[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]]

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Part VII





Department of Defense





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Department of the Army



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Corps of Engineers



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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.

-----------------------------------------------------------------------

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