did not comply with section
404(e). Minimizing duplication of Federal regulation is one of the
goals of the President's Wetland Plan and is one of the principal
purposes of NWP 21. We believe that the Corps should not duplicate the
intensive review performed by OSM in coordination with other Federal
and state resource agencies. OSM complies with the same Federal
environmental laws, such as National Environmental Policy Act, Fish and
Wildlife Coordination Act, Endangered Species Act, and National
Historic Preservation Act as the Corps does in executing its regulatory
program. The Corps reviews the Title V information to assure that the
impact analysis and mitigation are in compliance with the Corps policy
and regulations. The NWP authorization is not valid until the mining
activity has been authorized by OSM or by a state with an approved
Title V program. To assure that the Corps receives a complete
application, we have revised the NWP to include a requirement for an
OSM or state-approved mitigation plan. NWP 21 is reissued with the
modifications described above.
22. Removal of Vessels: The Corps proposed no changes to this NWP.
However, a few commenters requested that the term ``minor fills'' be
the same as that for Nationwide Permit 18, and one commenter requested
that this NWP require a PCN that would specifically require contacting
the State Historic Preservation Officer (SHPO) to ensure against damage
to vessels potentially eligible for listing in the National Register.
Another commenter requested
[[Page 65889]]
notification to the SHPO since the Abandoned Shipwreck Act gives states
title to, and management authority of, certain shipwrecks.
The criteria described in Nationwide Permit 18 for minor discharges
of dredged or fill material could be used as a guide in evaluating the
environmental impacts, but is not meant to be a definition of ``minor
fill''. This term is intended to be subject to the DE's interpretation
on a case-by-case basis as a project is being evaluated. The existing
language of NWP 22 does not allow its use for any ship or vessel that
is listed or eligible for listing unless the district determines that
the activity complies with the National Historic Preservation Act. The
Corps will, in any particular case, coordinate with the SHPO regarding
historic properties, including concerns with regard to the Abandoned
Shipwreck Act. We believe that the restrictions within this NWP in
conjunction with General Condition 12 and the Corps regulations at 33
CFR 330.4(g), are sufficient to protect against damage to historic
properties. NWP 22 is reissued with no changes.
23. Approved Categorical Exclusions: The Corps proposed no changes
to this NWP. A few commenters supported expansion of Nationwide Permit
23 to cover state environmental program approvals, especially for flood
control work, and all emergency work by a public agency.
State programs are not required to comply with NEPA and states have
varying environmental protection programs. Therefore, the Corps cannot
base a nationwide permit on state approvals as NEPA Categorical
Exclusions (CE). Regional and programmatic general permits are
effective tools that can be developed at the district level for state
programs that meet or exceed the Federal CWA requirements. Emergency
work can normally be authorized under other nationwide permits such as
NWP 3 and 37, or the Corps emergency permit authority.
A few commenters requested the NWP be regionalized with regional
conditions and asked that districts publish public notices for proposed
CEs and lists of approved CEs. The Division Engineers have the
authority to add regional conditions to any nationwide permit and are
currently in the process of considering recommendations for conditions
on these nationwide permits. All CEs are available in the Federal
Register and we intend to make them available on our Internet homepage
which is currently being developed.
A number of commenters opposed continuation of the existing
nationwide permit. They stated that the permit is often misused,
especially by the Highway Departments. Most of these commenters called
for revision of NWP 23 to require periodic review (every 5 years at the
renewal of the general permit) and assessment of approved CEs (citing
new knowledge and outdated agency Environmental Assessments), limits on
the area of wetlands that may be impacted (similar to Nationwide Permit
26), and limiting (to 25-50 feet) or excluding stream channelization.
Some commenters called for excluding bridges and culverts in those
streams that support fish, and excluding stacked concrete slabs that
create low water dams.
The Corps does, upon being furnished a notice of an agency's CE,
solicit public comment, and review the CE for approval for
authorization by this nationwide permit. We may include conditions for
authorization as a part of that approval. This is an ongoing process
and the U.S. Coast Guard has recently updated their CEs and requested
approval for authorization under the NWP. RGL 96-1 has already been
issued for Coast Guard CEs and we will soon publish our findings and
determinations in the Federal Register. We will continue to monitor the
CEs approved for authorization under this nationwide permit and make
adjustments through changes in conditions, new approvals, and removal
of previously approved CEs when warranted. General Condition 4
prohibits substantial disruption of movement of aquatic life species
indigenous to the waterbody.
Some commenters called for not renewing Nationwide Permit 23 due to
misuse, violations of 404(e), and illegal delegation to other agencies
of the Corps determination of which projects are subject to Clean Water
Act review.
We believe the Corps current review process of the lead agency's
decision ensures that the CE is not misapplied. The Corps does not
necessarily approve all of an agency's CEs. Only those consistent with
the NWP program are approved. Furthermore, in the recent action on the
Coast Guard CEs, the Corps requires a PCN for some actions with the
potential to result in more than minimal impacts.
One commenter requested that we require a cultural resources
inventory before approving CEs.
Compliance with cultural resource requirements is the
responsibility of the lead Federal agency. CEs are developed in
accordance with NEPA. All other Federal environmental laws and
regulations, including the cultural resource and historic preservation
laws, must still be satisfied by the agency proposing the CE. NWP 23 is
reissued without change.
24. State Administered Section 404 Programs: The Corps proposed no
changes to this NWP and the only commenter providing comments specific
to the permit expressed support for this nationwide permit as written.
NWP 24 is reissued without change.
25. Structural Discharge: Corps proposed clarification that this
NWP may be utilized for general navigation purposes. A few commenters
recommended issuance of this NWP as proposed. One commenter stated that
this NWP should not be reissued because it has not been demonstrated
that the adverse environmental effects are only minimal, and that
individual permits provide greater protection to environmental
resources. We believe the impacts resulting from the portion of these
projects regulated by the Corps are typically very small and localized.
Any project can be further conditioned to ensure that adverse effects
are minimal or mitigated appropriately, if necessary. If it is
determined that any particular project would not qualify for this NWP
because adverse effects are not minimal, the DE can exercise
discretionary authority and instruct the applicant on the procedures to
seek authorization under an IP.
One commenter requested clarification of the significance of
changing the previously worded ``piers and docks'' to ``mooring
cells''. Another commenter stated that ``docks and piers'' should be
specifically included, noting the current authorization does include
such wording.
We recognize that piers and docks are not mentioned in this NWP;
however, they would be covered if their construction methods entailed
discharge of material into tightly sealed forms or cells. We do not
feel it necessary to specifically include piers and docks, because
their construction often requires driving piles, which typically does
not require a Section 404 permit. The structure itself may require a
Section 10 permit if located in navigable waters of the United States.
One commenter stated that this NWP should include well pads for
monitoring, and surveillance wells used for monitoring pollutants and
groundwater parameters of aquifers.
We do not believe it is necessary or appropriate to include such
uses under this NWP, because Nationwide Permit 18, covering Minor
Discharges, would be more suitable.
One commenter noted that this NWP does not propose any limitations.
Several others recommended limitations
[[Page 65890]]
on this NWP, including no more than 20 mooring cells, size thresholds
such as less than 8,000 square feet for pile-supported structures, or
spacing between piles of at least six feet. Two commenters stated that
this NWP should authorize the side-casting of material for placement of
the forms or construction of pile caps. One commenter stated that
mechanized landclearing for access to the project site for the
placement of structural members should be authorized by this NWP. One
commenter recommended that this NWP specifically not authorize river
boat mooring cells for gambling purposes.
We believe that the actual footprint of project impacts typical of
the types discussed in the NWP are limited sufficiently such that
further limitations are not necessary. However, each district may
implement special conditions or regional general conditions on a case-
by-case basis as deemed necessary. We agree that side-casting of
material for construction of pile caps is appropriate provided it is
kept to the minimum necessary, that material is not placed in such a
manner that it is dispersed by currents or other forces, and that
preconstruction contours are maintained. However, we do not believe
that mechanized landclearing to access the project site should be
authorized under this NWP. Finally, we do not see the significance of
differentiating between mooring cells used for general navigation
purposes versus those that may be used for mooring of gambling vessels.
NWP 25 is reissued with the proposed clarification.
26. Headwaters and Isolated Waters Discharges: The Corps proposed
two options to change the previous thresholds associated with this NWP
and committed to regional conditioning of the NWP to ensure minimal
adverse effects. Numerous comments were received and are addressed by
categories in the following text. Based on the recommendations from the
public and other agencies, as well as the Corps internal review of
implementation of NWP 26 over the past 5 years, we have made
substantial changes to the permit. We have reduced the thresholds of
NWP 26 to \1/3\ and 3 acres, added a limitation for linear waterbodies
of 500 linear feet, and stated that we believe that most projects above
\1/3\ acre will result in mitigation requirements to offset adverse
effects to the aquatic environment. We believe that these additional
limitations that we have placed on NWP 26 will greatly improve the
environmental protection afforded by Corps review of projects under
this NWP and will better ensure that no more than minimal adverse
effects will occur. In addition to the substantial limitations that we
have placed within the terms and limitations of the NWP 26 at the
national level, we are directing our districts to carefully evaluate
the aquatic systems in their districts and, working with the Corps
divisions and the other Federal and state agencies, add additional
limitations as necessary for added protection of the aquatic
environment. These changes are detailed below in our discussion of the
comments we received.
General: More than 500 commenters provided comments specifically
addressing NWP 26. Numerous commenters expressed opposition to NWP 26,
expressing concern that NWP 26 authorizes activities that are not
similar in nature and activities that have greater than minimal impacts
both individually and cumulatively, concluding that NWP 26, in many
cases, is therefore, ``illegal''. Many of these commenters believe that
the NWP should be deleted while many acknowledge a necessity for such a
nationwide permit, but feel that the NWP must be modified to respond to
the growing concerns for the potential cumulative effects resulting
from activities authorized by this permit.
Many of these commenters also expressed concern that wetlands
impacted by NWP 26 (those above headwaters and isolated wetlands) are
as valuable, if not more so, than other wetlands to which NWP 26 does
not apply. These commenters state that there is no scientific evidence
that supports the concept that these wetlands are of less value and
refer to a 1995 National Academy of Sciences' National Research Council
Report, which states: ``the scientific basis for policies that
attribute less importance to headwater areas and isolated wetlands than
to other wetlands is weak.'' Some of these commenters also commented
that there is no scientific basis for the threshold limits.
Numerous commenters expressed the view that the NWP has worked
well, that there is no evidence to indicate that it is resulting in
more than minimal adverse effects and that the loss or further limiting
of NWP 26 would result in increased regulatory burdens on the public,
less regulatory certainty, unacceptable work load increases for the
Corps, increased processing times, project delays, and an overall
lessening of the regulatory program's ability to protect waters of the
United States.
The Corps proposed 3 options for acreage limits that would define
when a PCN must be submitted. These options were:
Option 1: 1 to 10 Acres (no change)
Option 2: \1/2\ to 5 acres
Option 3: \1/3\ to 3 acres
Thresholds: Approximately 70% of the more than 400 comment letters
on these threshold options expressed a preference for Option 1, no
change in the thresholds of 1 and 10 acres.
Many of these commenters suggested that a lowering of the
thresholds would result in a lessening of the practice by developers of
minimizing their wetland fills to fit under the thresholds because the
thresholds would be too low to meet. The result then being, that they
would be forced into the PCN or individual permit process and would
apply for non-minimized fills. Many commenters also estimated that the
Corps work load would increase significantly, thus causing the Corps to
be less effective in its mission to protect wetlands. A few commenters
believed that in those cases where mitigation is required for all fills
(often a state or county requirement), that the effect of causing
developers to reduce fill areas to even smaller fills (by lowering the
threshold to 1/3 of an acre) could be more, smaller mitigation sites.
A few commenters preferred changing the thresholds to option 2.
Approximately 30% of those commenting on this subject preferred
option 3, (\1/3\ & 3 acres). Most of these commenters expressed the
view that the current thresholds are allowing more than minimal adverse
effects and that the lower levels would better assure that the NWP
would not result in more than minimal adverse effects.
A few commenters recommended that the thresholds be increased to
enhance flexibility and program efficiencies.
The Corps acknowledges the concerns, expressed principally by
natural resource agencies and environmental groups, for the potential
level of adverse effects resulting from NWP 26 in its present form. The
Corps also acknowledges the concerns of the regulated public for the
potential lessening of regulatory certainty and flexibility in the
program through further limitation of the scope of NWP 26.
The Corps agrees that the level of cumulative adverse effects under
NWP 26 must be reduced and more effectively mitigated. We will later
discuss the manner in which the Corps has addressed the concerns
regarding impacts to the aquatic environment. We also believe it is
important to understand the history and derivation of the Corps NWP
program.
In 1977, the Corps developed the headwaters and isolated waters
[[Page 65891]]
nationwide permit (NWP 26) as we extended section 404 jurisdiction to
all waters of the United States (including isolated and headwaters
areas). Prior to 1977, the Corps did not require Section 404 permits
for discharges of dredged or fill material into waters in these
geographic areas. Over the past 19 years NWP 26 has been revised in an
attempt to ensure that activities are not authorized under NWP 26 if
such activities would result in more than minimal adverse effects,
either individually or cumulatively, to the waters of the United
States, including wetlands. While the Corps had to assure compliance
with this statutory requirement (Clean Water Act section 404(e)), it
also had to consider the environmental and programmatic implications of
an extremely heavy regulatory workload.
The most recent data and scientific literature indicate that
isolated and headwater wetlands often play an ecological role that is
as important as other types of wetlands in protecting water quality,
reducing flood flows, and providing habitat for many species of fish
and wildlife. For example, in many parts of the Nation, isolated and
headwater wetlands comprise a significant portion of the functioning
wetlands that remain in existence. As previously noted, the National
Academy of Sciences concluded in its 1995 report on wetlands that there
is no scientific basis for policies that attribute less importance to
headwater areas and isolated wetlands than to other wetlands.
In light of our internal evaluation of NWP 26, and a careful
consideration of all comments regarding its reissuance, we have
determined that a modified approach to NWP 26 and eventual replacement
of NWP 26 is necessary in order to ensure that in the future no more
than minimal adverse effects occur to the waters of the United States,
both individually and cumulatively. This determination is supported
fully by the majority of comments from the public and other Federal and
state resource agencies. Therefore, NWP 26 will be immediately modified
and eventually replaced with a new approach to authorizing activities
with minimal adverse effects. This new approach will take into account
the Corps workload and a desire to reduce unnecessary regulatory
burdens.
The approach that we are implementing today will ensure that only
activities resulting in minimal adverse effects go forward under NWP
26, while maintaining flexibility and expedited permitting for
applicants proposing such projects. Based on the desire to develop a
more specific data base on the specific types of activities authorized
under NWP 26 and an improved data base on impacts of projects
authorized under NWP 26, we have determined that a phased approach to
NWP 26 is necessary. In this regard, we are, with this notice, issuing
a modified NWP 26 for a period of two years rather than the normal 5
year period for all other nationwide permits. During this two year
period, which starts with today's date, the Corps will collect
additional data on the types of activities regulated and develop,
propose, and issue new nationwide permits to replace the revised NWP
26. Although we recognize the ecological importance of isolated and
headwater wetlands and the potential for impacts to these resources by
NWP 26, we believe it is necessary to reissue NWP 26, in its more
restrictive and environmentally sensitive form, during the two year
phase out period to ensure fairness to the regulated public and to
allow for development of activity specific replacement NWPs. The
replacement permits, which will be activity specific, will be published
for public review and comment approximately 18 months from today
(approximately May 1998). The Corps is entering this initiative with a
completely open view to the final outcome and would welcome any
comments from the public over the next six months regarding specific
categories of activities that should be considered for new nationwide
permits. Such comments should be directed to the address listed in the
ADDRESS section of this notice. For example, NWP 29 is an activity-
based NWP for single family residences with a \1/2\ acre fill
limitation. Another example could be fills associated with the
expansion of existing commercial developments, with acreage limit
specific conditions, and a PCN to evaluate the potential for more than
minimal impacts. In taking this approach, the Corps will evaluate the
types of activities that are currently authorized under NWP 26 and
identify appropriate limitations for the activity-specific NWPs to
ensure that the ``minimal adverse effects'' requirement of section 404
(e) is met. It is also important to note that the public will have an
opportunity to formally comment on the proposed replacement permits
once they are officially proposed in approximately 18 months.
During the two year period that may be required to issue activity-
specific permits to replace NWP 26, we believe that certain
modifications to NWP 26 are necessary. Thus, we are changing the
threshold limits to \1/3\ and 3 acres. Using these thresholds, the
maximum fill allowable under NWP 26 will be 3 acres. Discharges over
\1/3\ acre will require a PCN. Although a number of projects between 3
and 10 acres will now need individual permits, we believe that the
increase in workload will be manageable. Moreover, a key element of the
Corps' ability to manage the increased workload is the requirement of a
Corps-only PCN for fills between \1/3\ and 1 acre. While we do not
believe that the notification of other agencies is necessary for
activities in the \1/3\ to 1 acre range, we will provide quarterly NWP
26 data to the Federal resource agencies for their programmatic review.
The Corps will also coordinate its evaluation of those proposed
activities that involve issues relevant to other Federal agency
expertise (e.g., endangered species, water quality standards). In
addition, the Federal resource agencies will be provided a copy of the
PCN for fills over 1 acre and given an opportunity to comment to the
Corps before the work is verified as authorized under NWP 26.
The Corps will continue to work closely with Federal and state
resource agencies to add necessary regional conditions and procedures
to the revised NWP 26. As with all nationwide permits, we will
emphasize the requirement to avoid and minimize impacts on-site.
In summary, the revisions proposed today for NWP 26, and its
planned replacement with activity-specific general permits, recognize
fully the requirement to ensure that adverse effects to the waters of
the United States are no more than minimal and the need to provide an
expedited review process for truly minor activities. In taking the
phased approach, we allow for an orderly transition from the previous
NWP 26 to a set of activity-specific replacement nationwide permits. It
is our intent to make this change in a manner that minimizes disruption
and confusion for the regulated public, while at the same time
improving environmental protection.
To further ensure that geographical areas or waters do not receive
greater than minimal adverse effects through the excessive use of NWP
26, we are with this notice directing district and Division Engineers
to carefully review areas under their authority with a view toward
additional regional limitations to NWP 26. We believe that every
district has high value aquatic areas where NWP 26 must be further
limited or revoked.
Further, Division Engineers may revoke the NWP for specific
geographical areas. District engineers
[[Page 65892]]
also have the authority to exercise discretionary authority and require
an IP on a case-by-case basis when they determine that the ``minimal
adverse effects levels'' will be exceeded. Furthermore, we are
directing district and Division Engineers to further reduce impacts by
requiring mitigation for most projects from \1/3\ to 3 acres through
the PCN process. In most cases, mitigation for impacts below 1 acre
will be most beneficial through mitigation banks and ``in lieu fee''
programs. In lieu fee programs allow permittees to obtain mitigation
through funds paid to groups who will use these funds to restore,
create, enhance, and preserve wetlands. Such groups include states,
counties and land trusts. Such in lieu fee approach is currently in
place and very successful in the state of Ohio. Our Huntington
district, in conjunction with the state, established a fee structure
for NWP 26 authorizations. The fees go to Ohio Department of Natural
Resources and are used to acquire, restore and manage former wetlands.
Review Period: A large percentage of those who commented on the
proposal to increase the 30 day pre-construction notification period,
expressed opposition to the proposal. They commented that 30 days is
adequate and that an increase in the review period would only result in
reviewers delaying their review rather than conducting more extensive
reviews; that more extensive reviews, if conducted, are unnecessary for
projects of NWP 26 magnitude, and that the proposal would result in an
unnecessary extension in the processing time of what is currently a
good expedited process. Approximately 30% of the commenters felt that
the increase should be implemented in order to provide for more
thorough review. One commenter recommended the elimination of the ``de
facto'' authorization provision, because there is no logic to allowing
the elimination of wetlands as a result of administrative situations.
Having given full consideration to the comments received and
discussed the topic at length with the resource agencies involved, we
have concluded that it is necessary to extend the review period to 45
days while maintaining the ``de facto'' authorization provision.
Increasing the review period by only 15 days will, we believe, allow
adequate and efficient review of the increased number of NWP 26
applications expected due to the lowering of the PCN thresholds, and
will not place an unfair burden on the regulated public. The de facto
authorization provision is considered necessary to provide a reasonable
control on the review period for these relatively minor actions and to
provide as much regulatory certainty as possible to the regulated
public.
Regionalization: Many Commenters supported the concept of
regionalization of the NWPs by districts either because of the
opportunity to provide additional protection to sensitive ecological
areas, as well as more appropriately to provide protection for
regionally differing environments.
Many commenters were opposed to the concept of regionalization of
the NWPs by districts because of concern that districts would,
unnecessarily, further limit the applicability of the NWPs when they
have been found by the Corps to authorize less than minimal adverse
effects nationwide.
The Corps believes there are benefits to be gained through regional
conditioning of NWP 26, both for natural resource protection and for
the regulated public. Guidance being provided to the districts and
divisions will require that the districts provide opportunity for full
public review and comment in the process for establishing regional
conditions, and will require that they consider modifications of the
acreage limits and limitations of use, based on types of aquatic
resources and activities. They will also consider potential impacts to
the regulated public, to district workloads, and the ability of the
district to effectively implement the regulatory program. Further
definition of the permit, through regional conditions, will provide the
regulated public with increased certainty and predictability while at
the same time further ensuring against use of the permit under
circumstances that may cause greater than minimal adverse effects. The
fact that districts and divisions do regionalize NWP 26 through
regional conditions to protect certain aquatic systems is one of the
reasons that the Corps has determined that only minimal adverse effects
occur nationwide.
Notification: Several commenters felt that all actions permitted
under NWP 26 should be reported to the Corps to provide the Corps with
full knowledge of the extent and impacts of such actions. In general,
these same commenters also suggested that the Corps keep more extensive
records of this information and make it readily available to the
general public.
One commenter expressed concern for the lack of data collected by
the Corps with regard to the use of NWP 26 and the corresponding lack
of analysis to support the determination that NWP 26 results in no more
than minimal adverse effects. A few commenters expressed the belief
that the Corps is not fulfilling an earlier commitment to monitor and
evaluate the impacts of NWP 26.
The reduction of the PCN threshold from 1 to \1/3\ acre will
significantly increase the percentage of activities reported to the
Corps and provide an adequate level of information for continued
monitoring of authorizations under NWP 26. Notification will have
essentially three threshold limits. We have established a reporting
requirement for all impacts up to the minimum threshold of \1/3\ acre.
This report, which will include basic information such as the name of
the permittee, location of the activity, description of the work, and
the types and size of the impacted area, will be required within 30
days of the completion of the work. We are encouraging support of, and
participation in, this important information gathering process so the
Corps can better determine ways to protect wetlands in a fair, flexible
and effective manner. Next, we will require a ``Corps-only''
notification for impacts between \1/3\ and 1 acre. These PCNs will be
reviewed by the Corps to assure compliance with permit conditions, and
to determine what level and type of mitigation should be required.
Finally, authorization under NWP 26 will require full resource agency
coordination under the notification procedures for impacts between 1
and 3 acres. For all the PCNs, the Corps review will ensure that no
more than minimal adverse effects will occur and that appropriate
mitigation will be required.
The Corps collected data from its district offices on the use of
all NWPs for Fiscal Year 1995, including NWP 26. The data shows that
13,837 activities were authorized by NWP 26, impacting approximately
5020 acres of wetlands, with an average of 0.36 acres of impact per NWP
26 authorization. The Corps received approximately 5809 acres of
mitigation for these impacts, yielding a mitigation ratio of
approximately 1.15:1. To ensure continued monitoring of NWP 26 and all
other NWPs, the Headquarters office will begin collecting quarterly
data from the field beginning in the second quarter of fiscal year
1997. The data parameters will include, at a minimum, the use of the
NWPs, both actual and estimated (for those with non-reporting
thresholds), impact acreage, resource types, geographic locations
(e.g., counties) and mitigation received. These parameters will be
further set forth in guidance to the districts following the
publication of this Federal Register notice and after coordination with
the other Federal resource agencies.
[[Page 65893]]
Mitigation: Several commenters suggested that a threshold be set
for requiring mitigation. Some recommended a threshold of one acre be
set, above which mitigation would be required and one recommended
mitigation be provided at a 2:1 ratio. A review of NWP 26 verifications
provided in fiscal year 1995 indicates that more than an acre of
mitigation was provided for every acre filled. We believe that this
fulfills the national goal of no net loss in wetlands. We do not
believe it is appropriate to require mitigation in every case or at a
standardized ratio nationwide. We believe mitigation determinations are
better established on a local and/or case-by-case basis. Therefore, we
have not required a specific ratio as a general condition of NWP 26.
However, we do believe that most actions involving fill of 1/3 acres or
more will have some level of mitigation, based on the Corps
determination of aquatic functions and values lost. Corps districts may
establish fixed ratios for particular waterbodies or specific types of
waters in their areas. Districts may also set specific in lieu fee
schedules within their areas.
Many commenters raised concerns that, by applying compensatory
mitigation in the context of a NWP, the Corps authorizes activities
that, but for the mitigation, may have more than minimal adverse
environmental effects. Those commenters were concerned that the CWA
requires that only activities with minimal effects may be authorized by
a general permit. Activities that have more than minimal adverse
effects are subject to the individual permit process and the associated
analysis of alternatives, individual public notice procedures, and
other aspects of individual review that help to ensure that potential
adverse effects are fully avoided and minimized before any activity is
approved.
Given these concerns, the Corps will be considering whether or not
modifications to the mitigation provisions of the regulations are
appropriate and will be meeting with other Federal agencies to discuss
this issue. In the interim, the Corps is seeking specific comment on
the use of compensatory mitigation in the context of the Nationwide
Permit program and any recommendations for modification to the
mitigation provisions. Should the Corps determine that revision to this
policy is appropriate, a rulemaking process to change the regulations
at 33 CFR part 330 may be necessary. This process would include notice
and full opportunity for public participation.
Subdivisions: One commenter recommended deleting all wording on
subdivisions except that which clarifies the single-use applicability
of NWP 26. More specifically the commenter recommends deletion of the
exemption provisions of the NWP 26 subdivision rules.
One commenter suggested that ``commercial,'' ``industrial,'' and
``office'' subdivisions should not be held to the same restrictions as
residential development because of their more extensive level of
planning and design.
One commenter suggested that the October 5, 1984, date for
subdivision exception be changed to January 21, 1992.
We have evaluated these comments and continue to believe that the
subdivision language in NWP 26 is appropriate. We do not agree that, as
a general matter, commercial office or industrial projects are
necessarily subject to better planning than many large residential
developments.
Environmental Impact Statement: A number of commenters recommended
that an Environmental Impact Statement (EIS) or study be conducted
prior to the re-issuance of NWP 26, because of their perception that
the use of the NWP is causing or will cause extensive impacts to
wetlands.
The Corps collected data from its district offices on the use of
all NWPs for Fiscal Year 1995, including NWP 26. These data show that
13,837 activities were authorized by NWP 26 impacting approximately
5,020 acres of wetlands, with an average of 0.36 acres of impact per
NWP 26 authorization. The Corps received approximately 5,809 acres of
mitigation for these impacts, yielding a mitigation ratio of
approximately 1.15:1. To ensure continued monitoring of NWP 26 and all
other NWPs, the Headquarters office will begin collecting quarterly
data from the field beginning in the second quarter of Fiscal Year (FY)
1997. The data parameters will include, at a minimum, the use of the
NWPs, both actual and estimated (for those with non-reporting
thresholds), impact acreage, resource types, geographic locations
(e.g., counties) and mitigation received. These parameters will be
further set forth in guidance to the districts following the
publication of this Federal Register notice and after coordination with
the other Federal resource agencies.
Furthermore, the Corps has conducted an analysis of the
environmental impacts associated with the re-authorization of this
permit in compliance with the requirements of NEPA. This analysis has
been documented in an Environmental Assessment in accordance with NEPA
and resulted in a Finding of No Significant Impact in accordance with
NEPA. Therefore, an EIS is not required. The Corps believes that the
modified NWP 26 structure, along with regional conditions and case
specific discretionary authority, will ensure that adverse effects are
no more than minimal on a watershed basis. We believe that it is
inappropriate to simply sum the total acres of impact nationwide and
assume significant impacts. We believe that environmental effects must
be viewed on a watershed basis. With the substantial level of
mitigation required by the Corps for impacts to the higher value
wetlands, we believe that the environmental effects are not
significant.
Corps Workload: The Corps agrees with the majority of commenters
that a general permit, such as NWP 26, is necessary for fair,
effective, and efficient implementation of the Corps regulatory
program. Although the final NWP 26 we are issuing today will increase
the Corps workload, we believe that overall workload will remain
manageable.
To evaluate the effects of the current changes to NWP 26 on Corps
workload, we analyzed data collected during surveys of the Corps
districts during FY94 and FY95. Additionally, data from quarterly
reports was used to determine IP workload. We estimate that the changes
we are implementing today will increase the number of PCNs for NWP 26
(due to the lowering of the PCN threshold) by nearly 10,000, compared
to the estimated 2,700 evaluated in 1996. However, the vast majority of
the additional 10,000 additional PCNs will be Corps-only evaluations.
We estimate that the NWP 26 we are issuing will result in approximately
500 additional individual permits nationally (approximately a 10%
increase over Fiscal Year 1996). This increase will be due to
applicants requesting IP authorization of projects with impacts greater
than 3 acres, but which would have qualified for verification under the
old NWP 26 guidelines. The Corps would not be in a position to evaluate
all, or even a majority, of the activities we currently authorize under
NWP 26 without severe impacts to the Corps responsiveness to the
regulated public. The Corps regulatory program verified approximately
14,000 NWP 26 actions (including both those projects for which a PCN
was required and those for which no PCN was required but verification
was requested) and evaluated 5,040 IP actions in FY96. The workload
associated with the additional processing of just the 14,000 currently
verified NWP 26 cases as IPs, would increase the IP work load by a
factor of 4 to approximately 29,000. An IP
[[Page 65894]]
workload increase of this magnitude would render the program
ineffective, and would be a disservice to the American public and
overall environmental protection. Additionally, it is estimated by
Corps districts that another 20,000 NWP 26 activities were accomplished
during FY96 without the requirement for reporting to the Corps.
Complete elimination of NWP 26 would result in an increase in the IP
workload by approximately seven fold. This level of increase would
greatly extend the processing time for IPs, make Corps resources
unavailable for jurisdictional determinations and enforcement actions,
and severely reduce our ability to continue to protect the aquatic
environment.
Others: The Corps intends to initiate substantial improvements to
its data collection for all NWPs, particularly NWP 26. Furthermore,
during the two year period that NWP 26 is currently issued, the Corps
will collect data on the types of activities as well as impacts to the
aquatic environment and mitigation required. We are also instituting a
self reporting requirement for fills below 1/3 acre. The Corps will
continue to collect data on acres of impact and mitigation on a
permanent basis.
A few commenters recommended including a linear footage limitation
on headwater systems of 200-500 feet (consistent with other NWP
limitations) for application to linear wetlands and headwater streams.
We concur with this comment and have placed such a limitation on
NWP 26 for activities directly affecting (filling or excavating) more
than 500 linear feet of the stream bed of creeks and streams.
Therefore, no activity that adversely effects greater than 500 linear
feet of the stream bed can be authorized under NWP 26. The threshold of
500 linear feet was chosen to maintain consistency within the NWP
program (500 linear feet is the PCN threshold for NWPs 12 and 13). We
believe this additional limitation will enhance the program's ability
to ensure that projects with potentially greater than minimal impacts
will not be authorized under the NWP.
One commenter suggested that if wetlands are the driving force in
lowering acreage limits, then lower acreage limits should only be set
for impacts to wetlands and that it may be appropriate to raise the
acreage limitations for projects that affect only ephemeral drainage
areas. A few other commenters similarly recommended that the term
``headwaters'' include all naturally ephemeral streams regardless of
their mean annual flow, in that they only exceed the average annual
flow criteria because of high peak flows during the winter months,
which artificially skew the average flow rates.
We believe the existing definition for headwaters, as currently
written in 33 CFR 330.2(b), adequately provides for the consideration
of ephemeral tributary systems and accommodates this comment. In
addition, headwaters whether vegetated or not provide important flood
storage and water quality values to the overall aquatic system. If some
ephemeral drainage areas are truly low value the districts can develop
and issue regional general permits to expand coverage.
Several commenters expressed the concern that NWP 26 reduces the
program's protection of vernal pools and requested that the filling of
vernal pools not be allowed under NWP 26.
We believe the provisions for ``discretionary authority'' at both
the division and district levels is adequate to accommodate the
concerns for unique waters.
One commenter stated that the NWP does not meet the regulatory
requirements of the Natural Resources Conservation Service's Wetland
Conservation Provisions (Swampbuster program) and continues the
application of inconsistent standards on the communities regulated by
the section 404 and Swampbuster programs.
The Corps finds no conflicts between this NWP and programs
administered by the Natural Resource Conservation Service and is
working closely with the NRCS to provide consistency in our programs.
Since the standards for the two programs are different, as are the
program goals, some differences will exist. We are committed to
minimizing the differences to the extent possible.
One commenter stated that Corps districts differ in the
methodologies used to calculate or determine where the ``5 cubic feet
per second'' point is on waterways and that the methodology should be
standardized. The commenter also recommended that there be a designated
record keeping method and that the information be distributed or made
available to the public.
We believe that the definition of headwaters is adequate to
establish consistency in determination methodologies. The determination
is normally an analytical one; however, abbreviated or simplified
estimating methods are considered appropriate on a regional basis. We
do intend to establish standard reporting methods for data collection.
One commenter felt that there is a need to clarify the definition
of ``single and complete project'' for this NWP, suggesting that the
permit should be applied differently (perhaps different thresholds) for
projects that differ in purpose and size.
The Corps has provided guidance to the field regarding the
definition of ``single and complete project'' and believes it would be
inappropriate and inconsistent to modify that guidance for this permit.
NWP 26 is designed to address minor filling activities with less than
minimal impacts. Neither the magnitude of the project, nor the level or
public interest, nor the nature of the applicant, are relevant
considerations to the decision on whether the project's adverse effects
are minimal. Our definition of ``single and complete'' project does not
allow piecemealing projects regardless of the type of project.
One commenter requested a definition of special aquatic sites.
The definition of ``special aquatic sites'' is provided in the
section 404(b)(1) Guidelines (40 CFR 230.3(q-1)). No further definition
is considered necessary for the purposes of this nationwide permit.
A few commenters recommended that the Corps coordinate all
applications with natural resources agencies, including applications
for activities under one acre in size.
The Corps believes that activities involving less than 1 acre of
waters of the United States are generally minor in nature, and that
multiple Federal agency review is not necessary. The Corps staff is
well trained in the biological and environmental sciences and is fully
qualified to assess potential impacts. The Corps experience with agency
response to the existing PCN for 1-10 acres indicates that the natural
resource agencies, which also have limited human resources, provide
very few site specific substantive responses at the lower end of the 1-
10 acre range. Thus, we would expect even fewer comments for projects
with impacts below 1 acre. Also, the additional administrative workload
associated with agency coordination would seriously impact the Corps
ability to focus on projects with greater impact.
A few commenters recommended the Corps strictly enforce the
requirement for all NWP 26 applicants to submit a wetland delineation
with the pre-discharge notification.
The Corps strives to implement the program in as reasonable and
flexible a manner as possible so as not to impose unnecessary burdens
on members of the regulated public. We do require wetland delineations
to the extent necessary to identify the resources being affected and
the necessity for adequate mitigation when appropriate. The level of
[[Page 65895]]
refinement of such wetland delineations is left to the discretion of
the districts on a case-by-case basis. NWP 26 is reissued with
modifications as discussed above.
27. Wetland and Riparian Restoration and Creation Activities: The
Corps proposed to modify this NWP to allow projects to occur on any
Federal lands. We also requested comments on whether to allow creation
of wetlands and their subsequent reversion on reclaimed surface coal
mined lands, to eliminate the 5 year window of reversion opportunity
and allow the reversion to occur at any time in the future, to allow
use of NWP 27 for any voluntary restoration/creation project, to
include enhancement as an option, and to require a written agreement in
all cases.
There were several commenters for and an equal number of commenters
against the proposed modification of the permit to allow projects to
occur on all Federal lands. One commenter felt that the proposed permit
would grant more flexibility on Federal lands. Another commenter felt
that the Corps should not require review and approval of an Operation
and Maintenance Plan for projects on Federal lands or carried out by
Federal agencies since the Corps does not review or approve such plans
for projects on private lands. We believe that all Federal agencies
should be encouraged to participate in wetland restoration and creation
projects and have modified the permit for all Federal lands. Because
the permit is limited to restoration, enhancement and creation
activities and because authorizations for those projects occurring on
Federal land will not provide the opportunity for reversion of the
wetlands without a permit from the Corps, we concur that an Operations
and Maintenance Plan approval is unnecessary and we have not included
this requirement in the final permit.
Several commenters supported the consideration of expanding the
permit to allow for the creation of wetlands and their subsequent
reversion on reclaimed surface coal mined lands, provided the wetlands
were voluntarily created under an OSM permit or an applicable state
program permit. A few were opposed to this idea. Some stated that
wetlands created due to hydrologic or topographic features of the
landscape that may occur during reclamation should not be excluded. One
commenter stated that the existence of a Surface Mining Control and
Reclaimation Act (SMCRA) permit document and a certification that
reclamation has been performed in accordance with permit requirements,
should be sufficient to document the fact that the wetland construction
was voluntary and non-mitigative. The Corps believes the potential for
gaining several thousand acres of additional created wetlands through
this provision warrants modification of the permit as outlined in the
proposal. The permit wording has been changed to include wetlands
voluntarily created under an OSM permit or applicable state program
permit, with limitations not allowing its use for wetlands created as
mitigation, nor to wetlands or waters that would be created naturally
due to hydrologic or topographic features, nor to wetlands created for
a mitigation bank. Reversion of such voluntary wetlands in the future
is authorized by this NWP subject to the terms and conditions of this
NWP.
A few comments were received regarding the consideration for
eliminating the 5 year window of reversion opportunity and allowing the
reversion to occur at any time in the future. Some commenters felt that
the 5 year window of reversion opportunity should be retained, while
others felt it should be removed. Some commented that removal of the 5
year limitation on the window would attract more conversion of
abandoned coal mining sites to wetlands. The 5 year window for
reversion of wetlands was adopted for written agreements that had
limited terms, for wetland restoration and creation, between landowners
and the Natural Resources Conservation Service (NRCS) and the U.S. Fish
and Wildlife Service (FWS). For example, upon the expiration of such a
20 year agreement that landowner could revert the wetland back to the
prior condition of that land. In most cases, the reversion would
involve activities that require a permit from the Corps. We believe
that in order to authorize these reversion activities by the NWP for an
agreement that had expired, there needed to be a time limit after the
agreement expired, to complete any reversion, or an IP would be
necessary. The 1996 Farm Bill (Pub. L. 104-127) has included provisions
for NRCS to document voluntary wetland restoration, enhancement, and
creation activities that can be reverted to the prior condition at any
time. In order to support and encourage such voluntary restoration,
enhancement, and creation activities, we are authorizing those
activities and the reversion of such wetlands to their prior condition
by this NWP. While in these cases there will not be a 5 year reversion
limit, since the agreement/documentation does not have a time limit, we
are requiring a notice to the Corps with adequate documentation by NRCS
of the prior condition.
Some commenters felt that the permit should be expanded to include
any voluntary restoration or creation projects, to include private
parties on private lands without signed agreements with either the NRCS
or the FWS. A large number of commenters expressed opposition and an
equally large number of commenters expressed support for allowing the
permit to authorize projects on non-Federal public lands. Some
commenters stated that activities on state fish and wildlife management
areas, conducted by a state agency, should be included in this permit.
One commenter felt that the Corps should grant state agencies a
statewide exemption for managing wildlife populations. Some stated that
they would support expanding use of this permit to voluntary
restoration and creation activities by state and local government
agencies provided those agencies demonstrate a long-term commitment to
maintenance of the created or restored area. The Corps believes that
including authorization for all creation, enhancement, and restoration
activities on any lands (Federal, non-Federal public lands and private
lands) would provide a less burdensome permit process and provide
additional incentives for wetland creation, enhancement, and
restoration projects. The nationwide permit has been modified to
include authorization for public and private entities to conduct
creation, enhancement, and restoration activities on any lands, but
with no opportunity for reversion of those wetlands without a permit
from the Corps, provided the permittee notifies the District Engineer
in accordance with the ``Notification'' general condition. This NWP
cannot be used to authorize the reversion of such wetlands.
With regard to whether or not to include enhancement as an option,
one commenter stated that while most enhancement projects have little
adverse effect to wetland functions, measures considered by some
parties to be enhancement may at times be considered by others to have
unacceptable negative effects on wetland functions and values. Another
commenter stated that the inclusion of enhancement without technical
criteria for project review may increase the risk of existing areas of
wetland being converted to other wetland types. The existing NWP
provided for enhancement of wetlands, but this was not clearly stated,
by providing for ``restoration of * * * degraded non-tidal wetlands.''
Further, we believe that
[[Page 65896]]
this NWP should authorize the enhancement of degraded wetlands. We
agree, and do not intend, for this NWP to allow ``enhancement'' for the
conversion of one wetland type to another. We have included enhancement
projects but have limited enhancement under this NWP to improving
degraded wetlands.
We concur with these comments and believe that to ensure no more
than minimal impacts will result from the authorization, we cannot
include enhancement within the scope of this NWP.
Several commenters felt that there was a need for a binding
agreement in all cases, even where voluntary restoration is occurring
under other Federal or state programs without a written agreement,
while others felt that binding agreements were not necessary. One
commenter stated that the written agreements do not have to be
easements or contracts, which may dissuade many landowners from
participating, that the agreements could be management agreements which
become conditions to the permit. One commenter stated that for
voluntary restoration and creation projects involving a Federal or
state agency, an agreement should be required, and for a voluntary
project that does not include Federal or state cost sharing or
technical assistance, no agreement should be required provided
hydrologic and vegetative baseline conditions are documented. We have
concluded that the requirement for a binding agreement is not necessary
in all cases. However, where the authorization provides opportunity for
reversion of the created or restored wetland to its non-wetland state
(i.e., in those cases involving private parties entering into
contracts/agreements with, or documentation of prior condition by, the
NRCS or FWS under special wetland programs or an OSM or applicable
state program permit), then a binding agreement, documentation, or
permit by NRCS, FWS, or OSM or applicable state agency, which clearly
documents the prior condition, must be required. We have clarified in
the NWP that reversion can only occur where such instruments, which
clearly document the prior condition, are excepted. In all other cases,
where the reversion opportunity is not included and a permit will be
required for alteration of the restored, enhanced or created wetland or
no binding agreement or documentation of the prior conditions will be
required.
A few commenters stated that there was no need to document baseline
conditions. Some commenters felt that in cases of purely voluntary
efforts, there does not appear to be a compelling need for rigorous
documentation of the baseline conditions. Others felt that this permit
should include conditions that require documentation of existing use,
hydrology and vegetation baseline conditions and allow reversion to
previous use provided it does not exceed the previous conditions. Some
felt that the format for documenting baseline conditions should be
standardized, while others felt that the baseline condition could be
documented in a predischarge notification, by way of a wetlands and
waters of the United States delineation. Some commenters suggested that
this permit should not authorize conversion to pre-restoration
conditions where baseline conditions cannot be documented. The Corps
believes it is only necessary to document prior (baseline) conditions
for those cases where there would be an opportunity for reversion of
the restored or created wetland to their original condition.
Furthermore, for those cases where the opportunity to revert the
wetland to a non-wetland status is available, documentation of the
prior condition is required though NRCS, FWS or OSM programs. The Corps
agrees that the prior condition must be documented in such cases.
Consequently, prior conditions will be documented in those cases
allowing reversion of wetland to non-wetlands. If that documentation
cannot be provided at the time the reversion is requested, then an IP
would be required for any reversion. In those cases where a permit from
the Corps will be required for alteration of the created or restored
wetland, we do not believe that the prior condition need be documented.
Some commenters stated that notification to all resource agencies
should be included with this permit and further that the Corps should
be required to notify all interested persons that could be affected by
the restoration or creation activities. Others advocated limitations
such as requiring notification with agency coordination for activities
exceeding \1/3\ acre. Some commenters were afraid that restoration of
wetlands to create waterfowl feeding areas could, as an example,
adversely impact other species, which could be identified through
agency coordination. The Corps believes, based on the changes and
modifications discussed above and the scope of the authorized
activities, that the activities and impacts authorized by this NWP will
not only be minor in nature, but will result in positive contributions
to the national goal of increasing wetland areas. We believe
notifications to the agencies and all affected parties would be
unnecessarily burdensome to all the parties and would be excessively
duplicative governmental review without commensurate environmental
benefits.
One commenter suggested that the permit not authorize discharges
into open water. The Corps has not limited the permit to not apply to
open water. To do so would excessively limit the use of the nationwide
permit. It is anticipated that most activities authorized under this
permit will be in channels, ditches and some small impacted streams. It
is unlikely that fills in larger open water areas such as lakes or
rivers would occur, particularly with the requirement that impacts be
less than minimal.
Another asked that this preamble clarify the relationship between
this NWP and the proposed new NWPs A for Moist Soil Management and NWP
B for Food Security Act Minimal Effect Exemptions. This NWP is for the
restoration, enhancement, or creation of wetlands while NWP 30 Moist
Soil Management (proposed NWP A) is for management of wetlands and
proposed NWP B is for wetland mitigation created for the loss of
wetlands on agricultural lands.
Another commenter suggested clarification of the term ``non-tidal''
in the context of this permit, suggesting that term should only apply
to naturally non-tidal wetlands and not to formerly tidal wetlands
which have been diked and are now freshwater wetlands. The term tidal
is defined in the Corps regulations at 33 CFR 328.3. Non-tidal refers
to the existing conditions and would include former tidal areas that no
longer meet the definition of tidal waters.
One commenter also suggested that this NWP apply to compensatory
wetland mitigation for Federal aid transportation projects, and another
recommended that this permit not apply to projects that are primarily
stormwater treatment projects. Compensatory wetland mitigation
activities required under Corps permits (such as those for FHWA
projects) are normally authorized by the permit requiring the
compensatory mitigation and this NWP would generally not apply. This
NWP authorizes the restoration, enhancement, and creation of wetlands
and does not address their need. If wetlands are created for stormwater
treatment projects they would be authorized, if they meet the terms and
conditions of this NWP. However, generally reversion of such wetlands
would normally not be authorized by
[[Page 65897]]
this NWP. NWP 27 is reissued with changes discussed above.
28. Modifications of Existing Marinas: The Corps proposed no
changes to this NWP. One commenter stated that compliance with state
permits or exemptions would be required where submerged state-owned
lands were included in the modification of an existing facility. The
intent is not to allow any additional slips or docks, thus additional
water quality, navigational or safety impacts would not occur. We
recognize the need for compliance with all existing applicable
regulations. The issuance of this NWP would not obviate the need to
obtain other Federal, state, or local authorizations required by law.
NWP 28 is reissued without change.
29. Single-Family Housing NWP: The Corps proposed modifying the
notification process for this nationwide permit to provide for resource
agency coordination during the notification review process.
General: A large number of commenters opposed reissuance of NWP 29,
expressing the opinion that the permit does not conform to the
requirements for general permits, violates the Fish and Wildlife
Coordination Act and is not in compliance with the National
Environmental Policy Act. One commenter stated the belief that the
permit is inconsistent with Florida statutes.
The Corps believes that NWP 29 is in compliance with all Federal
laws and regulations. The permit is for actions that are similar in
nature, both in size and type (less than \1/2\ acre, single family
residences). With the general, regional, and specific conditions, the
district's opportunity to review each case through the notification
process, and the district's opportunity to exercise discretionary
authority, we are confident that individual and cumulative adverse
effects will not exceed minimal. Initial development and issuance of
the permit along with this reissuance has been done in full compliance
with 33 CFR part 330, which includes compliance with the Fish and
Wildlife Coordination Act and NEPA. If the permit is in some way not
consistent with state law, the state can deny its section 401 water
quality certification. Furthermore, issuance of any Corps permit does
not allow applicants to violate state, local or other Federal laws.
One commenter opposed the NWP because the program usually
prohibited houses in wetlands before this NWP. Another commenter
expressed opposition based on the belief that the issuance of the
permit will increase property values and cause taxes to increase.
The Corps regulatory program has never prohibited fills for the
construction of homes. IPs were required, however, which in some cases
may have resulted in denials due to the availability of practicable
alternatives available to the applicant. However, most projects were
permitted following the review and analysis associated with the IP
process for single family residences. Moreover, virtually every IP that
was issued involved only on-site avoidance, minimization, and, in a few
cases, compensatory mitigation, because offsite alternatives for this
type of project are not generally viewed as practicable. The IP process
continues to be required for proposals which exceed the \1/2\ acre or
the minimal effects limitations of the permit or where the Corps
district uses its discretionary authority. The effects of the permit on
property values relative to state and local taxation programs are
unknown to the Corps and is not an issue for consideration by the Corps
regulatory program.
A couple of commenters expressed the opinion that the NWP was
created only for political reasons in that there was no natural
resource protection basis for its creation. The permit was initially
issued and is being reissued to provide regulatory relief to small
landowners for projects with minimal adverse effects on the aquatic
environment. While an important goal of the Corps regulatory program is
to protect the Nation's aquatic resources, providing timely and
efficient decision-making and rendering fair and reasonable decisions
for the applicant are also established goals of the program. We believe
this permit is consistent with the goals of the regulatory program,
including protection of the aquatic environment. Virtually every single
family residence application for fill was, in the past, authorized as
long as impacts on-site were minimized. The Corps assures this same
level of protection of the aquatic environment through the NWP 29 PCN
process.
Many commenters supported reissuance of NWP 29, but these
commenters were split with regard to whether the notification of the
actions should be provided to resource agencies prior to authorization.
One commenter recommended that we carefully avoid unnecessary
regulatory oversight with notification. The Corps has concluded that
the notification procedures for this permit should include agency
coordination. The permit has been reworded to effect this change.
Some commenters recommended that the permit be temporary because it
attempts to assist small landowners who had unknowingly purchased
wetlands or purchased the land prior to wetlands regulation. The
commenters recommended we not reissue the permit after the year 2001,
at which time the regulatory program will have been in place for almost
30 years. The Corps is reissuing for a period of 5 years and all NWPs
will be reviewed for reissuance prior to their expiration in the year
2001.
Permit Limitations & Definitions: Several commenters suggested the
modifying the limits of the permit and recommended the following: Limit
fills to \1/4\ and \1/10\ of an acre; exclude use in open water areas;
require mitigation for fills over 50 cubic yards; and, disallow use for
fills in mitigation sites. One commenter recommended the permit be
limited to a specific number of \1/2\ acre authorizations allowed per
wetland. Another suggested establishing limits based on ecosystem
rather than ownership. Two commenters recommended that we prohibit
discharges within 100 feet of streams supporting anadromous fish. One
commenter recommended excluding certain regional waters. One commenter
stated that it was a major oversight to allow this NWP to apply to non-
tidal wetlands adjacent to the ocean. One commenter commented that the
permit should be limited to authorization of primary residences only
and another recommended that mitigation be required as a condition of
the permit.
After careful consideration of all the comments, and based on our
experience with NWP 29 over the past year, the Corps has determined
that the acreage limitation should be retained at \1/2\ acre, a limit
should be imposed to require a ``no fill'' buffer between the fill and
any free flowing stream, river, or other flowing waterbody and/or the
normal spring high tide in tidal areas. Data collected on the use of
NWP 29 over the last year has shown that the average impact per NWP 29
across the nation was approximately 0.19 acres. The data also shows
that during none of the quarters did the average impact acreage go
above 0.25 acres. Additionally, it should be noted that the average
acreage requested was only 0.31. For all of Fiscal year 1996, the Corps
authorized 333 projects for a total of 62 acres of fill nationwide. The
total acreage of fill requested by applicants was 101 acres, thus the
Corps review reduced the requested impacts by 40%. Furthermore,
mitigation may be required for higher value wetlands. Of course, as
with all NWPs, the Corps
[[Page 65898]]
districts will ensure that the fill is the minimum needed on a case-by-
case basis. If additional levels of protection are necessary, Corps
District and Division Engineers will add regional conditions as they
did in several districts in 1995. As with other NWPs, such regional
conditions could revoke NWP 29 in certain high value aquatic areas or
add region specific limitations on the use of NWP 29.
One commenter requested a clearer definition of ``non-tidal'' to
ensure adequate protection of marine and estuarine habitats. The
commenter pointed out that the definition differs between the Rivers
and Harbors Act (mean high water) and the Clean Water Act (Spring high
tides or other high tides with periodic frequency), and recommended the
adoption of the CWA definition.
The definition of tidal waters can be found in 33 CFR 328.3(f) and
is defined as those waters that rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun (the high tide line). 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 hydrologic, wind, or other
effects. The high tide line includes the normal spring high tides. The
limits of Corps jurisdiction in non-tidal waters of the United States
can be found in 33 CFR 328.4(c). This regulation does not mean that
wetlands adjacent to tidal wetlands are also tidal wetlands, but rather
that in coastal areas, Corps jurisdiction extends to the limits of
these ``non-tidal wetlands'' that are adjacent to tidal wetlands.
Consequently, this NWP is applicable to wetlands that are adjacent to
wetlands subject to spring high tides. However, divisions can, as some
did in 1995, provide regional conditions to exclude high value wetlands
adjacent to tidal waters.
Several commenters requested either elimination or a more detailed
definition of the term ``attendant features''. They suggested that
swimming pools, tennis courts, barns, small businesses and septic
fields should not be allowed. The purpose of this permit is to reduce
the regulatory burden associated with the construction of single-family
homes while maintaining environmental protection. When building single-
family homes we recognize that, besides the foundation of the house
itself, there are activities associated with a house that are
considered necessary, customary, or normal to home sites. We believe
these ``attendant features'' should normally be authorized with the
house. We would not accomplish the purpose of this permit if we were to
authorize the house only and process an IP for the attendant features.
Attendant features, for the purpose of this permit, include features
that are reasonable, necessary appurtenances constructed in conjunction
with single-family housing activities. Examples include a garage,
driveway, storage shed, septic field, and yard. Examples of
inappropriate attendant features not covered by this permit include a
barn, which may be covered by NWP 40, or a small business. Such
features would not be directly related to a single-family home. While
we believe that a yard is an appropriate attendant feature of a single-
family home, we have not identified a size that will work for all NWP
29s. Therefore, we will work with the applicant to ensure that
acceptable, but not excessive, yards are authorized. This NWP only
authorizes activities from the perspective of the Corps regulatory
authorities, other Federal, state, and local permits, approval, or
authorizations may also be required. The permittee would be responsible
for obtaining all necessary authorizations, including building permits,
prior to placing a septic system, yard, or any other fills in wetlands.
Additionally, water quality is a concern addressed by applicable state
agencies as well as the Corps. It is the permittee's responsibility to
obtain any necessary water quality approvals or authorizations prior to
the discharge of fill. Furthermore, while properly designed,
constructed, and operated septic systems can be placed on fill in many
wetlands, the septic system must be approved by the appropriate state
or local agency. The Corps has determined the extent of the attendant
features to be applied on a nationwide basis. If an individual district
concludes that a particular feature should not be authorized under this
permit, then the Division Engineer must regionally condition the permit
to exclude the feature. Furthermore, additional restrictions may be
placed by states in 401 water quality certification or CZM consistency
determination. On a case-by-case basis, where a particular feature is
not appropriate at a specific site, the District Engineer may condition
the NWP or require an individual permit.
As a Corps district evaluates each request under NWP 29, they will
consider the proposed home and attendant features in the context of the
functions and values of the waters of the United States as well as
local zoning and regulatory set-backs and requirements. If uplands are
available on the applicant's property to reasonably accommodate the
home and attendant features, after considering property line set-backs
and other requirements, the Corps will not authorize the project under
NWP 29 and instruct the applicant to apply for an IP. If fill for the
home and for attendant features is needed, the Corps will determine the
amount of fill based on the aquatic functions and values to be
impacted. Specifically, attendant features such as a yard, tennis
court, or swimming pool may be limited, or not authorized, if the
project is located in high value wetlands. The Corps will generally
require septic systems to be located as far as possible from open
waters, and will otherwise attempt to ensure that septic systems will
not adversely affect the quality of surface waters.
Effects & Cumulative Effects: One commenter expressed concerns for
adverse effects on floodplains resulting from issuance of the permit.
Two commenters expressed concern for water quality impacts due to the
typical location of NWP 29 activities within watersheds. Several
commenters expressed the belief that this permit encourages housing
development in wetlands, and several expressed general concerns for the
cumulative impacts.
Because the activities associated with the use of this permit could
be located within the floodplain or a waterbody, there is potential for
increased flooding and reduced flow. The notification process allows
the district to evaluate the proposed impacts, including potential
flooding impacts, compare them to existing impacts within the wetland
system or watershed, and determine if the project has more than minimal
individual or cumulative adverse effects. The district will use its
discretionary authority to place conditions on a proposed activity to
avoid or minimize these potential impacts. If the activity is
determined to have more than minimal adverse effects, the district will
require mitigation or an individual permit. The district and division
offices may identify specific geographic areas, such as a subdivision,
or a particular aquatic system, where there may be concerns regarding
cumulative impacts to a watershed. If such impacts are identified, the
division will revoke this NWP in specific geographic areas or develop
regional conditions that apply to that specific area. Many districts
and divisions have already revoked NWPs, including NWP 29, or imposed
such regional conditions in many geographic areas or wetland or water
types.
[[Page 65899]]
Coordination: One commenter asked that we require Endangered
Species Act and Historic Preservation Act coordination prior to
authorization under this permit. One commenter requested that we
require compliance with Federal, state, and local regulations. The
Corps believes that the provisions of Nationwide Permit Conditions 11
and 12, which address endangered species and historic properties, as
well as the procedures in 33 CFR part 330, are adequate for guarding
against unacceptable impacts in these areas of concern. Moreover, by
issuing a verification letter the Corps has made a determination of
``no affect'' on endangered species and ``no adverse affect'' on
historic properties. The issuance of a Federal permit does not obviate
the need for applicants to comply with all other Federal, state and
local laws and regulations, and it is incumbent upon the applicant to
comply with all applicable requirements.
Subdivisions: One commenter suggested applying the current \1/2\
acre limitation for subdivisions created on or after November 22, 1991,
to all subdivisions regardless of the date they were created. One
commenter requested a more elaborate discussion on what constitutes a
subdivision. Another recommended the subdivision date be 1977 when the
scope of the Corps regulatory jurisdiction was expanded and 404(e) was
first enacted, or 1984 when many property owners were made aware of the
need to obtain permits. Another commenter suggested limiting the permit
to those persons who purchased their properties prior to enactment of
Section 404 of the Clean Water Act. One commenter asked what
constitutes ``creation'' of a subdivision, is it the date the
subdivision was first drawn on a piece of paper or the date it was
approved by a planning jurisdiction? One commenter requested the
addition of a subdivision rule (interpreted to mean a more detailed
discussion of subdivisions within the permit).
November 22, 1991, is the date on which the current NWP program
regulations, including issuance of, reissuance of and modifications to
the previous NWPs were published in the Federal Register. It was in
these regulations that the terms surrounding subdivisions for the
purpose of NWP 26 were outlined and awareness of the subdivision clause
was heightened. With few exceptions, we believe this date would be fair
to all parties. We do not believe that the November 22, 1991, date
penalizes any one group of individuals and that is the date which has
been in use since issuance of the nationwide permit on September 25,
1995. The subdivision date refers to when a parcel was subdivided into
smaller parcels, not when the subdivided smaller parcels are sold.
Therefore, individual parcel owners are not penalized based on when
they purchased property. The term ``creation'' refers to the date the
tract of land, after being subdivided, is officially approved by the
appropriate state or local governing agency. The conceptual subdivision
of land is not acceptable.
One commenter recommended that the permit be conditioned to not
allow for multiple ownerships by family members to circumvent the
subdivision clause. We believe that the conditions limiting the use of
this permit to single-family residences, personal residence, once per
parcel, and not more than \1/2\ acre total per subdivision created
after November 22, 1991, are adequate conditions to limit use of the
permit and ensure compliance with the ``minimal effects'' criteria for
general permits. Multiple ownership by the same family within a
subdivision created after November 22, 1991, would not allow for any
greater fill than single ownership of the subdivision, in that the
total aggregate fill could not exceed \1/2\ acre. NWP 29 is reissued
with the modifications discussed above.
30. Moist Soil Management for Wildlife: This NWP was proposed by
the Corps as a new nationwide permit (proposed new nationwide permit A)
to authorize activities necessary to manage, construct, and/or maintain
habitat and feeding areas for wildlife on Federally-owned or managed
and state-owned or managed property.
Many commenters supported the NWP as proposed. Several of the
commenters felt that the NWP should include activities on privately-
owned lands managed by Federal agencies. These are agencies with
expertise in the subject area and are responsible for managing the
lands in concert with the objectives of the Federal wetlands programs
such as NRCS and FWS or state plans. A few commenters stated that
wetland areas under permanent easement and deed restrictions should be
covered by the NWP. One commenter stated that privately-owned lands
should not be included. This permit was proposed by the Corps
specifically for application to Federal and state resource agency
activities. It is intended that the permit apply to managed lands as
well as lands owned by these Federal and state agencies. The techniques
listed in the permit are not ``all inclusive,'' but meant to be
representative of the types of activities included. The list has not
been expanded for the sake of brevity.
A few commenters asserted that discing or plowing are activities
that are not, and should not be, subject to regulation. Mowing and bush
hogging are two examples of vegetation removal, which if done so as not
to substantially disturb the root system, are not regulated under
section 404. (See 33 CFR 323.2(d)(2)(I)). While discing and plowing
activities are exempt from regulation pursuant to CWA section 404(f)(1)
when conducted in conjunction with ongoing farming activities, such
activities are not exempt for the purposes of wildlife management.
Thus, this permit specifically authorizes these activities.
A few commenters were concerned about implementing adequate review
measures and suggested that the Corps include a Federal and state
wildlife agency PCN to ensure that any conversion of wetland types
would be minimal or an IP would be required. Because these agencies
have extensive expertise in wetland management and are responsible for
managing the lands in concert with the objectives of Federal and state
wetlands programs, we believe the PCN processes would result in
unnecessary and duplicative governmental review. Furthermore, we have
added an additional restriction to the NWP to not authorize converting
wetlands to open waterbodies. Proposed Nationwide Permit A is issued as
proposed and discussed above as NWP 30.
31. Maintenance of Existing Flood Control Projects. General: This
NWP was proposed by the Corps as a new nationwide permit (proposed new
nationwide permit D) to authorize the excavation and removal of
accumulated sediment and associated vegetation for maintenance of
existing flood control facilities. The majority of those commenting on
this proposed NWP were in support of its issuance. Most viewed this
permit as one that would greatly improve the local sponsor's ability to
perform critical flood control maintenance activities. Several
commenters felt that, especially for some projects, using this NWP
would violate 404(e) because maintenance work would have more than
minimal adverse effects on fish and wildlife resources. Their concern
was for use of the permit for older flood control projects now
supporting fish and wildlife habitat. Many of these commenters felt
that maintenance dredging in some areas could result in perpetuating
past mistakes and, for older projects, it may be impossible to
determine the original dimensions.
[[Page 65900]]
Many commenters felt that flood control channels that develop and
support wildlife need public review and agency comment and a PCN
requirement will not substitute for public review as required by the
Clean Water Act.
We believe that with the limitations and conditions included within
the final permit, the NWP will comply with the ``minimal effects''
criteria for general permits. Safeguards for the protection of valuable
habitat have been included within the permit, particularly in the
procedure for the District Engineer (DE) to determine the maintenance
baseline and the provisions allowing for the DE to require mitigation.
Recommendation for Expanding the Permit's Scope: Numerous comments
recommended expanding the scope of this NWP. Some of the recommended
inclusions were state and city flood control maintenance activities;
maintenance of stormwater management facilities; water conservation
facilities; retention/detention basins and channels constructed by
municipalities, watershed management organizations, and watershed
districts (in compliance with surface water management practices
required by the state); any Federal, state, or locally funded flood
control project; irrigation facilities; any facility where an NEPA
document has been prepared; drainage system inlets and outlets; manmade
channels or structural projects developed under authorization of
Federal or state governments; and any facility that was constructed
through excavation prior to the Excavation Rule. One commenter stated
that any ``improved channel'' or detention facility constructed before
July 1975 or after July 1975 if it met exemption from 404 regulations
or fell under 404 regulations and was authorized by the Corps should
qualify for this NWP.
Many of the facilities included in the above recommendations would
be included in the final wording, which authorizes maintenance of
existing flood control facilities previously authorized by the Corps
regulatory program or constructed by the Corps and transferred to a
local sponsor for operation and maintenance. However, this NWP was
proposed for maintenance of ``flood control'' facilities. In order to
expand the scope of this NWP to include other types of facilities such
as irrigation and drainage projects, we would need to propose such a
change for public comment and opportunities for a public hearing.
Therefore, we are not expanding the scope of this NWP to include other
types of facilities. However, we will seek public comment regarding
other types of activities that should be authorized by NWP and, if
appropriate, we would propose an NWP for such facilities.
Two commenters suggested that this NWP include construction of
cofferdams and access roads necessary to conduct maintenance of the
flood control facilities rather than require separate notification
under NWP 33. We believe this permit should be limited to maintenance
activities of existing flood control facilities and that temporary
construction activities would more appropriately be authorized by IPs
or NWP 33, which has a specific notification requirement for a
restoration plan.
Recommendation for Limiting the Permit's Scope: A few commenters
recommended restricting this NWP to only on-going flood control
projects. One of these commenters specifically suggested that the NWP
should be worded to state that for a project to qualify for this NWP,
it must have been maintained within the past 3 years unless otherwise
stated in the original permit. One commenter suggested using the
safeguards contained in NWP 3--that this NWP applies only to the
repair, rehabilitation, or replacement of currently serviceable water
management projects authorized under Federal, state, or local
governments, provided the environmental effects resulting from such
repair, rehabilitation, or replacement are minimal. One commenter
suggested a 5 acre threshold for this NWP, and another felt that any
threshold would be arbitrary and instead recommended that this
determination be made based on the quality of the existing aquatic
resource and how the site will be impacted by the proposed excavation
activity.
We included provisions within the NWP to limit maintenance
activities to an established maintenance baseline, to be determined by
the DE. The process prescribed for determining the baseline includes
consideration of the facility's maintenance history, and other factors
designed to identify the purpose and need for the proposed maintenance,
and that the proposed maintenance activity is not excessive to achieve
that need. We believe that specific threshold limits would be
inappropriate and unnecessarily restrict projects that should qualify
for this NWP.
Pre-Construction Notification: Many commenters were opposed to
having any preconstruction notification requirements. They felt that it
would be duplicating the efforts of other entities for the Corps to
review flood control projects that adhere to the original schedule for
maintaining the facility. One commenter added that requiring a PCN
would be contrary to the Corps goals to avoid unnecessary regulatory
controls and reduce unnecessary paperwork and delays for permittees.
Several commenters were concerned that additional coordination could
pose a threat to public health and safety if flood control districts
were impeded in any way to maintaining a facility. Two commenters
specifically requested that there be no PCN requirement for the
facilities designed and constructed to comply with local or state water
quantity and/or quality control requirements when the depth and area of
dredging is in accordance with the originally approved design plans.
Another commenter suggested that no PCN be required for emergency
maintenance performed as a result of a local, state or Federally
declared disaster.
Numerous commenters provided recommendations for thresholds of when
to require a PCN, ranging from 100 to 100,000 cubic yards or at a 1
acre threshold. One commenter suggested that a 25 cubic yards limit be
used in streams supporting anadromous fish. Another threshold to
require a PCN was whenever previous maintenance activities occurred
more than 5 years earlier. One commenter suggested using 50 cubic yards
as the PCN threshold stating that under 50 cubic yards the applicant
could use NWP 18/19. Another commenter suggested 10 acres or 1 acre/
mile of channel/year. Another commenter recommended that the impacted
area threshold be 10 acres minimum for each unlined basin and 25 acres
minimum for each soft bottom channel reach before a PCN was required.
One commenter interpreted the preamble to imply that only unlined
basins and channels would require a PCN and that the regulation itself
should reiterate that requirement.
Following the DE's determination of the maintenance baseline, which
requires a notice to the Corps, a PCN is required for maintenance
activities. We believe that there is a need for notification for
maintenance activities to ensure compliance with the permit conditions
and to monitor maintenance of the flood control facility. The PCN is
required prior to each maintenance activity or a maintenance plan can
be submitted just not to exceed 5 years. The Corps prefers the
submittal of a 5 year maintenance plan. This is a new NWP. The Corps
will monitor this NWP. If appropriate, the Corps would consider
proposing to reduce or eliminate the PCN requirement. Furthermore, if
the project is effectively abandoned due to lack of proper maintenance,
a new
[[Page 65901]]
determination of a maintenance baseline would be required before this
NWP could be used for subsequent maintenance.
Recommendations for Permit Conditions: Several commenters
recommended that this NWP be conditioned to preclude maintenance work
that would result in wetland and/or riparian habitat impacts. One
commenter suggested the following wording be added to both the preamble
and the permit itself: ``In circumstances where the DE determines that
the channel proposed for maintenance provides other significant social
or ecological functions and values that may be jeopardized, the Corps
will exercise its discretionary authority to require an individual
permit.'' One commenter suggested that the following conditions be
added to this NWP: (1) All excavation must have been previously
addressed in the project's original EIS; (2) the excavation is still
necessary to obtain the project's original goals; and (3) the benefit
of attaining those project goals still justify the cost of the
environmental impacts that result from the removal at this time (as
opposed to the time when the original EIS was completed).
We believe the objectives of these recommendations are essentially
achieved through the application of the final wording of the permit,
the requirement to establish a maintenance baseline, the nationwide
permit general and section 404 only conditions, and the opportunity for
the DE to exercise discretionary authority and/or require mitigation
for resource impacts.
One commenter requested that the Corps delete the requirement for
an applicant to specify the disposal site. The reason for this is that,
in many cases, the disposal site is not known until after the bids for
the project are submitted, which may occur after the NWP has been
verified. This commenter suggested that the requirement be replaced by
a commitment from the applicant to dispose of material at an upland
site. Other commenters recommended that the NWP be expanded to allow
the disposal material in jurisdictional areas where the applicant can
show a beneficial use for its disposal. Another commenter recommended
that the location of the disposal site be identified only if it is
within the Corps jurisdiction. One commenter suggested that the NWP
specifically state that this NWP does not authorize side casting
excavated material into waters of the United States, agitation
dredging, or where dredged material testing is required.
The NWP does not require that the disposal site be specified in
advance, however, it does require that dredged material to be placed in
upland areas or currently authorized disposal areas in waters of the
United States. Use of the disposal site must also be in compliance with
all Federal, state and local requirements, as must every aspect of the
project, or the NWP is not valid.
One commenter added that should such work be allowed, there should
be a requirement to mitigate for unavoidable impacts to fish and
wildlife resources. Another commenter was concerned that mitigation
would be required for projects, especially for those constructed prior
to the enactment of the Clean Water Act in 1972, causing an undue
financial burden on applicants.
The final NWP includes provisions for the DE to determine the need
for mitigation when determining the maintenance baseline. In
determining the need for mitigation, the District Engineer will
consider the following factors: any original mitigation required, the
current environmental setting and any impacts of the maintenance
project that were not mitigated in the original construction. The
District Engineer will not delay needed maintenance for completion of
any required mitigation, provided the DE and the applicant establish a
schedule for the identification, approval, development, construction
and completion of such required mitigation.
One commenter requested that they not be required to submit a new
wetland delineation every five years because of the significant cost
this would cause for local agencies. The Corps general policy is that
wetland delineations are verified for no more than 5 years. In those
cases where wetland delineations are required, the delineation must
have been verified within the 5 year period. Once a delineation has
been completed and verified, subsequent updates and verifications
should, in most cases, be substantially less costly and time consuming.
A wetland delineation would be required to establish the maintenance
baseline. However, for normal maintenance, a wetland delineation would
not generally be required, but may be on a case-by-case basis.
Time Limits and Maintenance Baseline: Many commenters requested
that no time limits be set for maintenance intervals, only
demonstration of need. One commenter pointed out that in some cases it
may take a flood event to know that a facility needs maintenance, and
little would be gained by disqualifying projects on the basis of long
maintenance intervals. Another commenter added that it would be unfair
to penalize older facilities that have received little maintenance over
the years. A few commenters suggested that the baseline should be the
design conditions with no set time limits for maintenance cycles, since
such a time limit would be arbitrary and would not relate to the
ecological value of a local project site. One commenter recommended
that the baseline condition for measurement of impacts should be the
``as-built'' or newly constructed condition.
We concur that no time limits should be set for maintenance
intervals and that it would be unfair to penalize older facilities. We
have included design conditions and the ``as-built'' conditions as
considerations in establishing the maintenance baseline. Details on the
procedure and considerations for establishing the maintenance baseline
are included within the NWP description presented later in this
document under the ``Nationwide Permits and Conditions'' section.
However, maintenance work to maintain the approved flood control
capacity must be accomplished. If the project or the design capacity is
effectively abandoned or reduced due to lack of proper maintenance, a
new determination of a maintenance baseline would be required.
Regionalization: Two commenters suggested that maintenance of
existing flood control projects should be exempted from regulation. A
few commenters suggested replacing this NWP with each District
developing river specific regional permits. One commenter suggested
that this NWP would be more appropriate as a programmatic general
permit because it would result in the same streamlining of the process
while allowing for a public agency to administer a jurisdiction-wide
channel maintenance program under pre-determined criteria for that
state.
The activities authorized under this permit are not exempted under
the Clean Water Act and are therefore regulated under section 404 of
the Clean Water Act. We believe that it is appropriate to authorize the
maintenance activities specified in the final NWP; however, districts
can and are encouraged to identify appropriate regional conditions to
ensure minimal impacts. We also agree that programmatic general permits
could be a viable alternative in those cases where another program
meets the objectives and requirements of the Corps regulatory program.
Endangered Species Act: A few commenters raised a concern over
[[Page 65902]]
possible impacts to Federally threatened and endangered species and
recommended that sufficient evaluation with the federal agencies be
completed before allowing a project to qualify for this NWP.
We believe the nationwide general permit condition addressing the
avoidance of impacts to endangered species and compliance with the
Endangered Species act is sufficient for protecting against such
impacts. Furthermore, by verifying an activity is authorized under NWP
31, the Corps district will have made a ``no affect'' determination
based on review of available data. If a project may affect an
individual species, the Corps will initiate consultation under
Sec. 330.4(f). Furthermore, endangered species, if not already
addressed in a Corps permit or Corps constructed project, would be
addressed as a part of the determination of the maintenance baseline.
Definitions and Clarifications: A few commenters suggested that the
title of this NWP be changed to ``Maintenance of Existing Flood Control
Facilities'' rather than ``Projects'' to avoid any implications that it
does not apply to existing or locally funded ``facilities.'' One
commenter suggested that the word ``previously'' be deleted from the
text because ``previously'' raises the question of whether or not the
NWP applies to flood control facilities authorized and constructed
subsequent to the effective date of the NWP, or only to those existing
``previously''. One commenter suggested that ``previously authorized''
be changed to ``initially constructed'' since the depths and
configurations often have changed from the basic authorization.
We have changed the word ``projects'' to ``facilities'' as
suggested. The term ``previously'' has been retained. We intend to
include maintenance activities associated with flood control facilities
in future Corps standard individual permits. We have modified the NWP
to require the DE to consider the difference between the project
authorized and actually constructed in his determination of the
maintenance baseline.
One commenter felt that the term ``flood control'' project was too
vague and needed to be clarified as to what could be considered a flood
control project. We believe the term is sufficiently defined within the
language of the final NWP.
Several commenters requested that clarifying language be added to
the preamble stating that areas that were constructed in uplands are
outside the purview of the Corps regulatory process provided they are
maintained. Corps regulations for implementation of the regulatory
program state that the Corps does not normally regulate artificial
water bodies constructed in dry land, but reserves the right on a case-
by-case basis to determine that a particular waterbody within this
category is within the purview of our regulatory authorities. More
detail on these provisions can be found at 33 CFR 328.3 and in the
preamble to those regulations in 51 FR 41217. We will continue to
monitor this need and provide additional clarification as necessary.
A few commenters requested that ``natural'' channels be defined to
avoid misinterpretation. One commenter further suggested that
``natural'' be defined as a watercourse that has not been modified in
order to increase its hydraulic capacity or simply a previously
unaltered water course. Another commenter suggested that the wording of
this NWP be revised to state that ``this NWP authorizes the removal of
sediment and associated vegetation from flood control facilities,
including natural channels. We believe the text of the final NWP, which
reads: ``Only constructed channels within stretches of natural rivers
that have been previously authorized as part of a flood control
facility could be authorized for maintenance under this NWP,''
sufficiently clarifies those areas which can be maintained under this
NWP.
One commenter felt the term ``maintenance'' is vague and that
specific types of maintenance activities allowed should be fully
described and limited to that which does not impact the environment and
water quality. We believe the requirement for establishing a
maintenance baseline satisfies this concern. It will establish the
limits of the maintenance on a case-by-case basis.
32. Completed Enforcement Actions: The Corps proposed several
changes to the NWP. We proposed expanding the scope beyond judicial
enforcement actions to include agreements resulting from Corps
negotiated settlements. We also proposed clarification that compliance
with the underlying judicial or administrative decision or agreement is
a condition of the NWP itself, and we proposed that EPA administrative
settlement agreements could also be authorized by this permit.
Several commenters favored the addition of Corps non-judicial
settlements to the scope of activities authorized by this permit. One
commenter specifically stated that it would eliminate unproductive
duplication of the Corps evaluation efforts. Another added that it
would both streamline the process and expedite restoration work. A few
commenters added that little is served by going through an individual
permit process once the Corps is satisfied with restoration and
mitigation being offered or required to resolve a violation. One
commenter saw the benefit of enhanced negotiation with the Corps
without judicial actions. A few commenters supported extending NWP 32
coverage to activities authorized under EPA administrative settlements
as well as Corps settlements. Conversely, numerous commenters
recommended that this NWP not be expanded or reissued. Many commenters
were only opposed to the expansion of the NWP. Some believed that by
including Corps-negotiated settlement agreements permit approvals would
be made behind closed doors without the opportunity for public or
resource agency comment and therefore would preclude the due process of
public participation. One commenter was concerned that it would
eliminate the opportunity for section 401 water quality certification
for after-the-fact permit (ATF) activities that may have violated state
water quality standards. The Corps will not forego its normal and
required enforcement procedures at 33 CFR part 326 and 33 CFR
330.6(d)(2) and 330.6(e) prior to reaching a settlement agreement. The
Corps has concluded that including agreements resulting from Corps
negotiated settlements and EPA administrative settlement agreements
would result in substantial work load reductions and eliminate
duplicative efforts without any loss in resource protection. Corps
settlement agreements receive thorough evaluation and are normally
coordinated with the resource agencies. In those cases where the state
does not certify this permit, the applicant will be required to obtain
individual section 401 certification prior to the Corps final approval
of the resolution.
Several commenters suggested ways to further expand this NWP and
one commenter opposed any threshold restriction, provided the net
environmental benefit was positive. Another commenter believed the NWP
should be expanded to permit future impacts beyond those only for the
purpose of mitigation, restoration, or environmental benefit. Some
believed the thresholds of five acres of non-tidal or one acre of tidal
wetlands were arbitrary and too high. Others believed that authorizing
enforcement actions by NWP would violate the ``similar in nature'' and
``minimal impact'' standard of 404(e) of the Clean Water Act. One
commenter suggested that unless the Corps settlement involved complete
[[Page 65903]]
restoration, it would be impossible to determine that the activities to
be authorized under this NWP would be minimal impacts or to assess the
cumulative impacts. The Corps has concluded that the existing
thresholds and scope of the permit cannot be expanded because we could
not ensure compliance with the ``minimal effects'' threshold for
general permits. We have also concluded that the five acre and one acre
thresholds are adequate for meeting the ``minimal effects'' criteria.
The Corps believes that complete restoration will be achieved, except
where full restoration is either not practicable or would result in
unnecessary adverse environmental effects. Therefore, we do not believe
greater than ``minimal adverse effects'' would result from this permit.
One commenter believed that the automatic revocation of the NWP, in
case the permittee failed to comply with the settlement agreement or
judicial decree, was too harsh and that they should be allowed to
follow the normal revocation process. We do not believe this condition
is too harsh given that the permittee, who violated the CWA and reached
a settlement agreement with the government, once again violated the
CWA. We believe that those individuals should be, once again, subject
to enforcement/compliance regulations.
One commenter believed NWP 32 encourages citizens to break the law
and noted there is no restoration for the impacts created by the
violation. A number of commenters opposed this NWP because there were
no limits as to potential impacts. One commenter stated this NWP would
eliminate the 404(b)(1) needs and alternative analysis for projects up
to five-acres. As stated in the proposed NWP, thresholds were
established for the maximum size of the impact area and whenever
possible, restoration of these areas will be required to minimize the
impacts as appropriate and practicable. This NWP is mostly intended for
those cases where the enforcement resolution has been reached and an
ATF permit process is required. Although a 404(b)(1) off-site
alternatives analysis is not required for an NWP authorization, on-site
avoidance is required. Further, off-site alternatives may be
considered, where appropriate, during the enforcement resolution prior
to processing the ATF or this NWP authorization. NWP 32 is reissued
with the changes discussed above.
33. Temporary Construction, Access and Dewatering: The Corps
proposed adding the provision from recent guidance stating that this
NWP could be used for construction activities not subject to either the
Corps or U.S. Coast Guard regulations. We also proposed allowing the
use of on-site dredged material for temporary fills, and deleting the
last sentence of the permit, which stated that the permit did not
authorize activities associated with mining activities or construction
of marina basins which had not been authorized by the Corps.
The several comments received on this permit were nearly equally
split between support for and position to reissue the permit. Many
comments expressed concern about adverse impacts from structures and
fill remaining in place without monitoring or enforcement. The Corps
designed this permit to provide a shortened administrative process for
construction-required activities that were not anticipated when the
main project was authorized by another Corps permit (usually an
individual permit) or by a Coast Guard permit. We have added
authorization of activities where neither a Corps nor a Coast Guard
permit is required but a temporary impact to waters of the United
States occurs in association with work in the immediate area for an
otherwise upland project. Structures or fills that remain in place
cannot be permitted by this NWP. The NWP now clarifies that all
activities authorized by this NWP must be removed or authorized by
another permit.
One comment recommended that all fills and restoration be completed
within 90 days of project completion. We have clarified the
requirements of PCN (General Condition 13) such that the restoration
plan will include a timetable for removal of the temporary structures
and fills.
One comment concerned the interpretation of ``or for other
construction activities not subject to the Corps or U.S. Coast Guard
regulations'' as including maintenance which the commenter states is
not regulated under 33 CFR 324.4(a)(2). The Corps NWP 33 is clear in
its intent to authorize only activities that support some primary
activity that has been permitted or does not need a permit. The
exemption referenced authorizes maintenance and reconstruction of
facilities, which means that it exempts only that part of the facility
that was constructed in jurisdictional waters. NWP 33 authorizes access
or construction techniques to perform the exempt reconstruction if that
access or technique requires structures or fill outside the footprint
of the facility.
One commenter recommended a dredging limitation the same as that
required for NWP 19. The Corps believes that this is too restrictive
for a temporary impact and would excessively lessen the use of this
NWP.
A few commenters expressed concern for special aquatic sites with
suggestions that: the permit require the impacted wetland be restored
in 2 years, the impacted site be self-mitigating, the Corps ensure that
wetland impacts can be reversed, and a maximum impact of \1/2\ acre. We
believe that all of these restrictions are not necessary. Through the
PCN process the Corps will ensure that impacts are minimized to the
maximum extent practicable.
Another comment expressed concern regarding downstream flooding.
The NWP states that near normal downstream flows must be maintained and
flooding minimized. Section 404-only Condition 6 also prohibits
altering expected high flows.
One commenter suggested limiting restoration to special aquatic
sites. The Corps has not adopted this recommendation because temporary
structural fills in other waters of the United States, which are not
special aquatic sites, also must be restored under this NWP. Another
commenter suggested that there no be a notification for cofferdams and
access ramps under some unspecified size. Another asked for the PCN to
start at 100 cubic yards or 0.1 of an acre impact. We believe this is
inappropriate as another permit has been issued for the main project
and cumulative impacts need to be considered, including potential
alteration of the purpose of the project. Also, even small cofferdams
may have more than minimal impacts depending upon the resources of the
waterbody. Construction activities for projects not requiring a permit
may be authorized by non-notification NWPs if they apply.
Two other commenters recommended that signs be erected to warn
boaters of construction activities and that this NWP not be used for
river boat casino construction. These are very localized issues that
can be dealt with through regional conditioning by the districts and
divisions. If the Corps is aware of high recreation use, placing
warning signs may be an appropriate condition for some specific NWP
authorizations. NWP 33 is reissued with the proposed changes.
34. Cranberry Production Activities: The Corps proposed no changes
to this NWP. Several commenters supported reissuance, but the great
majority of those commenting on the permit requested revoking this NWP,
based principally on perceived environmental impacts and because,
according to the commenters, most cranberry producing states have
denied water quality
[[Page 65904]]
certification. The Corps realizes that decreases of habitat value and
water quality functions may occur in the conversion; however, the NWP
requires mitigation to ensure no net loss of wetlands by acreage.
Additionally, any district may regionally condition the NWP to restrict
its use in particularly valuable wetlands. Some states, as noted by
several commenters, have denied 401 water quality certification to
ensure that the state can regulate impacts of local concern. Washington
State, for example, initially denied certification for all actions
under this NWP. Three years ago the state issued certification except
for forested wetlands and areas that had never been in cranberry
production historically. Denial by many states does not imply that a
NWP is causing more than minimal adverse effects, but simply that the
state may have concerns regarding water quality.
A few commenters requested removing the no net loss requirement for
purposes of water quality and more efficient harvesting through the
construction of dikes. The Corps believes that the mitigation required
is necessary to ensure that no more than minimal adverse effects will
occur. The Corps believes that extensive construction of dikes would
likely result in more than minimal adverse effects, and thus requires
evaluation through the individual permit process.
One commenter stated that upland alternatives should be selected.
Although it has been demonstrated that cranberries can be cultivated in
former uplands (cranberry bogs are wetlands because of the hydrology
that must be maintained), this is technically difficult and typically
would not be practicable. This is particularly true recognizing that
many operators are small family businesses.
One commenting organization stated that Section 401 did not apply
to cranberry bog construction because it is a non-point pollution
source. The activities regulated by the Corps under NWP 34 involve
discharges of dredged or fill material associated with expansion,
enhancement or modification of the cranberry bogs. These discharges of
dredged or fill material are the same as any other fill pad or land
leveling operation. These types of activities are point source
discharges and a 401 water quality certification is required.
Two commenters recommended adding taro production to this NWP. Taro
is grown in Hawaii and other South Pacific islands. We believe this is
a region-specific problem and the Corps Honolulu District has the
option of developing a regional general permit, if appropriate.
In order to verify compliance with the terms of this NWP, we have
added the requirement to provide a wetland delineation with the
notification. NWP 34 is reissued with the modifications described
above.
35. Maintenance Dredging of Existing Basins: The Corps proposed no
changes to this NWP. One commenter indicated that clarification is
needed to unambiguously define and limit what is meant by canals,
basins and slips. This is a section 10 NWP and the term canal in this
instance is related to navigation. Therefore, flood control or other
canals that do not normally support navigation are not covered by this
NWP. The term basin is also intended to relate to navigation, such as a
marina. A marina basin is defined as the open water portion of a marina
which is normally bounded on one or more sides by uplands or structures
(i.e., bulkheads, walkways, floating or stationary piers and/or
breakwaters). A slip is the open water area where an individual boat is
moored and is normally bounded on one or more sides by uplands or
structures (e.g., bulkheads, walkways, piers, piling, etc.). We have
modified the permit by replacing the term ``canals'' with the term
``channels''. We have made this change to clarify our intent to allow
maintenance dredging of navigational channels connected to marina
basins.
One commenter suggested that the NWP be broadened to include
maintenance dredging of previously authorized intake and discharge
structures and canals for electric power plants. The commenter added
that this activity is infrequent, typically requiring maintenance
dredging no more often than every five to ten years. We are not adding
such canals because their primary purpose is not to support navigation.
A few commenters expressed concern about the method of disposal
related to waste discharge requirements of boats using the area and 401
water quality certification. The states review water quality concerns
under section 401 of the Clean Water Act and boats must meet discharge
requirements established by the Coast Guard. Moreover, this NWP is not
for construction of marinas, but for maintenance dredging of their
basins and access canals.
One commenter suggested that each Corps district incorporate
seasonal restrictions to limit impacts to anadromous fish. Another
commenter stated that the NWP should not be used to remove natural
gravel deposits or woody debris caused by flooding which may directly
impact stream flow and may affect anadromous fish. We believe that
these issues can be addressed through regional conditions to this NWP
or by activity-specific conditions required by the DE, where necessary.
One commenter expressed concern over the possibility of resuspension of
pollutants accumulated in the sediments of marina basins during such
maintenance activities. The Corps shares these concerns and is
therefore, with this publication, requiring that the Division
Engineers, through the recommendation of the DEs, regionally condition
this NWP to exclude marinas where there is a high potential for
resuspension of pollutants that may adversely affect water quality. NWP
35 is reissued with clarifications discussed above.
36. Boat Ramps: The Corps proposed no changes to this NWP. One
commenter suggested that this NWP be subject to notification
requirements. Another commenter suggested that the NWP would encourage
the construction of individual boat ramps. A few commenters suggested
that mitigation be required for lost special aquatic sites and habitat.
A few commenters requested additional conditions to avoid impacts to
endangered species and fish spawning seasons, to place unpolluted fill
material, and to limit construction periods. A few commenters suggested
modifications to the size limits of this NWP.
The Corps notes that no discharge of fill material would be allowed
into special aquatic sites under this nationwide permit, and the boat
ramps authorized are very small. Given this and the discretionary
authority provisions, we believe that the notification requirement is
not necessary to ensure minimal adverse effects. The NWP, as written,
adequately balances the need for public access to the nation's
waterways while protecting aquatic resources. The NWP specifies that
unsuitable material that causes unacceptable chemical pollution, or is
structurally unstable, is not authorized. We believe the general and
special conditions in regard to endangered species and spawning areas,
respectively, are adequate. Additional measures have been added by the
Corps as regional conditions to address specific issues. NWP 36 is
reissued without change.
37. Emergency Watershed Protection: The Corps proposed no changes
to this NWP. A few commenters wrote to state their general support for
this nationwide permit. Several commenters believe that the NRCS is
misusing and abusing the Emergency Waters Protection Program
[[Page 65905]]
(EWPP) and have suggested imposing a time limit after the occurrence of
the natural disaster/emergency situation for the project to qualify for
this nationwide permit. It is not always possible to immediately
determine the full scope of the damages caused by an individual event.
The Corps considers whether or not the material to be removed was a
result of a flood event through the PCN process. It is the
responsibility of the NRCS, not the Corps, to determine whether the
project complies with their program authority. It is the Corps
responsibility to review the project and concur that the proposal will
result in only minimal impacts and otherwise comply with the terms and
conditions of the NWP. Some commenters suggested that we expand this
nationwide permit to include all emergency response work as a result of
a state or Federal Disaster Declaration and eliminate the notification
requirement. After each natural disaster/emergency situation, those
responsible for performing this work must coordinate with all
appropriate agencies to ensure not only an expeditious response to the
situation, but compliance with all applicable laws. Most work of this
type is authorized under Nationwide Permit 3. For EWPP projects,
notification will continue to be required to ensure that the terms and
conditions are met and only minimal adverse effects will occur. NWP 37
is reissued without change.
38. Cleanup of Hazardous and Toxic Waste: The Corps proposed
clarification as to which projects approved under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) do not
require authorization under sections 10 and 404.
Four commenters noted that CERCLA does not absolve the Corps of its
responsibilities under section 404 or section 10, and/or recommended
inclusion of language that states that section 404(b)(1) compliance is
still necessary unless EPA specifically grants a waiver of ``applicable
or relevant and appropriate requirements'' compliance. One of these
commenters also stated that the final permit should indicate
specifically the substantive requirements that would apply to CERCLA
actions under this nationwide, and whether the Corps intends to
encompass all CERCLA actions. One commenter recommended deleting the
last sentence of the proposed language regarding CERCLA exemptions. EPA
notes that the new language proposed for nationwide permit 38 regarding
CERCLA exemptions refers to section 121(e)(1) of CERCLA for activities
carried out under that section, which only exempts from permit
requirements activities that are conducted ``entirely on site.'' They
recommend modifying the last sentence of the proposed language to read
``Activities undertaken entirely on a CERCLA site by authority of
CERCLA * * *.'' They further note that section 121(e)(1) contains the
restriction that the activity must be ``carried out in compliance with
this section.'' We concur with this clarification and have added the
suggested language.
One commenter stated that nationwide permit 38 illegally delegates
the Corps responsibility to protect wetlands to other Federal and state
agencies that have very different missions. The Corps has not delegated
any regulatory responsibility. The applicant must notify the Corps
according to the notification procedures and coordination with other
pertinent agencies would be conducted. Appropriate measures to mitigate
adverse environmental impacts would be required by the Corps if
necessary to ensure that the adverse effects are minimal. This
commenter also states that the proposed exemption for EPA-approved or
required projects under Superfund that do not require a section 404 or
section 10 permit has no statutory basis in the CWA or CERCLA. We note
that section 121(e)(1) does specifically allow for exemptions from
section 404 and section 10, provided the activities are conducted
entirely on-site.
This commenter also notes that no limits are imposed by this
nationwide permit and that this violates section 404(e). We disagree.
First, there are multiple environmental reviews involved in CERCLA
clean up activities. Second, a large project can have minimal adverse
effects depending on the functions and values of the impacted
waterbody. This commenter further questioned the validity of the
information provided in the Federal Register notice on types of
potential contamination sources, assumptions made regarding quality of
containment technologies, compliance with NEPA by lack of appropriate
specificity, and lack of demonstration of compliance with the 404(b)(1)
Guidelines by leaving all standards of approval to EPA or state or
local regulators. The commenter also encourages the Corps to remain
involved to ensure appropriate implementation of section 404 and
section 10 requirements with the other parties involved. We believe
that the information and project specific evaluation is best left to a
case-by-case review by EPA and the Corps through the PCN process. We
further note that under EPA's CERCLA guidance, provisions of the
section 404(b)(1) Guidelines are considered by EPA.
This commenter recommended nationwide permit 38 not be reissued and
that the Corps should conduct its regulatory responsibilities
concurrently with the other agencies.
We believe that the NWP ensures that wetlands functions and values
are appropriately protected. We also believe that the nationwide permit
as written provides for such concurrent evaluation, coordination, and
oversight.
One commenter recommended not reissuing this nationwide permit or
narrowing it to avoid allowing the dredging of hazardous and/or toxic
materials that have settled in river bottoms. One commenter recommended
that projects that may affect wetlands or other special aquatic sites
include a mitigation plan sufficient to offset impacts. Another
commenter noted that specific mitigation requirements are not mentioned
under this nationwide permit, and notes that mitigation for lost
functions and values should be required if such functions and values
were present on the site prior to cleanup. One commenter stated that
this nationwide permit should be limited to projects impacting less
than one acre of waters of the United States. The notification
procedure allows the relevant agencies to provide comments regarding
concerns regarding potential contamination issues or to identify
mitigation needs. If the Corps determines the project is likely to
result in more than minimal adverse effects, appropriate mitigation
will be required to reduce adverse environmental effects below the
minimal level, or the DE may notify the applicant that the project does
not qualify for authorization under the nationwide permit and instruct
the applicant to seek authorization under an individual permit.
Restricting this nationwide permit to projects of less than one acre of
impacts to jurisdictional waters of the United States would unduly
limit its application. We do not believe that such a restriction is
warranted provided appropriate mitigation is required by the Corps
through the PCN process.
One commenter supported the proposal to clarify the scope of this
nationwide permit by recognizing that activities conducted under the
authority of CERCLA do not require section 404 or section 10 permits
and recommended that language be provided that expressly notes that the
notification procedure is not applicable for activities conducted under
CERCLA authority. The language of the NWP explicitly states that Corps
section 404 and section 10 permits are
[[Page 65906]]
not required. Thus, notification to the Corps is not necessary for
those projects undertaken under authority of CERCLA.
Two commenters recommended that nationwide permit 38 include
activities undertaken under authorities other than CERCLA, such as
Resource Conservation and Recovery Act (RCRA) or state Superfund
programs. As stated in the current and proposed wording, actions
performed, ordered, or sponsored by a government agency with
established legal or regulatory authority are authorized under this
nationwide permit.
One commenter noted that section 401 water quality certification
and the Coastal Zone Management Act (CZMA) consistency could be granted
without additional regional conditions. Such determinations will be
made by each individual state. NWP 38 is reissued with the
clarification discussed above.
39. Reserved.
40. Farm Buildings: The Corps proposed correcting the reference to
the ``minimization'' condition to reflect its current title,
``mitigation'' condition. We also proposed deletion of ``agricultural
related structures necessary for farming activities'' to clarify that
we intend the NWP to only authorize farm buildings such as agricultural
sheds, supply storage, and barns on a farm or ranch. The NWP is not
intended to authorize production nor warehousing type facilities.
One commenter recommended that saltflats or saltponds be added to
the wetland types excluded from this NWP due to their inherent values
for sediment retention and wintering shorebird and waterfowl habitats.
Two commenters recommended deleting the reference to exclusion of
prairie potholes, playa lakes and vernal pools to include all wetlands
converted or in agricultural production prior to December 23, 1985. The
commenter also recommended deletion of the term ``farmed wetlands'' to
remove a potential source of confusion, and recommended adding the
phrase ``and agricultural related facilities necessary for farming
activities'' at the end of the first sentence.
We believe these suggestions would serve to expand this nationwide
permit to allow any and all ``agricultural related facilities.''
Restricting this nationwide permit to farm buildings is the intent. We
do not believe it is necessary to include any and all possible
facilities to be found on farms across the United States. Restrictions
on farmed wetlands are appropriate because they are still
jurisdictional waters of the United States. The 404(f) exemptions for
normal farming activities involve working the land and farm machinery
access, not construction of buildings. Prior-converted croplands are
not jurisdictional unless wetland characteristics develop upon
abandonment of the land. Exclusion of prairie potholes, playa lakes and
vernal pools from the scope of the permit is appropriate because of the
high ecological values typically associated with these waters. While we
recognize the high resource values inherent in many saltflats and salt
ponds, these areas typically are not farmed and their exclusion should
be considered on a regional basis by the Corps districts.
Several commenters stated that this NWP violates the minimal impact
standard of section 404(e). One commenter supported the proposed change
provided there were further clarifications of purpose. Specifically,
this commenter recommended the permit language should refer to
``foundations and building pads for farm buildings,'' it should refer
to farmed wetlands as those wetlands that were in agricultural crop
production prior to December 23, 1985, and are currently in
agricultural use, and it should refer to discharges associated with a
``single and complete project.'' Another commenter noted that the
permit language allows discharges into jurisdictional wetlands that
were in agricultural production prior to this date, but there is no
explicit requirement that the area still be in agricultural production.
Many stated the proposal to limit this nationwide permit to only ``farm
buildings'' was not simply a clarification, but a reduction in coverage
of the NWP, and were opposed to the modification without data
supporting the need for change. One commenter recommended limiting this
NWP to only farm homes and limiting impacts to only 0.1 acre. Many
commenters also noted that the placement of non-water dependent
structures in wetlands is inappropriate. One commenter recommended that
any discharge into jurisdictional wetlands be compensated by an
approved mitigation plan coordinated with the appropriate resource
agencies. One commenter had no objection to issuance as proposed
provided it was regionally conditioned to apply only to isolated
wetlands. One commenter recommended that this NWP not be reissued due
to impacts to wetlands already sustained in his region, and because the
NWP language provides no guidance on how the one-acre limit is
interpreted, provides no definitions of terms such as ``necessary,''
``agriculturally related,'' and ``minimum''.
The NWP only applies to farmed wetlands that are currently in
agricultural production. We believe that the acreage limitations will
ensure that impacts to farmed wetlands will be minimized. We further
believe that notification and delineation of special aquatic sites is
unnecessary because this nationwide permit applies only to farmed
wetlands that are currently in agricultural production.
Many commenters opposed the reissuance of this NWP without further
clarification of the intent. The majority of the concerns related to
the potential for housing animals or agricultural chemicals in or
adjacent to wetlands with the attendant concerns for contamination of
local water sources from runoff and requested that such structures be
excluded. One commenter noted that this NWP does not require
notification to the Corps or other agency and could potentially render
a potable water source unfit for human consumption. Three commenters
requested language that made it clear that the permittee would still be
required to obtain all other required permits such as waste water and
waste management permits. One commenter recommended reissuance of this
NWP only if it were conditioned for best management practices for size
thresholds, pollutant discharge standards, and monitoring protocols.
The Corps shares the concerns for potential adverse effects to water
quality from runoff and leaching of agricultural chemicals and animal
waste products. Therefore, we have added a Corps-only PCN requirement
for the placement of any farm building within 500 feet of a flowing
stream or waterbody. This PCN will be used by the DE to determine if
adverse effects to water quality may result from the placement of the
farm building. If the DE concludes that the project, as designed, may
adversely effect water quality, additional protective measures,
including relocation of the proposed project, may be required.
Proposed New Nationwide Permit A. Moist Soil Management for
Wildlife: This proposed permit is discussed above in the ``Discussion
of Public Comments and Changes'' section and included below in the
``Nationwide Permits and Conditions'' section as Nationwide Permit 30:
``Moist Soil Management for Wildlife''.
Proposed New Nationwide Permit B. Food Security Act Minimal Effect
Exemptions: The majority of comments on NWP B recommended waiting for
review of the regulations implementing the 1996 Amendments to the Food
Security Act of 1985 (FSA) before
[[Page 65907]]
issuing this nationwide permit. The Corps had anticipated that the
regulations would be final by July 1, 1996; however, it was not
published final until after the end of the comment period for the
proposed nationwide permits. Therefore, we intend to re-propose NWP B
in the Federal Register at a future date. Of the many comments
received, approximately half requested that this nationwide permit not
be issued, mostly based on perceptions that the permit would result in
adverse impacts to wetlands, while the other half supported it. The
comments already received will be considered along with those received
in response to our future notice of proposed issuance of this
nationwide permit.
Proposed New Nationwide Permit C. Mining Operations: A large number
of comments were received on this proposed permit. Through our review
of this proposal we found sand and gravel mining operations and
recreational mining activities vary greatly across the country, not
only in scope but in types and levels of impacts as well. We believe
that the development of regional general permits, including
programmatic general permits based on state or regional programs, will
provide a more effective process for dealing with the differing
conditions of various geographical areas of the country. It would not
be productive to attempt to specify limits to reduce the individual and
cumulative impacts of a NWP for in stream mining to a minimal level
when a majority of the proponents indicate that the permit is of little
value unless the allowable level of impact is increased. Corps
districts and divisions will be encouraged to develop regional general
permits for these activities. Proposed nationwide permit C is not
issued.
Proposed New Nationwide Permit D. Maintenance of Existing Flood
Control Projects: This proposed permit is discussed above in this
``Discussion of Public Comments and Changes'' section and included
below in the ``Nationwide Permits and Conditions'' section as
Nationwide Permit 31: ``Maintenance of Existing Flood Control
Projects''.
IV. Comments and Responses on Nationwide Permit Conditions
A. General Conditions
1. Navigation: The Corps proposed no changes to this condition.
There were no comments received on this condition. This condition is
adopted without change.
2. Proper Maintenance: The Corps proposed no changes to this
condition. Two commenters suggested adding the word ``facilities,''
regarding those activities that are required to be maintained. The
Corps authorizes maintenance of structures or fill within its
jurisdiction under sections 10 and/or 404. We do not regulate the
maintenance of facilities built on the structure or fill. For example,
if a business facility (building) on the upland is not ``maintained,''
while the barge loading dock is properly maintained, the Corps would
not take action regarding maintenance of the building. To avoid any
confusion, the Corps has not added ``facilities'' to this condition.
This condition is adopted without change.
3. Erosion and Siltation: The Corps proposed no changes to this
condition. Several commenters suggested including state and local
erosion and sediment control laws in the General Conditions. Corps
permits do not override or obviate the need to comply with state and
local erosion and siltation control laws. Additionally, the Corps has
no authority to enforce state and local laws. Therefore, the Corps
believes it is unnecessary and inappropriate to include state and local
laws. This condition is adopted without change.
4. Aquatic Life Movement: The Corps proposed no changes to this
condition. A few commenters indicated that projects authorized under an
NWP that substantially disrupts aquatic life movements would not
satisfy minimal impact criteria and should be considered only through
individual permitting procedures. With the current wording of this
condition, if a project proposed for an NWP does substantially disrupt
aquatic life movement, this general condition is not met and the
project cannot be authorized under a nationwide permit. Additionally,
it was requested that the phrase ``unless the activity's primary
purpose is to impound water'' be deleted. We believe there are
impoundment projects which would substantially disrupt the movement of
specific individuals of aquatic life, but which would not adversely
affect the populations of the species nor have more than minimal
impacts on the aquatic environment. This condition is adopted without
change.
5. Equipment: One commenter suggested adding to this condition that
all equipment be stored in uplands to the extent practicable. We
believe this condition is sufficiently clear as stated and applies only
to equipment ``working in wetlands''. Storage of equipment in wetlands
is not addressed because it is not authorized. This condition is
adopted without change.
6. Regional and Case-by-Case Conditions: The Corps proposed no
changes to this condition. There were no comments received on this
condition. We have added a statement that such conditions will also
include those imposed by states or tribes under Section 401, which
clarifies the current practice.
7. Wild and Scenic Rivers: We proposed to allow the use of NWPs in
a component of the National Wild and Scenic Rivers system after
coordination with the managing agency has resulted in a determination
that the project will not adversely affect the status of the river.
Most comments supported the proposed change. No objections to the
proposed change were received. Several commenters requested that we add
``U.S. Fish and Wildlife Service'' after the ``e.g.'' in the last line
because they administer 2 rivers in the lower 48 states and 7 rivers in
Alaska. We will add this to the nationwide permit condition. Comments
were received requesting the addition of the following statement:
This has no effect on procedures established to notify river
management and study agencies of pending applications for permits,
including conditions negotiated for General Permits by the Corps and
those agencies. The proposed activity shall not begin until the
applicant has been notified by the District Engineer that the
requirements of the Wild and Scenic Rivers Act have been met.
None of the nationwide permits or conditions override or obviate the
need for any other Federal agency's requirements for permits or
coordination. The Federal agency responsible for managing the affected
waterway must determine whether all requirements of the Wild and Scenic
Rivers Act have been met. The applicant may make all required
coordination with the appropriate agency without involving the Corps of
Engineers if there is no notification requirement for the nationwide
permit authorizing the proposed project. If the responsible Federal
agency determines the project, as proposed, does not comply with the
Wild and Scenic Rivers Act, individual processing of the application is
required. A comment was also received requesting that the Federal
management agency be required to coordinate with the applicable state
resource agency on projects proposed for authorization by nationwide
permit in Wild and Scenic River areas or study areas and that any state
permits required for a proposed project must be issued before the Corps
provides authorization by a nationwide permit. The responsible Federal
agency is required to complete all coordination
[[Page 65908]]
of activities as specified in their regulations. It is not appropriate
for the Corps to instruct these agencies regarding their program
requirements. This condition is adopted as proposed with the inclusion
of the U.S. Fish and Wildlife as a Federal management agency.
8. Tribal Rights: The Corps proposed no changes to this condition.
One commenter requested inclusion of language to protect cultural
resources, including those protected by the Native American Graves and
Repatriation Act, in addition to tribal rights. The Native American
Graves and Repatriation Act does not apply directly to the Corps
regulatory program. This law is applicable to federal agencies
conducting work on federal lands but does not apply to private citizens
conducting work on private lands. However, many Native American
cultural resources are protected by tribal rights and therefore have
been, and will continue to be, considered under this condition. This
condition is adopted without change.
9. Water Quality Certification: The Corps proposed no changes to
this condition. One commenter suggested that section 401 water quality
certification and the section 404 authorization procedure should be
combined for Nationwide Permit 26. If the appropriate State agency
issues or waivers section 401 water quality certification for any
Nationwide Permit, the authorization process has been effectively
combined. The Clean Water Act specifically separates these
authorizations so that States may place more stringent controls on
projects to reduce water quality impacts as perceived by the State and
not limit the review process to the Federal perspective. This condition
is adopted without change.
10. Coastal Zone Management: The Corps proposed no changes to this
condition. A few commenters indicated that the current announcement
process for Nationwide Permits did not follow Federal consistency
procedures and was not in compliance with Coastal Zone Management
requirements. One commenter suggested conditions that would allow
concurrence on consistency determinations and indicated that the
Nationwide Permits should be revoked for a State where such conditions
for Coastal Zone Management are not present. Many commenters stated
that determination of inconsistency with Coastal Zone Management should
invalidate a permit; and that a requirement for individual reviews
should not be adopted. If a Coastal Zone Management concurrence
determination is not provided for a specific nationwide permit, the
project may not proceed until and individual CZM consistency
determination has been received for the specific proposed project. The
Corps decision that the project will have minimal impact is not
affected. However, the agency responsible for the concurrence
determination will review each project on a case-by-case basis. If the
project specific concurrence determination is denied, the project may
not proceed and the NWP is denied without prejudice.
One commenter believed that a Coastal Zone Management concurrence
determination should not apply to flood control maintenance activities
more than 100 feet upstream of the designated Coastal Zone. The
commenter stated that the project is outside the designated coastal
zone, this condition does not apply. The Corps must determine whether
or not the impacts of a project would affect a state's coastal zone. If
project impacts would affect the States coastal zone, than a
consistency concurrence is required. This condition is adopted without
change.
11. Endangered Species: Although no changes to this condition were
proposed, we have made the change of adding language specific to the
take of endangered species as discussed below. Several commenters
stated that the Corps must determine compliance with section 7 of the
Endangered Species Act and that the applicant will not have sufficient
knowledge to make such a determination. These commenters assert that by
delegating the section 7 ESA responsibility, the Corps NWP program is
not in compliance. A few commenters requested that the endangered
species condition not apply to species ``proposed for listing''.
Several commenters requested that a public notice be issued for all
proposals to obtain public input and environmental review, or that a
universal PCN should be shared with resource agencies. A few commenters
were concerned that section 7 has never been implemented under the NWP
process and that NMFS and USFWS should be consulted prior to final
action. A few commenters recommended that the Corps clarify that
authorization of a project by an NWP does not authorize the taking of
an endangered or threatened species. We will add a statement to this
condition to clarify this issue.
Issuing a public notice or sharing universal PCN's with resource
agencies for input on all proposals would be unduly burdensome to the
Corps and the regulated public, and would not necessarily enhance
protection of endangered species. The Corps believes that the
procedures at 33 CFR 330.1(e) and this condition ensure compliance with
the Endangered Species Act (See general discussion at the beginning of
the preamble). Finally, the Corps does conduct section 7 consultations,
on both standard individual permits and nationwide permits, to ensure
ESA compliance and, as stated above, we are entering into formal
programmatic section 7 consultation for the NWP program. The inclusion
of species ``proposed for listing'' is identified under the Endangered
Species Act and is used in that context. This condition is adopted as
discussed above.
12. Historic Properties: The Corps proposed no changes to this
condition. Several commenters do not believe this condition ensures
compliance with section 106 of the National Historic Preservation Act
(NHPA) or its implementing regulation (36 CFR part 800). These
commenters encourage development of a process which will pre-identify
and evaluate historic properties and cultural resources. Some
commenters suggested limiting this condition to those activities which
may ``adversely'' affect historic properties. We believe that the Corps
procedures outlined in this condition comply with the requirements at
33 CFR 330.4(g) and at 33 CFR part 325, appendix C for protection of
historic properties, which implements 36 CFR part 800, and fully
satisfy the requirements of the NHPA. Furthermore, our experience with
authorizing activities by nationwide permit supports our position. We
do not believe an additional or revised process is necessary. To change
the condition to reduce the threshold for initiating the historic
property process from ``may affect'' to ``may adversly affect'' would
not be appropriate or in compliance with Corps regulations. The ``may
affect'' threshold provides for a process to determine the affect or no
affect on historic properties. The ``not adversely affect''
determination would be decided during the process. If during that
process a determination is made that the activity will not adversly
affect then the project could be authorized by the NWP. This condition
is adopted without change.
13. Notification: We proposed several changes to this condition. In
summary, we proposed to: (1) Contact the agencies on behalf of the
applicant, (2) discontinue PCN coordination with the agencies on NWPs
5, 7, 13, 17, 18, and 34, but allow Regional Directors or
Administrators to request coordination, (3) increase the notification
time period for NWP 26 from 30 to 45 days, and (4) notify the agencies
on NWP 29 and proposed NWP D (now NWP 31). Many
[[Page 65909]]
commenters believe that notifying the agencies is not necessary, many
others believe it is necessary. Some commenters like the proposed
notification reductions, while others expressed concern. A number of
commenters believe that there should be no notification requirements at
all. The primary reasons given were that it would cause permit delays
and that it was unnecessarily burdensome to the regulated public. Many
other commenters believe there should be notifications. The reason for
notifications are to assure minimal impacts, and to ensure compliance
with the National Historic Preservation Act and the Endangered Species
Act. We believe that although comments from the agencies are often
helpful in the permit evaluation, the value added to the Corps decision
for NWPs 5, 7, 13, 17, 18, and 34 is not adequate to continue the
process. We believe that the limited resources from all agencies are
better utilized by focusing on projects with potentially greater
environmental impacts.
Many commenters raised concern that, by applying compensatory
mitigation in the context of a NWP, the Corps authorizes activities
that, but for the mitigation, may have more than minimal adverse
environmental effects. Those commenters were concerned that the CWA
requires that only activities with minimal effects may be authorized by
a general permit. Activities that have more than minimal adverse
effects are subject to the individual permit process and the associated
analysis of alternatives, individual public notice procedures, and
other aspects of individual review that help to ensure that potential
adverse effects are fully avoided and minimized before any activity is
approved.
Given these concerns, the Corps will be considering whether or not
modifications to the mitigation provisions of the regulations are
appropriate and will be meeting with other Federal agencies to discuss
this issue. In the interim, the Corps is seeking specific comment on
the use of compensatory mitigation in the context of the Nationwide
Permit program and any recommendations for modification to the
mitigation provisions. Should the Corps determine that revision to this
policy is appropriate, a rulemaking process to change the regulations
at 33 CFR part 330 may be necessary. This process would include notice
and full opportunity for public participation.
A few commenters suggested that NWP 12 needs delineation of special
aquatic sites. We disagree. Fills associated with NWP 12 are temporary
in nature and the areas impacted are to be returned to original
contours and elevations after the work is completed for projects not
subject to the PCN process. The Corps evaluates those projects subject
to the PCN process and will determine whether there are substantial
problems regarding jurisdiction.
Several commenters requested we increase the time allowed for the
agencies to respond. As noted in the preamble section on NWP 26
notification, we will allow the agencies an additional 7 calendar days
by extending the maximum additional time the agency can request to 21
calendar days. The agency coordination times for all other NWPs will
remain 5 and 14 days. We believe these modifications to the current
times are responsive to the greatest area of concern, NWP 26, while not
increasing delays for the regulated public where there is less
potential for more than minimal adverse effects.
One commenter suggested that notification be required for NWP 23
because of the potential for large projects and significant wetland
impacts. NWP 23 activities, by their definition, are actions ``which
neither individually or cumulatively have a significant effect on the
human environment,'' have already gone through a NEPA analysis, and
have already had a public review and comment period when they were
first proposed for inclusion under NWP 23. Furthermore, in some
specific cases a PCN is required in the individual Corps approval of
another agency's categorical exclusions.
One commenter noted that there are no consequences for an
incomplete notification, thus, it is not in the applicant's interest
for him to raise all the issues that may affect his proposal. The
commenter suggested that the resource agencies have information and
resources that would help identify these issues and it would be
advantageous to the program for the Corps to coordinate projects with
them before making a complete determination. The consequences for
submitting an incomplete notification is a delay in the Corps
evaluation, and hence the authorization, of the project proposal. The
Corps initial review of PCNs includes a determination on whether the
PCN is complete. Since most applicants are trying to reduce the amount
of delay as much as possible, we believe the incentive to submit a
complete application is adequate.
A number of commenters provided recommendations for improving the
coordination among agencies at the local level. The Corps is with this
final package we are issuing today directing substantial increases in
coordination and communication at the district and division level. This
increased coordination will be part of developing regional conditions
for the reissued NWPs, developing replacement NWPs for NWP 26,
endangered species compliance, and working with the States. However, we
also suggest that individuals and agencies contact their respective
Corps districts to provide those recommendations.
One commenter suggested that the Corps notify the applicant upon
receiving the PCN and indicate whether it was complete and when a
decision would be made. The applicant will be notified if the
notification is incomplete and will be informed regarding what
information is necessary for the notification to be considered
complete.
Several agencies recommended PCN's for NWP 5, 7, 13, 17, 18, and
34. The commenters indicate that major impact projects have been
proposed involving NWP 7 (outfalls) and NWP 13 (bank stabilization). A
commenter requested that the following list of permits be coordinated
with resource agencies: 7, 12, 13, 17, 18, 21, 26, 27, 29, 34, 35, and
C. Another commenter requested agency notifications for 7, 13, 14, 18,
21, 26, 33, 37, 38, and the new NWPs. We have carefully reviewed all of
the requests for changes to the NWPs for which notification under
General Condition 13 has been requested. Based on this review, several
NWPs will involve notification coordination with the resource agencies,
several will be Corps-only review of the PCN, and several are subject
to the optional process for agency coordination. Some projects
authorized under NWP 7 or 13 involve major impacts outside of the
waters of the United States. These major impacts are not within the
Corps authority to regulate or control.
Several commenters suggested changing the terminology of PCN back
to PDN. The terminology causes confusion because the regulated activity
is a discharge and construction implies work on high ground. The term
PCN (pre-construction notification) has been adopted over the term PDN
(pre-discharge notification) because many of the NWPs are not
authorizing a discharge, in Section 404 waters, but are authorizing
work in navigable, Section 10, waters. Since these do not involve
authorization of a ``discharge'', we believe the term ``construction''
is more appropriate for all NWPs. The Corps does not control or
regulate activities in uplands, including when construction is
initiated, beyond these limited
[[Page 65910]]
circumstances identified in 33 CFR part 324 appendix B, Scope of
Analysis.
A number of commenters believe that the requirement for the
applicant to notify the FWS and the SHPO speeds up their permit by
allowing them to develop alternatives and mitigation measures. They
believe that if the Corps is tasked with this responsibility, their
permit will be delayed and the applicant would lose control of the
schedule. They also believe that if the proposal is adopted, these
agencies will not be willing to work directly with the applicant and
will only work through the Corps. One commenter expressed concern that
the reason for not requiring applicants to contact the SHPO was because
the SHPO did not want to work directly with the applicants. The
commenter suggested that this was counter-productive and that the Corps
should explore ways to ensure that such organizations cooperate with
the permit applicants early in the process. These agencies have
requested that the Corps send the PCNs to them rather than direct
contact between them and the applicant. This process ensures that these
commenting agencies only review active, complete applications. This
process does not preclude an applicant from contacting the agencies for
information.
One commenter recommended that the SHPO be allowed a 30-day review
to ensure that historic resources were adequately addressed. Another
stated that the SHPO would not do the Corps work and that data on
potential historic properties should accompany the transmittal of the
PCN, and that any deadlines for response to the Corps begin after the
receipt of adequate information. The Corps believes that the current
process provides a reasonable amount of time for the SHPOs to provide
their views. The intent of the PCN is to identify if there is a
potential historic property problem, not to completely resolve such
problems. If a problem regarding an effect on a historic property is
identified during the PCN process, then the Corps will instruct the
applicant that they cannot proceed with the project until coordination
to resolve the problem is completed.
Several commenters stated that the notification process does not
allow them to comment on proposed projects. They don't believe that the
provisions in the CWA are being met, since the agencies and the public
have no opportunity to comment. The Corps regulations establish a
process for publishing proposed nationwide permits for public comment
(33 CFR part 330). Based on this process, the Corps issues NWPs that
have procedural steps to ensure agency coordination and the ability of
the Corps district to require a full public interest review, where the
Corps believes such review is necessary, through its discretionary
authority.
A couple of commenters suggested a time threshold for Section 401
water quality certification that was in line with the other agency
review times. The Corps regulations provide that project specific
section 401 evaluations will generally be completed within 60 days.
However, districts may, working with the States, extend this time
period not to exceed 1 year. We do not propose to change this process.
One commenter suggested that extensions be provided to commenting
agencies, or an IP be required, in situations where delays are caused
by insufficient or inaccurate maps and depiction of proposed action.
This commenter also indicated that the mitigation option of the
contribution of monies to a wetland trust fund be more clearly
discussed. This commenter also suggested that the Corps apply
notification condition 13(b)(5) (restoration plan for temporary fill
sites) to NWP 12 and 15, both of which allow the temporary placement of
dredged or fill material. Finally, this commenter suggested that the
Corps extend the initial comment period for resource agencies to 7
calendar days for all NWPs, and eliminate the prohibition on the Corps
responding to agency comments. The Corps does not coordinate PCNs with
resource agencies until the PCN is considered complete, so that the
basic information is adequate for review. Furthermore, we believe it is
essential to provide an answer to applicants within the PCN period of
30 days (45 days for NWP 26). We do not believe that it would be
beneficial to explicitly define in lieu fee systems nor wetland land
trusts. These vary around the country and we will expect our districts
to ascertain whether or not a given situation will reasonably ensure
quality and successful mitigation. We do not believe that any
additional restrictions are necessary for either NWP 12 or NWP 15. We
have already added substantial additional restrictions to NWP 12.
Should a problem arise with NWP 15, either the Coast Guard or the Corps
will address it on a case by case basis. We do not believe that it is
necessary to extend the initial comment period for the resource
agencies from 5 to 7 days. This period is simply to determine whether
or not site specific, substantive comments will be provided. Finally,
we do not believe that the notification process or environmental
protection would be advanced by responding to resource agency comments
on PCNs. If any agency wishes to know how the Corps utilized their
comments, that agency can call the Corps district and discuss the
specific project. We encourage this type of informal coordination.
One commenter suggested that inclusion of different times regarding
agency review and response to applicants for different nationwide
permits would create a lot of confusion. We carefully considered the
concern that variable comment periods might be confusing to the
commenting agencies or the regulated public. However, under our revised
NWP 26, we expect a substantial increase in the number of PCNs, and the
Corps is directing its districts to carefully consider project impacts
and potential mitigation on most of them. Therefore, we believe the
additional time is necessary for NWP 26.
One commenter suggested that affected tribes be included in the
notification process. We believe that since the tribes are inherently
aware of all Corps regulatory matters on tribal lands, additional
notification is unnecessary. Furthermore, we believe that NWP General
Condition 8, ``Tribal Rights,'' is sufficient to address tribal treaty
rights issues, and District Engineers will notify the tribes regarding
these treaty rights, as necessary.
We believe that the review of PCNs by the state does provide
valuable information and we have retained that provision. However, the
optional coordination procedure is made available for activities that
we believe will typically be clearly minimal. We believe that allowing
this optional procedure only for the Federal resource agencies will
adequately ensure appropriate coordination.
A few commenters requested eliminating the provision authorizing
discharges when a DE does not notify the applicant within a specified
time frame. We believe that the PCN process allows the district
adequate time to evaluate PCNs and provide the applicant with an
answer. Moreover, we believe that we must have a definitive answer to
the applicant at the end of the 30-day (45 days for NWP 26) PCN period.
Creating extensions would result in substantial confusion.
One commenter recommended that wording of condition 13(f) be
changed to read ``* * * with the current methods required by the
Memorandum of Agreement among USDA, EPA, and DOA.'' This commenter also
stated that condition 13(g) mitigation, should specify that mitigation
banks need to comply with the 1995 Federal
[[Page 65911]]
Guidance, should include a requirement to monitor compensatory
mitigation projects for a specified period of time, abandoned mine
lands should have no contaminants accumulated as a result of the mining
operation, and compensatory mitigation should be accomplished prior to
initiation of authorized work. We believe that compliance with existing
conditions of the NWPs and the fact that requirements for delineations
and mitigation banks are implicitly clear, based on total program
guidance, make additional guidance on these issues unnecessary.
Regarding timing of compensatory mitigation, we believe it is more
important to have potentially high-quality mitigation, such as can be
provided with in lieu fees to states, locals interests or land trusts,
rather than pushing for mitigation completion before impacts occur.
One commenter requested that individuals impacted by a nationwide
permit should be notified. We have followed the clear provisions of 33
CFR 330 regarding notification of the nationwide permits.
Several commenters requested that the Corps return to the 1991
wording regarding including any conditions the District Engineer deems
necessary under Condition 13(d), and that, if the new language is
retained, a clear explanation of why this change was made should be
provided. We have reviewed the proposed language as well as the 1991
language regarding conditions that will be placed on a PCN
verification. We have decided that the original language, stating that
the District Engineer will include conditions he deems necessary, is
the appropriate language. This condition is adopted as discussed above.
14. Compliance Certification: The Corps has determined that in
association with our efforts to collect more accurate data on project
impacts and mitigation, and consistent with our intent to maximize
permittee compliance, this condition is necessary. The condition
requires the permittee to certify, in writing, that he has accomplished
the work as authorized by the Corps, including any mitigation. The
certification will help the Corps ensure permit compliance as well as
continuously evaluate mitigation success.
15. Multiple Use of Nationwide Permits: In response to the concerns
raised regarding the stacking of NWPs, the Corps has determined that a
notification to the Corps, where any NWP 12 through 40 is combined with
any other NWP 12 through 40, as part of a single and complete project,
should be required to ensure that the effects will be minimal. This
notification will be reviewed by the Corps only. Coordination with the
resource agencies is not required, but may be done on a case-by-case
basis when determined by the District Engineer to be necessary.
Furthermore, no notification is required to the Corps when any NWP 1
through 11 is combined with any other NWP. The issue of stacking of
NWPs is discussed in more detail in the ``Stacking of NWPs'' section of
this Preamble.
B. Section 404 Only Conditions
1. Water Supply Intakes: The Corps proposed no changes and there
were no comments on this condition. The condition is adopted without
change.
2. Shellfish Production: The Corps proposed no changes and there
were no comments on this condition. The condition is adopted without
change.
3. Suitable Material: The Corps proposed no changes to this
condition. One commenter suggested that this condition should include a
certification for the toxicity testing of the fill material. We believe
the permittee is responsible for taking reasonable measures to ensure
that suitable fill material is free from toxic pollutants. This
suggestion would be an unreasonable requirement for minor projects with
little likelihood of the potential for toxic pollutants in toxic
amounts. Furthermore, the NWP restricts the use of certain materials.
In addition, for those projects with a Preconstruction Notification,
the DE will require testing if the DE has reason to believe the
material may be contaminated. Another commenter suggested that asphalt
be added to our list of unsuitable materials specifically mentioned in
this condition. Since this has been a general misunderstanding
throughout the country that has resulted in several violations, we
agree with this commenter and have added this to the condition. This
condition has been modified as discussed above.
4. Mitigation: The Corps proposed a change to this condition that
would allow off-site mitigation in lieu of on-site mitigation, if it is
the environmentally preferred option. Several commenters were opposed
to the proposed change to this condition. They believed the change
would result in one or more of the following: A more subjective
evaluation would occur; the evaluation would focus solely on a
project's benefit to the environment instead of the Corps process of
balancing various public interest factors; the District Engineer would
be required to evaluate one wetland type against another; and time
requirements and monetary costs would be increased for the applicants.
Several other commenters were concerned that the proposed modification
sidesteps the application of the mitigation sequencing process
(avoidance, minimization, and compensation) and would allow evaluation
of compensation concurrent with avoidance and minimization. Two
commenters believed that the proposed evaluation process would allow
``buy down'' of impacts via compensation in order to result in a
minimal net effect determination. Several commenters felt that
mitigation should be eliminated as a condition since activities
requiring mitigation, by definition, include more than minimal
environmental impacts. One commenter stated that the proposal added no
value in protecting or preserving wetlands. A few commenters supported
the clarification and requirement for mitigation. One commenter
recommended that the District Engineer have the ability to approve
mitigation on-site, off-site, or at an established mitigation bank.
Another commenter suggested that the U.S. Fish and Wildlife Service and
U.S. Environmental Protection Agency should have the opportunity to
comment on the results of the District Engineer's evaluation. One
commenter criticized the general permit program for allowing wetland
losses without avoidance of impacts or with no mitigation at all.
This condition requires that the permittee avoid and minimize
discharges of dredged or fill material at the project site to the
maximum extent practicable. This condition does not address the issue
of requiring compensatory mitigation to reduce a project's impacts to
the minimal effect level. This issue is discussed in the preamble in
the discussion of General Condition 13. Furthermore, the ``sequencing''
requirement for individual permits for off-site avoidance under the
section 404(b)(1) Guidelines does not apply to general permits. (See 40
CFR 230.7.) The proposed change was for allowing some projects, with
minimal adverse effects, to be allowed less on-site avoidance and
minimization than to the maximum extent practicable, provided off-site
mitigation is provided such that there are more environmental benefits.
We believe that where there is more environmental benefit from such
mitigation, it should be allowed. The District Engineer will review and
consider such a proposal, but will only approve it if the District
Engineer determines that there is clear environment benefit. This
condition is adopted as proposed.
[[Page 65912]]
5. Spawning Areas: The Corps proposed no changes to this condition.
One commenter suggested that we ban discharges in spawning areas during
spawning season. Another commenter suggested that discharges also be
avoided during the incubation season. In addition to this condition,
District and Division Engineers can and do add local restrictions, by
regionally conditioning the NWP, to address certain activities along
some waters at important times of the year for spawning activities. We
believe that since these impacts vary from waterbody to waterbody and
by type of activity, that it is best handled by specific regional
conditions. This condition is adopted without change.
6. Obstruction of High Flows: The Corps proposed no changes to this
condition. There were no comments on this condition. This condition is
adopted without change.
7. Adverse Effects From Impoundment: The Corps proposed no changes
to this condition. A couple of commenters suggested modifying this
condition to require avoidance of impoundment impacts. We believe that
this condition has been successful in ensuring that the impacts will be
minimal and at the lowest level practicable. This condition is adopted
without change.
8. Waterfowl Breeding Areas: The Corps proposed no changes to this
condition. One commenter suggested disallowing any discharges within
waterfowl breeding areas. Another commenter suggested that we include
breeding areas for shorebirds and neotropical migratory songbirds. The
Corps believes this would place an unreasonable and overly restrictive
limitation on this NWP, and that the condition, as worded, provides
sufficient protection. This condition is adopted without change.
9. Removal of Temporary Fills: The Corps proposed no changes to
this condition. A few commenters suggested requiring the disturbed area
be revegetated with indigenous plant species. We believe the conditions
imposed on NWPs allowing for temporary fills will enable the area to
revegetate naturally with native species once the area is restored to
its preexisting elevation. This condition is adopted without change.
Regional Conditioning of 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, the 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 Section 401 water quality
certification or for state coastal zone 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://wetland.usace.mil/.
Alabama
Mobile District Engineer, ATTN: CESAM-OP-S, P.O. Box 2288, Mobile,
AL 36628-0001
Alaska
Alaska District Engineer, ATTN: CENPA-CO-R, P.O. Box 898, Anchorage,
AK 99506-0898
Arizona
Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 2711, Los
Angeles, CA 90053-2325
Arkansas
Little Rock District Engineer, ATTN: CESWL-CO-R, P.O. Box 867,
Little Rock, AR 72203-0867
California
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-4794
Colorado
Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson
Plaza NE, Rm 313, Albuquerque, NM 87109-3435
Connecticut
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
Delaware
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square, East Philadelphia, PA 19107-3390
Florida
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32232-0019
Georgia
Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889,
Savannah, GA 31402-0889
Hawaii
Honolulu District Engineer, ATTN: CEPOD-ET-PO, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN: CENPW-OP-RF, Building 602,
City-County Airport, Walla Walla, WA 99362-9265
Illinois
Rock Island District Engineer, ATTN: CENCR-OD-S, P.O. Box 2004, Rock
Island, IL 61201-2004
Indiana
Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
Iowa
Rock Island District Engineer, ATTN: CENCR-OD-S, P.O. Box 2204, Rock
Island, IL 61201-2004
Kansas
Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
Kentucky
Louisville District Engineer, ATTN: CEORL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
Louisiana
New Orleans District Engineer, ATTN: CELMN-OD-S, P.O. Box 60267, New
Orleans, LA 70160-0267
Maine
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
Maryland
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Massachusetts
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
Michigan
Detroit District Engineer, ATTN: CENCE-CO-L, P.O. Box 1027, Detroit,
MI 48231-1027
Minnesota
St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,
East, St. Paul, MN 55101-1638
Mississippi
Vicksburg District Engineer, ATTN: CELMV-CO-0, P.O. Box 80,
Vicksburg, MS 39180-0080
Missouri
Kansas City District Engineer, ATTN: CEMRK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
Montana
Omaha District Engineer, ATTN: CEMRO-OP-R, P.O. Box 5, Omaha, NE
68101-0005
Nebraska
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,
Omaha, NE 68101-4978
Nevada
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-2922
[[Page 65913]]
New Hampshire
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
New Jersey
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square East, Philadelphia, PA 19106-2991
New Mexico
Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson
Plaza NE, Rm 313, Albuquerque, NM 87109-3435
New York
New York District Engineer, ATTN: CENAN-OP-R, Jacob K. Javits
Federal Building, New York, NY 10278-0090
North Carolina
Wilmington District Engineer, ATTN: CESAW-CO-R, P.O. Box 1890,
Wilmington, NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,
Omaha, NE 68102-4978
Ohio
Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-OD-R, P.O. Box 61, Tulsa, OK
74121-0061
Oregon
Portland District Engineer, ATTN: CENPP-PL-R, 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 Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
South Carolina
Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919,
Charleston, SC 29402-0919
South Dakota
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street,
Omaha, NE 68102-4978
Tennessee
Nashville District Engineer, ATTN: CEORN-OR-F, P.O. Box 1070,
Nashville, TN 37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-OD-R, P.O. Box 17300, Ft.
Worth, TX 76102-0300
Utah
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, CA
95814-4794
Vermont
New England Division Engineer, ATTN: CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
Virginia
Norfolk District Engineer, ATTN: CENAO-OP-P, 803 Front Street,
Norfolk, VA 23510-1096
Washington
Seattle District Engineer, ATTN: CENPS-OP-RG, P.O. Box 3755,
Seattle, WA 98124-2255
West Virginia
Huntington District Engineer, ATTN: CEORH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CENCS-CO-R, 190 Fifth Street,
East, St. Paul, MN 55101-1638
Wyoming
Omaha District Engineer, ATTN: CEMRO-OP-R, 215 North 17th Street, NE
68102-4978
District of Columbia
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Pacific Territories
Honolulu District Engineer, ATTN: CEPOD-ET-PO, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
Puerto Rico & Virgin Is
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32232-0019
Approved:
Russell L. Fuhrman,
Major General, U.S. Army, Director of Civil Works.
Accordingly, these Nationwide Permits are issued as follows:
Nationwide Permits and Conditions
A. Index of the Nationwide Permits and Conditions
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
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Discharges
13. Bank Stabilization
14. Road Crossings
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 Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharges
26. Headwaters and Isolated Waters Discharges
27. Wetland and Riparian Restoration and Creation Activities
28. Modifications of Existing Marinas
29. Single-Family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Projects
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. Reserved
40. Farm Buildings
Nationwide Permit Conditions
General Conditions:
1. Navigation
2. Proper Maintenance
3. Erosion and Siltation Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality Certification
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Multiple Use of Nationwide Permits.
Section 404 Only Conditions
1. Water Supply Intakes
2. Shellfish Production
3. Suitable Material
4. Mitigation
5. Spawning Areas
6. Obstruction of High Flows
7. Adverse Effects from Impoundments
8. Waterfowl Breeding Areas
9. Removal of Temporary Fills
B. Nationwide Permits and Conditions
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.
[[Page 65914]]
(See 33 CFR part 66, chapter I, subchapter C). (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: 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 which are necessary to make repair, rehabilitation, or
replacement are permitted, provided the environmental effects resulting
from such repair, rehabilitation, or replacement are minimal. Currently
serviceable means useable as is or with some maintenance, but not so
degraded as to essentially require reconstruction. This NWP authorizes
the repair, rehabilitation, or replacement of those structures
destroyed by storms, floods, fire or other discrete events, provided
the repair, rehabilitation, or replacement is commenced or 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. Maintenance dredging and beach restoration are not
authorized by this NWP. (Sections 10 and 404)
4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities: Fish and wildlife harvesting devices and
activities such as pound nets, crab traps, crab dredging, eel pots,
lobster traps, duck blinds, clam and oyster digging; and small fish
attraction devices such as open water fish concentrators (sea kites,
etc.). This NWP authorizes shellfish seeding provided this activity
does not occur in wetlands or 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.). 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 and further for discharges of 10
to 25 cubic yards provided the permittee notifies the District Engineer
in accordance with the ``Notification'' general condition. (Sections 10
and 404)
6. Survey Activities: Survey activities including core sampling,
seismic exploratory operations, plugging of seismic shot holes and
other exploratory-type bore holes, soil survey and sampling, and
historic resources surveys. 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 is not authorized by this NWP; the plugging of
such wells is authorized. Fill placed for roads, pads and other similar
activities is not authorized by this NWP. The NWP does not authorize
any permanent structures. The discharge of drilling muds and cuttings
may require a permit under section 402 of the Clean Water Act.
(Sections 10 and 404)
7. Outfall Structures. Activities related to construction of
outfall structures and associated intake structures where the effluent
from the outfall is authorized, conditionally authorized, or
specifically exempted, or are otherwise in compliance with regulations
issued under the National Pollutant discharge Elimination System
program (Section 402 of the Clean Water Act), provided that the
permittee notifies the District Engineer in accordance with the
``Notification'' general condition. (Also see 33 CFR 330.1(e)). Intake
structures per se are not included--only those directly associated with
an outfall structure. (Sections 10 and 404)
8. Oil and Gas Structures. 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).
(Where such limits have not been designated, or where changes are
anticipated, District Engineers will consider asserting discretionary
authority in accordance with 33 CFR 330.4(e) and will also review such
proposals to ensure they comply with the provisions of the fairway
regulations in 33 CFR 322.5(l). Any Corps review under this permit 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. (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 such areas have been established
for that purpose by the U.S. Coast Guard. (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 Discharges. Discharges of dredged or fill material
associated with excavation, backfill or bedding for utility lines,
including outfall and intake structures, provided there is no change in
preconstruction contours. A ``utility line'' is defined as any pipe or
pipeline for the transportation of any gaseous, liquid, liquefiable, 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 which drain a water of the
United States, such as drainage tile; however, it does apply to pipes
conveying drainage from another area. This NWP authorizes mechanized
landclearing necessary for the installation of utility lines, including
overhead utility lines, provided the cleared area is kept to the
minimum necessary and preconstruction contours
[[Page 65915]]
are maintained. However, access roads, temporary or permanent, or
foundations associated with overhead utility lines are not authorized
by this NWP. Material resulting from trench excavation may be
temporarily sidecast (up to three months) into waters of the United
States, provided that the material is not placed in such a manner that
it is dispersed by currents or other forces. The DE may extend the
period of temporary side-casting not to exceed a total of 180 days,
where appropriate. The area of waters of the United States that is
disturbed must be limited to the minimum necessary to construct the
utility line. In wetlands, the top 6'' to 12'' of the trench should
generally be backfilled with topsoil from the trench. Excess material
must be removed to upland areas immediately upon completion of
construction. Any exposed slopes and stream banks must be stabilized
immediately upon completion of the utility line. (See 33 CFR part 322).
Notification: The permittee must notify the district engineer in
accordance with the ``Notification'' general condition, if any of the
following criteria are met:
(a) Mechanized landclearing in a forrested wetland;
(b) A Section 10 permit is required for the utility line;
(c) The utility line in waters of the United States exceeds 500
feet; or,
(d) The utility line is placed within a jurisdictional area (i.e.,
a water of the United States), and it runs parallel to a streambed that
is within that jurisdictional area. (Sections 10 and 404)
13. Bank Stabilization. Bank stabilization activities necessary for
erosion prevention provided the activity meets all of the following
criteria:
a. No material is placed in excess of the minimum needed for
erosion protection;
b. The bank stabilization activity is less than 500 feet in length;
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;
d. No material is placed in any special aquatic site, including
wetlands;
e. No material is of the type, or is placed in any location, or in
any manner, so as to impair surface water flow into or out of any
wetland area;
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 part of a single and complete project.
Bank stabilization activities in excess of 500 feet in length or
greater than an average of one cubic yard per running foot may be
authorized if the permittee notifies the District Engineer in
accordance with the ``Notification'' general condition and the District
Engineer determines the activity complies with the other terms and
conditions of the NWP and the adverse environmental effects are minimal
both individually and cumulatively. This NWP may not be used for the
channelization of a water of the Unitied States. (Sections 10 and 404)
14. Road Crossings. Fills for roads crossing waters of the United
States (including wetlands and other special aquatic sites) provided
the activity meets all of the following criteria:
a. The width of the fill is limited to the minimum necessary for
the actual crossing;
b. The fill placed in waters of the United States is limited to a
filled area of no more than \1/3\ acre. Furthermore, no more than a
total of 200 linear feet of the fill for the roadway can occur in
special aquatic sites, including wetlands;
c. The crossing is culverted, bridged or otherwise designed to
prevent the restriction of, and to withstand, expected high flows and
tidal flows, and to prevent the restriction of low flows and the
movement of aquatic organisms;
d. The crossing, including all attendant features, both temporary
and permanent, is part of a single and complete project for crossing of
a water of the United States; and,
e. For fills in special aquatic sites, including wetlands, the
permittee notifies the District Engineer in accordance with the
``Notification'' general condition. The notification must also include
a delineation of affected special aquatic sites, including wetlands.
This NWP may not be combined with NWP 18 or NWP 26 for the purpose
of increasing the footprint of the road crossing. Some road fills may
be eligible for an exemption from the need for a Section 404 permit
altogether (see 33 CFR 323.4). Also, where local circumstances indicate
the need, District Engineers will define the term ``expected high
flows'' for the purpose of establishing applicability of this NWP.
(Sections 10 and 404)
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 an individual or regional Section
404 permit. (Section 404)
16. Return Water From Upland Contained Disposal Areas. Return water
from an upland, contained dredged material disposal area. The dredging
itself may require a section 404 permit (33 CFR 323.2(d)), but will
require a Section 10 permit if located in navigable waters of the
United States. 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 thus
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. (Section 404)
17. Hydropower Projects: Discharges of dredged or fill material
associated with (a) small hydropower projects at existing reservoirs
where the project, which includes the fill, are licensed by the Federal
Energy Regulatory Commission (FERC) under the Federal Power Act of
1920, as amended; and has a total generating capacity of not more than
5000 KW; and the permittee notifies the District Engineer in accordance
with the ``Notification'' general condition; or (b) hydropower projects
for which the FERC has granted an exemption from licensing 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; provided the
permittee notifies the District Engineer in accordance with the
``Notification'' general condition. (Section 404)
18. Minor Discharges: Minor discharges of dredged or fill material
into all waters of the United States provided that the activity meets
all of the following criteria:
a. The quantity of discharged material and the volume of excavated
area does not exceed 25 cubic yards below the plane of the ordinary
high water mark or the high tide line;
b. The discharge, including any excavated area, will not cause the
loss of more than 1/10 acre of a special aquatic site, including
wetlands. For the purposes of this NWP, the acreage limitation includes
the filled area and excavated area plus special aquatic sites that are
adversely affected by flooding and special aquatic sites that are
[[Page 65916]]
drained so that they would no longer be a water of the United States as
a result of the project;
c. If the discharge, including any excavated area, exceeds 10 cubic
yards below the plane of the ordinary high water mark or the high tide
line or if the discharge is in a special aquatic site, including
wetlands, the permittee notifies the District Engineer in accordance
with the ``Notification'' general condition. For discharges in special
aquatic sites, including wetlands, the notification must also include a
delineation of affected special aquatic sites, including wetlands (Also
see 33 CFR 330.1(e)); and
d. The discharge, including all attendant features, both temporary
and permanent, is part of a single and complete project and is not
placed for the purpose of a stream diversion.
e. This NWP can not be used in conjunction with NWP 26 for any
single and complete project. (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) as
part of a single and complete project. 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 which 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 part 112.3 and
any existing State contingency plan and provided that the Regional
Response Team (if one exists in the area) concurs with the proposed
containment and cleanup action. (Sections 10 and 404)
21. Surface Coal Mining Activities: Activities associated with
surface coal mining activities provided they are authorized by the
Department of the Interior, Office of Surface Mining (OSM), or by
states with approved programs under Title V of the Surface Mining
Control and Reclamation Act of 1977 and provided the permittee notifies
the District Engineer in accordance with the ``Notification'' general
condition. The notification must include an OSM or state approved
mitigation plan. The Corps, at the discretion of the District Engineer,
may require a bond to ensure success of the mitigation, if no other
Federal or state agency has required one. For discharges in special
aquatic sites, including wetlands, the notification must also include a
delineation of affected special aquatic sites, including wetlands.
(Also see 33 CFR 330.1(e)) (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 the removal of vessels
listed or determined eligible for listing on the National Register of
Historic Places unless the District Engineer is notified and indicates
that there is compliance with the ``Historic Properties'' general
condition. This NWP does not authorize maintenance dredging, shoal
removal, or river bank snagging. Vessel disposal in waters of the
United States may need a permit from EPA (see 40 CFR 229.3). (Sections
10 and 404)
23. Approved Categorical Exclusions: Activities undertaken,
assisted, authorized, regulated, funded, or financed, in whole or in
part, by another Federal agency or department where that agency or
department has determined, pursuant to the Council on Environmental
Quality Regulation for Implementing the Procedural Provisions of the
National Environmental Policy Act (40 CFR part 1500 et seq.), that the
activity, work, or discharge is categorically excluded from
environmental documentation because it is included within a category of
actions which neither individually nor cumulatively have a significant
effect on the human environment, and the Office of the Chief of
Engineers (ATTN: CECW-OR) has been furnished notice of the agency's or
department's application for the categorical exclusion and concurs with
that determination. Prior to approval for purposes of this NWP of any
agency's categorical exclusions, the Chief of Engineers will solicit
public comment. In addressing these comments, the Chief of Engineers
may require certain conditions for authorization of an agency's
categorical exclusions under this NWP. (Sections 10 and 404)
24. State Administered Section 404 Program. Any activity permitted
by a state 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. Those activities which do not involve a
section 404 state 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. 59l) (see 33 CFR 322.3(a)(2)). (Section 10)
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, homes, parking
areas, storage areas and other such structures. Housepads or other
building pads are also not included in this NWP. The structure itself
may require a section 10 permit if located in navigable waters of the
United States. (Section 404)
26. Headwaters and Isolated Waters Discharges: Discharges of
dredged or fill material into headwaters and isolated waters provided
that the activity meets all of the following criteria:
a. The discharge does not cause the loss of more than 3 acres of
waters of the United States nor cause the loss of waters of the United
States for a distance greater than 500 linear feet of the stream bed;
b. For discharges causing the loss of greater than \1/3\ acre of
waters of the United States, the permittee notifies the District
Engineer in accordance with the ``Notification'' general condition;
c. For discharges causing a loss of \1/3\ acre or less of waters of
the United States the permittee must submit a report within 30 days of
completion of the work, containing the information listed below;
d. For discharges in special aquatic sites, including wetlands, the
notification must also include a delineation of affected special
aquatic sites, including wetlands (Also see 33 CFR 330.1(e)); and
e. The discharge, including all attendant features, both temporary
and permanent, is part of a single and complete project. Note, this NWP
will expire on February 11, 1999.
For the purposes of this NWP, the acreage of loss of waters of the
United States includes the filled area plus waters of the United States
that are adversely affected by flooding,
[[Page 65917]]
excavation or drainage as a result of the project. The 3 acre and \1/3\
acre limits of NWP 26 are absolute, and cannot be increased by any
mitigation plan offered by the applicant or required by the District
Engineer. Whenever any other NWP is used in conjunction with this NWP,
the total acreage of impacts to waters of the United States of all NWPs
combined, can not exceed 3 acres.
Subdivisions: For any real estate subdivision created or subdivided
after October 5, 1984, a notification pursuant to subsection (b) of
this NWP is required for any discharge which would cause the aggregate
total loss of waters of the United States for the entire subdivision to
exceed \1/3\ acre. Any discharge in any real estate subdivision which
would cause the aggregate total loss of waters of the United States in
the subdivision to exceed 3 acres is not authorized by this NWP; unless
the District Engineer exempts a particular subdivision or parcel by
making a written determination that: (1) The individual and cumulative
adverse environmental effects would be minimal and the property owner
had, after October 5, 1984, but prior to February 11, 1997, committed
substantial resources in reliance on NWP 26 with regard to a
subdivision, in circumstances where it would be inequitable to
frustrate the property owner's investment-backed expectations, or (2)
that the individual and cumulative adverse environmental effects would
be minimal, high quality wetlands would not be adversely affected, and
there would be an overall benefit to the aquatic environment. Once the
exemption is established for a subdivision, subsequent lot development
by individual property owners may proceed using NWP 26. For purposes of
NWP 26, the term ``real estate subdivision'' shall be interpreted to
include circumstances where a landowner or developer divides a tract of
land into smaller parcels for the purpose of selling, conveying,
transferring, leasing, or developing said parcels. This would include
the entire area of a residential, commercial or other real estate
subdivision, including all parcels and parts thereof.
Report: For discharges causing the loss of \1/3\ acre or less of
waters of the United States the permittee must submit a report within
30 days of completion of the work, containing the following
information:
(a) Name, address, and telephone number of the permittee;
(b) Location of the work;
(c) Description of the work; and,
(d) Type and acreage (or square feet) of the loss of waters of the
United States (e.g., \1/10\ acre of marsh and 50 Square feet of a
stream.) (Section 404)
27. Wetland and Riparian Restoration and Creation Activities:
Activities in waters of the United States associated with the
restoration of former non-tidal wetlands and riparian areas, the
enhancement of degraded wetlands and riparian areas, and creation of
wetlands and riparian areas; (i) On non-Federal public lands and
private lands, in accordance with the terms and conditions of a binding
wetland restoration or creation agreement between the landowner and the
U.S. Fish and Wildlife Service or the Natural Resources Conservation
Service (NRCS) or voluntary wetland restoration, enhancement, and
creation actions documented by the NRCS pursuant to NRCS regulations;
or (ii) on any Federal land; or (iii) on reclaimed surface coal mined
lands, in accordance with a Surface Mining Control and Reclamation Act
permit issued by the Office of Surface Mining or the applicable state
agency. (The future reversion does not apply to wetlands created,
restored or enhanced as mitigation for the mining impacts, nor
naturally due to hydrologic or topographic features, nor for a
mitigation bank.); or (iv) on any public or private land, provided the
permittee notifies the District Engineer in accordance with the
``Notification'' general condition.
Such activities include, but are not limited to: Installation and
maintenance of small water control structures, dikes, and berms;
backfilling of existing drainage ditches; removal of existing drainage
structures; construction of small nesting islands; plowing or discing
for seed bed preparation; and other related activities. This NWP
applies to restoration projects that serve the purpose of restoring
``natural'' wetland hydrology, vegetation, and function to altered and
degraded non-tidal wetlands and ``natural'' functions of riparian
areas. This NWP does not authorize the conversion of natural wetlands
to another aquatic use, such as creation of waterfowl impoundments
where a forested wetland previously existed.
Reversion: For restoration, enhancement and creation projects
conducted under paragraghs (ii) and (iv), 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 at that time would be required for any reversion. For
restoration, enhancement and creation projects conducted under
paragraghs (i) and (iii), 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 creation activities) within five years
after expiration of a limited term wetland restoration or creation
agreement or permit, even if the discharge occurs after this NWP
expires. The five year reversion limit does not apply to agreements
without time limits reached under paragraph (i). 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.
Prior to any reversion activity the permittee or the appropriate
Federal or state agency must notify the District Engineer and include
the documentation of the prior condition. Once an area has reverted
back to its prior physical condition, it will be subject to whatever
the Corps regulatory requirements will be at that future date.
(Sections 10 and 404)
28. Modifications of Existing Marinas: Reconfiguration of existing
docking facilities within an authorized marina area. No dredging,
additional slips or dock spaces, or expansion of any kind within waters
of the United States is authorized by this NWP. (Section 10)
29. Single-Family Housing: Discharges of dredged or fill material
into non-tidal waters of the United States, including non-tidal
wetlands for the construction or expansion of a single-family home and
attendant features (such as a garage, driveway, storage shed, and/or
septic field) for an individual permittee provided that the activity
meets all of the following criteria:
a. The discharge does not cause the loss of more than 1/2 acre of
non-tidal waters of the United States, including non-tidal wetlands;
b. The permittee notifies the District Engineer in accordance with
the ``Notification'' general condition;
c. The permittee has taken all practicable actions to minimize the
on-site and off-site impacts of the discharge. For example, the
location of the home may need to be adjusted on-site to avoid flooding
of adjacent property owners;
d. The discharge is part of a single and complete project;
furthermore, that for any subdivision created on or after November 22,
1991, the discharges authorized under this NWP may not exceed an
aggregate total loss of waters of the United States of 1/2 acre for the
entire subdivision;
[[Page 65918]]
e. An individual may use this NWP only for a single-family home for
a personal residence;
f. This NWP may be used only once per parcel;
g. This NWP may not be used in conjunction with NWP 14, NWP 18, or
NWP 26, for any parcel; and,
h. Sufficient vegetated buffers must be maintained adjacent to all
open water bodies, streams, etc., to preclude water quality degradation
due to erosion and sedimentation.
For the purposes of this NWP, the acreage of loss of waters of the
United States includes the filled area previously permitted, the
proposed filled area, and any other waters of the United States that
are adversely affected by flooding, excavation, or drainage as a result
of the project. Whenever any other NWP is used in conjunction with this
NWP, the total acreage of impacts to waters of the United States of all
NWPs combined, can not exceed 1/2 acres. This NWP authorizes activities
only by individuals; for this purpose, the term ``individual'' refers
to a natural person and/or a married couple, but does not include a
corporation, partnership, or similar entity. For the purposes of this
NWP, a parcel of land is defined as ``the entire contiguous quantity of
land in possession of, recorded as property of, or owned (in any form
of ownership, including land owned as a partner, corporation, joint
tenant, etc.) by the same individual (and/or that individual's spouse),
and comprises not only the area of wetlands sought to be filled, but
also all land contiguous to those wetlands, owned by the individual
(and/or that individual's spouse) in any form of ownership''. (Sections
10 and 404)
30. Moist Soil Management for Wildlife: Discharges of dredged or
fill material and maintenance activities that are associated with moist
soil management for wildlife performed on non-tidal Federally-owned or
managed and State-owned or managed property, 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: The repair,
maintenance or replacement of existing water control structures; the
repair or maintenance of dikes; and plowing or discing to impede
succession, prepare seed beds, or establish fire breaks. Sufficient
vegetated buffers must be maintained adjacent to all open water bodies,
streams, etc., to preclude water quality degradation due to erosion and
sedimentation. This NWP does not authorize the construction of new
dikes, roads, water control structures, etc. associated with the
management areas. This NWP does not authorize converting wetlands to
uplands, impoundments or other open water bodies. (Section 404)
31. Maintenance of Existing Flood Control Facilities: Discharges of
dredged or fill material for the maintenance of existing flood control
facilities, including debris basins, retention/detention basins, and
channels that were (i) previously authorized by the Corps by individual
permit, general permit, or by 33 CFR 330.3 and constructed or (ii)
constructed by the Corps and transferred to a local sponsor for
operation and maintenance. The maintenance is limited to that approved
in a maintenance baseline determination made by the district engineer
(DE). The prospective permittee will provide the DE with sufficient
evidence for the DE to determine the approved and constructed baseline.
Subsequent to the determination of the maintenance baseline and prior
to any maintenance work, the permittee must notify the DE in accordance
with the ``Notification'' general condition.
All dredged material must be placed in an upland site or a
currently authorized disposal site in waters of the United States, and
proper siltation controls must be used. This NWP does not authorize the
removal of sediment and associated vegetation from natural water
courses. (Activities that involve only the cutting and removing of
vegetation above the ground, e.g., mowing, rotary cutting, and
chainsawing, where the activity neither substantially disturbs the root
system nor involves mechanized pushing, dragging, or other similar
activities that redeposit excavated soil material, does not require a
Section 404 permit in accordance with 33 CFR 323.2(d)(2)(ii)). Only
constructed channels within stretches of natural rivers that have been
previously authorized as part of a flood control facility could be
authorized for maintenance under this NWP.
Maintenance Baseline: Upon receipt of sufficient evidence, the DE
will determine the maintenance baseline. The maintenance baseline is
the existing flood control project that the DE has determined can be
maintained under this NWP, subject to any case-specific conditions
required by the DE. In determining the maintenance baseline, the DE
will consider the following factors: The approved facility, the actual
constructed facility, the Corps constructed project that was
transferred, the maintenance history, if the facility has been
functioning at a reduced capacity and for how long, present vs.
original flood control needs, and if sensitive/unique functions and
values may be adversely affected. Revocation or modification of the
final determination of the maintenance baseline can only be done in
accordance with 33 CFR 330.5. This NWP can not be used until the DE
determines the maintenance baseline and the need for mitigation and any
regional or activity-specific conditions. The maintenance baseline will
only be determined once and will remain valid for any subsequent
reissuance of this NWP. However, if the project is effectively
abandoned or reduced due to lack of proper maintenance, a new
determination of a maintenance baseline would be required before this
NWP could be used for subsequent maintenance.
Mitigation: In determining the need for mitigation, the DE will
consider the following factors: Any original mitigation required, the
current environmental setting, and any adverse effects of the
maintenance project that were not mitigated in the original
construction. The DE will not delay needed maintenance for completion
of any required mitigation, provided that the DE and the applicant
establish a schedule for the identification, approval, development,
construction and completion of such required mitigation. (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
(CWA) 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 CWA, provided that:
a. The unauthorized activity affected no more than 5 acres of
nontidal wetlands or 1 acre of tidal wetlands;
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 nationwide permit;
and
c. The District Engineer issues a verification letter authorizing
the activity subject to the terms and conditions of this nationwide
permit 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
[[Page 65919]]
enforcement action brought by the United States under section 404 of
the CWA and/or section 10 of the Rivers and Harbors Act of 1899.
For both (i) or (ii) above, 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 or fails to complete the work by the specified
completion date. 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. Prior
to 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, or for other
construction activities not subject to the Corps or U.S. Coast Guard
regulations. Appropriate measures must be taken to maintain near normal
downstream flows and to minimize flooding. Fill must be of materials,
and placed in a manner, that will not be eroded by expected high flows.
The use of dredged material may be allowed if it is determined by the
District Engineer that it will not cause more than minimal adverse
effects on aquatic resources. Temporary fill must be entirely removed
to upland areas, or dredged material returned to its original location,
following completion of the construction activity, and the affected
areas must be restored to the pre-project conditions. Cofferdams cannot
be used to dewater wetlands or other aquatic areas so as to change
their use. Structures left in place after cofferdams are removed
require a section 10 permit if located in navigable waters of the
United States. (See 33 CFR part 322). The permittee must notify the
District Engineer in accordance with the ``Notification'' general
condition. The notification must also include a restoration plan of
reasonable measures to avoid and minimize adverse effects to aquatic
resources. The District Engineer will add special conditions, where
necessary, to ensure that adverse environmental effects are minimal.
Such conditions may include: Limiting the temporary work to the minimum
necessary; requiring seasonal restrictions; modifying the restoration
plan; and requiring alternative construction methods (e.g.,
construction mats in wetlands where practicable.). (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
provided that the activity meets all of the following criteria:
a. The cumulative total acreage of disturbance per cranberry
production operation, including but not limited to, filling, flooding,
ditching, or clearing, does not exceed 10 acres of waters of the United
States, including wetlands;
b. The permittee notifies the District Engineer in accordance with
the ``Notification'' general condition. The notification must include a
delineation of affected special aquatic sites, including wetlands; and,
c. The activity does 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. (Section 404)
35. Maintenance Dredging of Existing Basins: Excavation and removal
of accumulated sediment for maintenance of existing marina basins,
access channels to marina basins or boat slips, and boat slips to
previously authorized depths or controlling depths for ingress/egress,
whichever is less, provided the dredged material is disposed of at an
upland site and proper siltation controls are used. (Section 10)
36. Boat Ramps: Activities required for the construction of boat
ramps provided:
a. The discharge into waters of the United States does not exceed
50 cubic yards of concrete, rock, crushed stone or gravel into forms,
or placement of pre-cast concrete planks or slabs. (Unsuitable material
that causes unacceptable chemical pollution or is structurally unstable
is not authorized);
b. The boat ramp does not exceed 20 feet in width;
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.
Dredging to provide access to the boat ramp may be authorized by
another NWP, regional general permit, or individual permit pursuant to
section 10 if located in navigable waters of the United States.
(Sections 10 and 404)
37. Emergency Watershed Protection and Rehabilitation: Work done by
or funded by the Natural Resources Conservation Service qualifying as
an ``exigency'' situation (requiring immediate action) under its
Emergency Watershed Protection Program (7 CFR part 624) and work done
or funded by the Forest Service under its Burned-Area Emergency
Rehabilitation Handbook (FSH 509.13) provided the District Engineer is
notified in accordance with the ``Notification'' general condition.
(Also see 33 CFR 330.1(e)). (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 provided the permittee notifies the District Engineer in
accordance with the ``Notification'' general condition. For discharges
in special aquatic sites, including wetlands, the notification must
also include a delineation of affected special aquatic sites, including
wetlands. 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. Activities
undertaken entirely on a 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.
(Sections 10 and 404)
39. Reserved.
40. Farm Buildings: Discharges of dredged or fill material into
jurisdictional wetlands (but not including prairie potholes, playa
lakes, or vernal pools) that were in agricultural crop production prior
to December 23, 1985, i.e., farmed wetlands, for foundations and
building pads for farm buildings. The discharge will be limited to the
minimum necessary but will in no case exceed 1 acre (see the
``Mitigation'' Section 404 only condition). The permittee must notify
the District Engineer in accordance with the ``Notification'' general
condition for any farm building within 500 linear feet of any flowing
water. (Section 404)
[[Page 65920]]
C. Nationwide Permit Conditions
General Conditions
The following general conditions must be followed in order for any
authorization by a NWP to be valid:
1. Navigation: No activity may cause more than a minimal adverse
effect on navigation.
2. Proper Maintenance: Any structure or fill authorized shall be
properly maintained, including maintenance to ensure public safety.
3. Erosion and Siltation Controls: Appropriate erosion and
siltation 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.
4. Aquatic Life Movements: No activity may substantially disrupt
the movement of those species of aquatic life indigenous to the
waterbody, including those species which normally migrate through the
area, unless the activity's primary purpose is to impound water.
5. Equipment: Heavy equipment working in wetlands must be placed on
mats, or other measures must be taken to minimize soil disturbance.
6. Regional and Case-by-Case Conditions: The activity must comply
with any regional conditions which 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 or tribe in its section 401 water
quality certification.
7. 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 effect 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.)
8. 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.
9. Water Quality Certification: In certain states, an individual
Section 401 water quality certification must be obtained or waived (see
33 CFR 330.4(c)).
10. Coastal Zone Management: In certain states, an individual state
coastal zone management consistency concurrence must be obtained or
waived (see Section 330.4(d)).
11. 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, or which is likely
to destroy or adversely modify the critical habitat of such species.
Non-federal permittees shall notify the District Engineer if any listed
species or critical habitat might be affected or is in the vicinity of
the project, and shall not begin work on the activity until notified by
the District Engineer that the requirements of the Endangered Species
Act have been satisfied and that the activity is authorized.
(b) Authorization of an activity by a nationwide permit does not
authorize the ``take'' of a threatened or endangered species as defined
under the Federal Endangered Species Act. 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. Fish and
Wildlife Service or the National Marine Fisheries Service, both lethal
and non-lethal ``takes'' of protected species are in violation of the
Endangered Species Act. Information on the location of threatened and
endangered species and their critical habitat can be obtained directly
from the offices of the U.S. Fish and Wildlife Service and National
Marine Fisheries Service or their world wide web pages at http://
www.fws.gov/r9endspp/endspp.html and http://
kingfish.spp.mnfs.gov/tmcintyr/prot_res.html#ES and Recovery,
respectively.
12. Historic Properties: No activity which may affect historic
properties listed, or eligible for listing, in the National Register of
Historic Places is authorized, until the DE has complied with the
provisions of 33 CFR part 325, appendix C. The prospective permittee
must notify the District Engineer if the authorized activity may affect
any historic properties listed, determined to be eligible, or which the
prospective permittee has reason to believe may be eligible for listing
on the National Register of Historic Places, and shall not begin the
activity until notified by the District Engineer that the requirements
of the National Historic Preservation Act have been satisfied and that
the activity is authorized. Information on the location and existence
of historic resources can be obtained from the State Historic
Preservation Office and the National Register of Historic Places (see
33 CFR 330.4(g)).
13. Notification:
(a) Timing: Where required by the terms of the NWP, the prospective
permittee must notify the District Engineer with a Pre-Construction
Notification (PCN) as early as possible and shall not begin the
activity:
(1) Until notified 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 notified by the District or Division Engineer that an
individual permit is required; or
(3) Unless 30 days (or 45 days for NWP 26 only) have passed from
the District Engineer's receipt of the notification and the prospective
permittee has not received notice from the District or Division
Engineer. 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 Notification: The notification 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) Brief 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; and
(4) For NWPs 14, 18, 21, 26, 29, 34, and 38, the PCN must also
include a delineation of affected special aquatic sites, including
wetlands (see paragraph 13(f));
(5) For NWP 21--Surface Coal Mining Activities, the PCN must
include an OSM or state approved mitigation plan.
(6) For NWP 29--Single-Family Housing, the PCN must also include:
(i) Any past use of this NWP by the individual permittee and/or the
permitee's spouse;
(ii) A statement that the single-family housing activity is for a
personal residence of the permittee;
(iii) A description of the entire parcel, including its size, and a
delineation of wetlands. For the purpose of this NWP, parcels of land
measuring 0.5 acre or less will not require a formal on-site
delineation. However, the applicant
[[Page 65921]]
shall provide an indication of where the wetlands are and the amount of
wetlands that exists on the property. For parcels greater than 0.5 acre
in size, a formal wetland delineation must be prepared in accordance
with the current method required by the Corps. (See paragraph 13(f));
(iv) A written description of all land (including, if available,
legal descriptions) owned by the prospective permittee and/or the
prospective permittee's spouse, within a one mile radius of the parcel,
in any form of ownership (including any land owned as a partner,
corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety)
and any land on which a purchase and sale agreement or other contract
for sale or purchase has been executed;
(7) For NWP 31--Maintenance of Existing Flood Control Projects, the
prospective permittee must either notify the District Engineer with a
Pre-Construction Notification (PCN) prior to each maintenance activity
or submit a five year (or less) maintenance plan. In addition, the PCN
must include all of the following:
(i) Sufficient baseline information so as to identify the approved
channel depths and configurations and existing facilities. Minor
deviations are authorized, provided that the approved flood control
protection or drainage is not increased;
(ii) A delineation of any affected special aquatic sites, including
wetlands; and,
(iii) Location of the dredged material disposal site.
(8) For NWP 33--Temporary Construction, Access, and Dewatering, the
PCN must also include a restoration plan of reasonable measures to
avoid and minimize adverse effects to aquatic resources.
(c) Form of Notification: The standard individual permit
application form (Form ENG 4345) may be used as the notification but
must clearly indicate that it is a PCN and must include all of the
information required in (b) (1)-(7) of General Condition 13. A letter
may also be used.
(d) District Engineer's Decision: In reviewing the pre-construction
notification 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. The prospective
permittee may, optionally, submit a proposed mitigation plan with the
pre-construction notification to expedite the process and the District
Engineer will consider any optional mitigation the applicant has
included in the proposal in determining whether the net adverse
environmental effects of the proposed work are minimal. If the District
Engineer determines that the activity complies with the terms and
conditions of the NWP and that the adverse effects are minimal, the
District Engineer will notify the permittee and include any conditions
the DE deems necessary.
Any mitigation proposal must be approved by the District Engineer
prior to commencing work. If the prospective permittee elects to submit
a mitigation plan, the District Engineer will expeditiously review the
proposed mitigation plan, but will not commence a second 30-day (or 45-
day for NWP 26) notification procedure. If the net adverse effects of
the project (with the mitigation proposal) are determined by the
District Engineer to be minimal, the District Engineer will provide a
timely written response to the applicant stating that the project can
proceed under the terms and conditions of the nationwide permit.
If the District Engineer determines that the adverse effects of the
proposed work are more than minimal, then he 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 submitting a
mitigation proposal that would reduce the adverse effects to the
minimal level; or (3) that the project is authorized under the NWP with
specific modifications or conditions.
(e) Agency Coordination: The District Engineer will consider any
comments from Federal and State agencies concerning the proposed
activity's compliance with the terms and conditions of the NWPs and the
need for mitigation to reduce the project's adverse environmental
effects to a minimal level.
(i) For NWP 14, 21, 26 (between 1 and 3 acres of impact) , 29, 33,
37, and 38. The District Engineer will, upon receipt of a notification,
provide immediately, e.g., facsimile transmission, overnight mail or
other expeditious manner, a copy to the appropriate offices of the Fish
and Wildlife Service, State natural resource or water quality agency,
EPA, State Historic Preservation Officer (SHPO), and, if appropriate,
the National Marine Fisheries Service. With the exception of NWP 37,
these agencies will then have 5 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 10 calendar days (16 calendar days for NWP 26 PCNs) before
making a decision on the notification. The District Engineer will fully
consider agency comments received within the specified time frame, but
will provide no response to the resource agency. The District Engineer
will indicate in the administrative record associated with each
notification that the resource agencies' concerns were considered.
Applicants are encouraged to provide the Corps multiple copies of
notifications to expedite agency notification.
(ii) Optional Agency Coordination. For NWPs 5, 7, 12, 13, 17, 18,
27, 31, and 34, where a Regional Administrator of EPA, a Regional
Director of USFWS, or a Regional Director of NMFS has formally
requested general notification from the District Engineer for the
activities covered by any of these NWPs, the Corps will provide the
requesting agency with notification on the particular NWPs. However,
where the agencies have a record of not generally submitting
substantive comments on activities covered by any of these NWPs, the
Corps district may discontinue providing notification to those regional
agency offices. The District Engineer will coordinate with the
resources agencies to identify which activities involving a PCN that
the agencies will provide substantive comments to the Corps. The
District Engineer may also request comments from the agencies on a case
by case basis when the District Engineer determines that such comments
would assist the Corps in reaching a decision whether effects are more
than minimal either individually or cumulatively.
(iii) Optional Agency Coordination, 401 Denial. For NWP 26 only,
where the state has denied its 401 water quality certification for
activities with less than 1 acre of wetland impact, the EPA regional
administrator may request agency coordination of PCNs between \1/3\ and
1 acre. The request may only include acreage limitations within the \1/
3\ to 1 acre range for which the state has denied water quality
certification. In cases where the EPA has requested coordination of
projects as described here, the Corps will forward the PCN to EPA only.
The PCN will then be forwarded to the Fish and Wildlife Service and the
National Marine Fisheries Service by EPA under agreements among those
agencies. Any agency receiving the PCN will be bound
[[Page 65922]]
by the EPA timeframes for providing comments to the Corps.
(f) Wetlands Delineations: Wetland delineations must be prepared in
accordance with the current method required by the Corps. For NWP 29
see paragraph (b)(6)(iii) for parcels less than 0.5 acres in size. The
permittee may ask the Corps to delineate the special aquatic site.
There may be some delay if the Corps does the delineation. Furthermore,
the 30-day period (45 days for NWP 26) will not start until the wetland
delineation has been completed and submitted to the Corps, where
appropriate.
(g) Mitigation: Factors that the District Engineer will consider
when determining the acceptability of appropriate and practicable
mitigation include, but are not limited to:
(i) To be practicable, the mitigation must be available and capable
of being done considering costs, existing technology, and logistics in
light of the overall project purposes;
(ii) To the extent appropriate, permittees should consider
mitigation banking and other forms of mitigation including
contributions to wetland trust funds, ``in lieu fees'' to organizations
such as The Nature Conservancy, state or county natural resource
management agencies, where such fees contribute to the restoration,
creation, replacement, enhancement, or preservation of wetlands.
Furthermore, examples of mitigation that may be appropriate and
practicable include but are not limited to: Reducing the size of the
project; establishing wetland or upland buffer zones to protect aquatic
resource values; and replacing the loss of aquatic resource values by
creating, restoring, and enhancing similar functions and values. In
addition, mitigation must address wetland impacts, such as functions
and values, and cannot be simply used to offset the acreage of wetland
losses that would occur in order to meet the acreage limits of some of
the NWPs (e.g., for NWP 26, 5 acres of wetlands cannot be created to
change a 6-acre loss of wetlands to a 1 acre loss; however, 2 created
acres can be used to reduce the impacts of a 3-acre loss.).
14. Compliance Certification: Every permittee who has received a
Nationwide permit verification from the Corps will submit a signed
certification regarding the completed work and any required mitigation.
The certification will be forwarded by the Corps with the authorization
letter and will include: a. A statement that the authorized work was
done in accordance with the Corps authorization, including any general
or specific conditions; b. A statement that any required mitigation was
completed in accordance with the permit conditions; c. The signature of
the permittee certifying the completion of the work and mitigation.
15. Multiple Use of Nationwide Permits: In any case where any NWP
number 12 through 40 is combined with any other NWP number 12 through
40, as part of a single and complete project, the permittee must notify
the District Engineer in accordance with paragraphs a, b, and c on the
``Notification'' General Condition number 13. Any NWP number 1 through
11 may be combined with any other NWP without notification to the
Corps, unless notification is otherwise required by the terms of the
NWPs. As provided at 33 CFR 330.6(c) two or more different NWPs can be
combined to authorize a single and complete project. However, the same
NWP cannot be used more than once for a single and complete project.
Section 404 Only Conditions
In addition to the General Conditions, the following conditions
apply only to activities that involve the discharge of dredged or fill
material into waters of the U.S., and must be followed in order for
authorization by the NWPs to be valid:
1. Water Supply Intakes: No discharge of dredged or fill material
may occur in the proximity of a public water supply intake except where
the discharge is for repair of the public water supply intake
structures or adjacent bank stabilization.
2. Shellfish Production: No discharge of dredged or fill material
may occur in areas of concentrated shellfish production, unless the
discharge is directly related to a shellfish harvesting activity
authorized by NWP 4.
3. Suitable Material: No discharge of dredged or fill material may
consist of unsuitable material (e.g., trash, debris, car bodies,
asphalt, etc.,) and material discharged must be free from toxic
pollutants in toxic amounts (see section 307 of the Clean Water Act).
4. Mitigation: Discharges of dredged or fill material into waters
of the United States must be minimized or avoided to the maximum extent
practicable at the project site (i.e., on-site), unless the District
Engineer approves a compensation plan that the District Engineer
determines is more beneficial to the environment than on-site
minimization or avoidance measures.
5. Spawning Areas: Discharges in spawning areas during spawning
seasons must be avoided to the maximum extent practicable.
6. Obstruction of High Flows: To the maximum extent practicable,
discharges must not permanently restrict or impede the passage of
normal or expected high flows or cause the relocation of the water
(unless the primary purpose of the fill is to impound waters).
7. Adverse Effects From Impoundments: If the discharge creates an
impoundment of water, adverse effects on the aquatic system caused by
the accelerated passage of water and/or the restriction of its flow
shall be minimized to the maximum extent practicable.
8. Waterfowl Breeding Areas: Discharges into breeding areas for
migratory waterfowl must be avoided to the maximum extent practicable.
9. Removal of Temporary Fills: Any temporary fills must be removed
in their entirety and the affected areas returned to their preexisting
elevation.
[FR Doc. 96-31645 Filed 12-12-96; 8:45 am]
BILLING CODE 3710-92-P