[Federal Register Volume 64, Number 139 (Wednesday, July 21, 1999)]
[Notices]
[Pages 39252-39371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18292]



[[Page 39251]]

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Part III





Department of Defense





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Department of the Army, Corps of Engineers



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Proposal To Issue and Modify Nationwide Permits; Notice

  Federal Register / Vol. 64, No. 139 / Wednesday, July 21, 1999 / 
Notices  

[[Page 39252]]



DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Proposal To Issue and Modify Nationwide Permits; Notice

AGENCY: Army Corps of Engineers, DoD.

ACTION: Notice of intent and request for comments.

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SUMMARY: To improve protection of the aquatic environment, the Corps of 
Engineers is proposing to issue 5 new Nationwide Permits (NWPs) and 
modify 6 existing NWPs to replace NWP 26 when it expires. The Corps is 
also proposing to modify 9 NWP general conditions and add three new 
general conditions. These general conditions will apply to the proposed 
new and modified NWPs, as well as the NWPs issued on December 13, 1996, 
when the new and modified NWPs become effective. The proposed new NWPs 
are activity-specific and authorize activities in all non-tidal waters 
of the United States, except for non-tidal wetlands adjacent to tidal 
waters. These proposed new and modified NWPs will allow Corps districts 
to enhance protection of the aquatic environment, by utilizing the 
Corps limited resources to review proposed projects, based on the 
degree of adverse effects on the aquatic environment. The Corps will 
spend more time on projects with the potential for more environmental 
damage and less time on projects with minimal adverse effects on the 
aquatic environment. The Corps has developed, with public and Federal, 
Tribal, and State agency comments, terms and conditions to ensure that 
the adverse effects of authorized activities are minimal. A key element 
of this process by the Corps to develop NWPs with minimal adverse 
effects on the aquatic environment is regional conditioning developed 
by district and division engineers. Regional conditioning of NWPs is 
critical to ensure that the NWPs help the Corps achieve these goals. 
Regional conditioning of NWPs is necessary to account for differences 
in aquatic resource functions and values across the country. Regional 
conditions will be added to the proposed new and modified NWPs by 
division engineers to ensure that the NWPs authorize only those 
activities that have minimal adverse effects on the aquatic 
environment, individually or cumulatively. Concurrent with this Federal 
Register notice, each Corps district will issue a public notice to 
solicit comments on their final draft regional conditions for the 
proposed new and modified NWPs.
    The purpose of this Federal Register notice is to solicit comments 
on the final draft of the proposed new and modified NWPs that will 
replace NWP 26, as well as the NWP general conditions and definitions. 
Concurrent with this Federal Register notice, each Corps district will 
publish a public notice to solicit comments on their final draft 
regional conditions for the new and modified NWPs. The comment period 
for these district public notices will be 45 days. After reviewing the 
comments received in response to this Federal Register notice, the 
Corps will issue another Federal Register notice announcing the 
issuance of the new and modified NWPs to start the final 60 days for 
the State and Tribal Section 401 Water Quality Certification and 
Coastal Zone Management Act consistency determination decisions. After 
this 60-day period, the new and modified NWPs will become effective as 
NWP 26 expires.
    To improve the implementation of the NWP program, the Corps has 
combined the NWP general conditions and Section 404 Only conditions 
into one set of general conditions. The Corps will issue a set of 
definitions for use with all of the NWPs to provide more consistency in 
the application of terms commonly used in the NWP program.
    Although NWP 26 was scheduled to expire on September 15, 1999, the 
Corps has extended the expiration date of NWP 26 to December 30, 1999, 
or until the effective date of the new and modified NWPs, whichever 
comes first.

DATES: Comments on the proposed new and modified NWPs must be received 
by September 7, 1999.

ADDRESSES: HQUSACE, ATTN: CECW-OR, 20 Massachusetts Avenue, NW, 
Washington, DC 20314-1000. Submit electronic comments to 
[email protected]. See SUPPLEMENTARY INFORMATION for file 
formats and other information about electronic filing of comments.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson or Mr. Sam Collinson 
at (202) 761-0199 or access the Corps of Engineers Regulatory Home Page 
at: http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

    On December 13, 1996, the Corps of Engineers (Corps) reissued NWP 
26 for a period of two years and announced its intention to replace NWP 
26 with activity-specific NWPs prior to the expiration date of NWP 26. 
In the July 1, 1998, issue of the Federal Register (63 FR 36040--
36078), the Corps published its proposal to replace NWP 26 by issuing 6 
new NWPs, modifying 6 existing NWPs, modifying 6 NWP general 
conditions, and adding one new NWP general condition. NWP 26 authorizes 
discharges of dredged or fill material into headwaters and isolated 
waters, provided the discharge does not result in the loss of greater 
than 3 acres of waters of the United States or 500 linear feet of 
stream bed. Isolated waters are non-tidal waters of the United States 
that are not part of a surface tributary system to interstate or 
navigable waters of the United States and are not adjacent to 
interstate or navigable waters. Headwaters are non-tidal streams, 
lakes, and impoundments that are part of a surface tributary system to 
interstate or navigable waters of the United States with an average 
annual flow of less than 5 cubic feet per second.
    The new and modified NWPs proposed in the July 1, 1998, Federal 
Register notice could authorize many of the same activities with 
minimal adverse effects on the aquatic environment that are currently 
authorized by NWP 26. Most of the proposed new and modified NWPs 
authorize activities in all non-tidal waters of the United States, 
excluding non-tidal wetlands adjacent to tidal waters. These proposed 
NWPs will ensure that the NWP program is based on the types of 
authorized activities. Regional conditioning of these proposed NWPs 
will limit or prohibit their use in high quality waters.
    The terms and limits of the proposed new and modified NWPs are 
intended to authorize activities that typically result in minimal 
adverse effects on the aquatic environment. For these proposed NWPs, 
the Corps has also established preconstruction notification (PCN) 
thresholds to ensure that any activity that may potentially have more 
than minimal adverse effects will be reviewed by district engineers on 
a case-by-case basis. Most of the proposed NWPs require submission of a 
PCN for losses of greater than \1/4\ acre of waters of the United 
States. Most of the proposed NWPs require PCNs for filling open waters, 
including streams, and for certain proposed NWPs a PCN may be required 
for filling more than 500 linear feet of stream bed. The PCN 
requirements for filling stream beds may differ, depending on whether a 
perennial, intermittent, or ephemeral stream bed is filled. For most of 
these NWPs, there is no PCN requirement for filling ephemeral stream 
beds. Excavation of stream beds may require a PCN if the excavation 
activity results

[[Page 39253]]

in a discharge of dredged material, including redeposit other than 
incidental fallback, into waters of the United States. Regional 
conditions may be added to NWPs by district or division engineers to 
lower notification thresholds or require notification for all 
activities authorized by an NWP in order to ensure no more than minimal 
adverse effects on the aquatic environment.
    The 5 new NWPs proposed in this Federal Register notice will expire 
5 years from their effective date. The proposed 6 modified NWPs (i.e., 
NWPs 3, 7, 12, 14, 27, and 40) will expire on February 11, 2002, with 
the other NWPs that were issued, reissued, or modified in the December 
13, 1996, Federal Register notice (61 FR 65874-65922). The proposed new 
and modified NWPs are scheduled to become effective on December 21, 
1999, and we have extended the expiration date of NWP 26 to December 
30, 1999, or the effective date of the new and modified NWPs, whichever 
occurs first. The extension of the expiration date for NWP 26 is 
discussed in more detail below.
    Compensatory mitigation will be required when the District Engineer 
determines such mitigation is necessary to ensure that the activities 
authorized by NWPs will result only in minimal adverse effects on the 
aquatic environment. For a particular project, the District Engineer 
may determine that compensatory mitigation is not necessary, because 
the activity will result in no more than minimal adverse effects on the 
aquatic environment without compensatory mitigation. Some of the NWPs 
contain requirements for compensatory mitigation for certain 
activities, particularly for activities that require notification to 
the District Engineer. Compensatory mitigation will be used to support 
the goal of no net loss of aquatic resource functions and values by 
offsetting impacts to the aquatic environment. Compensatory mitigation 
can be accomplished through the restoration, creation, enhancement, 
and/or in exceptional circumstances, preservation of aquatic resources 
either by individual projects constructed by the permittee or the use 
of mitigation banks, in lieu fee programs, or other consolidated 
mitigation efforts. For the new and modified NWPs, an important 
component of compensatory mitigation is the establishment and 
maintenance of vegetated buffers adjacent to open and flowing waters. 
Vegetated buffers adjacent to open waters or streams may consist of 
either uplands or wetlands and help protect and enhance local water 
quality and aquatic habitat features in the waterbody. Vegetated 
buffers can be established by maintaining an existing vegetated area 
adjacent to open or flowing waters or by planting native trees, shrubs, 
and herbaceous perennials in areas with little existing perennial 
native vegetation. The benefits and requirements for vegetated buffers 
are discussed in further detail below.
    During the review of PCNs, district and division engineers can 
exercise discretionary authority and require an individual permit for 
those activities that result in more than minimal adverse effects on 
the aquatic environment. District engineers can also place conditions, 
including compensatory mitigation requirements, on NWP authorizations 
on a case-by-case basis to ensure that the activity authorized by the 
NWP results only in minimal adverse effects on the aquatic environment.
    For these NWPs, we are placing greater emphasis on regional 
conditioning to ensure that the NWPs authorize only activities with 
minimal adverse effects on the aquatic environment. Regional conditions 
allow the NWP program to take into account regional differences in 
aquatic resource functions and values across the country. Each district 
will identify areas of high value waters that require lower PCN 
thresholds or notification for all activities in those waterbodies to 
ensure that the NWPs authorize only activities with minimal adverse 
effects on the aquatic environment. Division engineers can also suspend 
or revoke certain NWPs in high value waters if the use of those NWPs 
would result in more than minimal adverse effects on the aquatic 
environment, individually or cumulatively. The regional conditioning 
process is discussed in more detail below.
    The Corps believes that the new and modified NWPs, with regional 
conditions, will increase the overall protection of the aquatic 
environment when compared to the existing NWP program. However, the 
scope of applicable waters for the proposed NWPs and the proposed NWP 
General Condition 27, which prohibits the use of certain NWPs to 
authorize permanent, above-grade fills in waters of the United States 
within the 100-year floodplain, will substantially increase the Corps 
individual permit workload. The proposed new and modified NWPs, in 
addition to the existing NWPs, will allow the Corps to efficiently 
authorize activities with minimal adverse effects on the aquatic 
environment and focus its efforts on protecting high value aquatic 
resources. NWPs will be used to authorize most activities in low value 
waters. Higher value waters, including wetlands, will receive 
additional protection through regional conditioning of the NWPs, 
special conditions on specific NWP authorizations, and case-specific 
discretionary authority to require an individual permit when necessary. 
Regional conditions will be required by each district to restrict or 
prohibit the use of NWPs in high value waters. The Corps will require 
compensatory mitigation, where appropriate, to ensure that the 
individual or cumulative adverse effects on the aquatic environment 
authorized by these NWPs are no more than minimal. NWPs may also be 
suspended or revoked in some high value waters if the use of those NWPs 
would result in more than minimal adverse effects on the aquatic 
environment.
    The proposed new and modified NWPs also reflect the Corps increased 
focus on open or flowing waters. One of the goals of the proposed new 
and modified NWPs is to improve protection of open waters and streams, 
especially water quality and aquatic habitat, while continuing to fully 
protect wetlands. District engineers will not place less consideration 
on adverse effects to other types of waters for the sake of wetlands, 
especially low value wetlands. The establishment and maintenance of 
vegetated buffers adjacent to open waters and streams will protect, 
restore, and enhance water quality and aquatic habitat. Vegetated 
buffers can be used to provide out-of-kind compensatory mitigation for 
wetland impacts where the District Engineer determines that such 
mitigation for wetland impacts is the best, ecologically, for the 
aquatic environment.
    In addition to regional conditioning of the proposed new and 
modified NWPs, additional substantial protection of the aquatic 
environment will result from the modification of two NWP general 
conditions. We are proposing to modify General Condition 9, Water 
Quality, to require that postconstruction conditions do not result in 
more than minimal degradation of downstream water quality. An important 
component of this general condition is the requirement that, for 
certain NWPs, the permittee implement a water quality management plan 
to protect water quality. The water quality management plan may consist 
of stormwater management facilities or vegetated buffers adjacent to 
open or flowing waters or wetlands. It is not our intent to replace 
existing State or local water quality safeguards if those current 
safeguards are adequate. However, where the State or local program does 
not ensure that an authorized activity

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results in no more than minimal impacts on downstream water quality, 
the Corps will condition its NWP authorization to contain a water 
quality management plan. We are also proposing to modify former Section 
404 Only condition 6 (now designated as General Condition 21) to 
require that neither upstream nor downstream areas are subject to more 
than minimal flooding or dewatering after the project has been 
constructed and while the authorized activity is operated. General 
Condition 21 will help ensure that postconstruction effects on local 
surface water flows are minimal.
    On October 14, 1998, the Corps published a supplemental notice in 
the Federal Register (63 FR 55095-55098) requesting comments on 
additional proposed limitations for the NWP program, including the 
proposed new and modified NWPs. This Federal Register notice also 
announced the withdrawal of NWP B for master planned development 
activities from the July 1, 1998, proposal. The additional NWP 
limitations proposed in the October 14, 1998, Federal Register notice, 
include prohibiting the use of NWPs in certain designated critical 
resource waters, limiting the use of NWPs in impaired waters, and 
prohibiting the use of the new NWPs to authorize permanent, above-grade 
wetland fills in waters of the United States within the 100-year 
floodplain as mapped by the Federal Emergency Management Agency.
    As a result of the proposal published on October 14, 1998, we are 
proposing to add 3 new NWP general conditions. General Condition 25, 
Designated Critical Resource Waters, prohibits the use of certain NWPs 
to authorize discharges of dredged or fill material into designated 
critical resource waters, including wetlands adjacent to those waters. 
General Condition 25 also requires notification to the District 
Engineer for activities authorized by certain other NWPs in Designated 
Critical Resource Waters. General Condition 26, Impaired Waters, 
restricts the use of NWPs to authorize discharges of dredged or fill 
material into waters of the United States designated through the Clean 
Water Act Section 303(d) process as impaired due to nutrients, organic 
enrichment resulting in low dissolved oxygen concentration in the water 
column, sedimentation and siltation, habitat alteration, suspended 
solids, flow alteration, turbidity, or the loss of wetlands. General 
Condition 26 prohibits the use of NWPs to authorize discharges of 
dredged material resulting in the loss of greater than 1 acre of 
impaired waters of the United States, including wetlands adjacent to 
those impaired waters. For discharges of dredged material resulting in 
the loss of 1 acre or less of impaired waters of the United States, 
including adjacent wetlands, General Condition 26 requires the 
prospective permittee to notify the District Engineer and clearly 
demonstrate that the project will not result in further impairment of 
the listed water. General Condition 27, Fills Within the 100-year 
Floodplain, prohibits or restricts the use of certain NWPs to authorize 
permanent, above-grade fills in waters of the United States within the 
100-year floodplain.
    The October 14, 1998, Federal Register notice also announced the 
extension of the expiration date for NWP 26 to September 15, 1999. As a 
result of the additional time needed to finalize the proposed new and 
modified NWPs, the Corps has decided to extend the expiration date of 
NWP 26 to December 30, 1999, or the effective date of the new and 
modified NWPs, whichever comes first, to ensure that there is no gap 
between the effective date of the new and modified NWPs and the 
expiration date of NWP 26. Extending the expiration date of NWP 26 is 
necessary to ensure fairness to the regulated public by continuing to 
provide an NWP for activities in headwaters and isolated waters that 
have minimal adverse effects on the aquatic environment until the new 
and modified NWPs proposed in this Federal Register notice become 
effective. In response to the July 1, 1998, Federal Register notice, 
many commenters recommended that the Corps extend the expiration date 
of NWP 26 until the proposed new and modified NWPs are issued and 
become effective. NWP 26 can continue to be used to authorize 
activities in headwaters and isolated waters until its expiration date. 
A permittee who receives an NWP 26 authorization prior to the 
expiration date will have up to 12 months to complete the authorized 
activity, provided the permittee commences construction, or is under 
contract to commence construction, prior to the date NWP 26 expires 
(see 33 CFR Part 330.6(b)). This provision applies to all NWP 
authorizations unless discretionary authority has been exercised on a 
case-by-case basis to modify, suspend, or revoke the NWP authorization 
in accordance with 33 CFR Part 330.4(e) and 33 CFR Part 330.5 (c) or 
(d).
    The existing NWPs, with the exception of NWP 26, will remain in 
effect until they expire on February 11, 2002, unless otherwise 
modified, reissued, or revoked. Some of the proposed new and modified 
NWPs can be used with existing NWPs to authorize activities with 
minimal adverse effects on the aquatic environment. The use of more 
than one NWP to authorize a single and complete project is addressed in 
the proposed modification of General Condition 15, Use of Multiple 
Nationwide Permits.
    The October 14, 1998, Federal Register notice also discussed the 
need for additional opportunities for public comment on the new and 
modified NWPs and regional conditions. We have modified the process for 
additional opportunities for public comment to allow for more effective 
implementation of the proposed new and modified NWPs.
    The revised process for issuing the proposed new and modified NWPs 
is illustrated in Figure 1. Figure 1 does not contain the previous 
steps in the development of the proposed new and modified NWPs. The 
revised process starts with today's publication of the draft new and 
modified NWPs in the Federal Register for a 45-day comment period, with 
concurrent public notices issued by Corps district offices to solicit 
comments on draft Corps regional conditions for these NWPs. Comments 
addressing the draft new and modified NWPs, general conditions, and 
definitions should be sent to HQUSACE, at the address cited in the 
ADDRESSES section of this Federal Register notice. Comments addressing 
draft Corps regional conditions should be sent to the appropriate Corps 
district office. After this 45-day comment period, we will review the 
comments concerning the proposed NWPs that were received in response to 
this Federal Register notice, each district will review the comments 
concerning their final draft regional conditions that were received in 
response to their public notices, and Corps divisions will complete the 
supplemental decision documents for the Corps regional conditions. On 
October 22, 1999, the Corps will announce the issuance of the final new 
and modified NWPs in the Federal Register to begin the final 60-day 
State and Tribal Section 401 water quality certification and Coastal 
Zone Management Act (CZMA) consistency determination processes. 
Concurrent with the publication of the final new and modified NWPs in 
the Federal Register, each Corps district will publish a public notice 
announcing their final Corps regional conditions for the new and 
modified NWPs, so that the 401 and CZMA agencies can make their 
decisions based on the new and modified NWPs and the Corps regional 
conditions. After this 60-day 401/CZMA

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period, the new and modified NWPs and Corps regional conditions will 
become effective.

BILLING CODE 3710-92-P

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[GRAPHIC] [TIFF OMITTED] TN21JY99.000



BILLING CODE 3710-92-C

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    The proposed new and modified NWPs will help implement the 
President's Wetlands Plan, which was issued by the White House Office 
on Environmental Policy on August 23, 1993. A major goal of this plan 
is that Federal wetlands protection programs be fair, flexible, and 
effective. To achieve this goal, the Corps regulatory program must 
continue to provide effective protection of wetlands and other aquatic 
resources and avoid unnecessary impacts to private property, the 
regulated public, and the aquatic environment. The proposed new and 
modified NWPs will more clearly address individual and cumulative 
adverse effects on the aquatic environment, ensure that those adverse 
effects are minimal, address specific applicant group needs, and 
provide more predictability and consistency to the regulated public. 
Throughout the development of these NWPs, the Corps recognized the 
concerns of the natural resource agencies and environmental groups for 
the potential adverse effects on the aquatic environment resulting from 
activities authorized by these NWPs and the regulated public's need for 
certainty and flexibility in the NWP program.

Electronic Access and Filing Addresses

    You may submit comments by sending electronic mail (e-mail) to: 
[email protected]
    Submit electronic comments as an ASCII file and avoid the use of 
any special characters and any form of encryption. Identify all 
electronic comments by including the phrase ``Draft 1999 NWPs'' in the 
subject line of electronic mail messages. Comments sent as attachments 
to electronic mail messages should be in ASCII format to ensure that 
those attachments can be read by HQUSACE.

Discussion of Public Comments

I. Overview

    Approximately 10,000 comments were received in response to the July 
1, 1998 Federal Register notice, district public notices, and national 
and regional public hearings. The Corps reviewed and fully considered 
all comments received in response to the July 1, 1998, Federal Register 
notice. Most of these comments were in opposition to the proposed NWPs. 
Less than 300 commenters were in favor of the proposed new and modified 
NWPs. A number of commenters stated that NWP 26 is currently working 
well and does not need to be replaced. Of the 10,000 comments, 
approximately 8,000 were form letters and postcards that provided no 
substantive or constructive comments. Members of environmental groups 
and development groups were typically in opposition to the proposed new 
and modified NWPs. The environmental community opposed the proposed 
NWPs, asserting they would allow too much impact on the aquatic 
environment. The development community opposed the proposed NWPs, 
asserting they are too restrictive on the regulated public. Many 
commenters provided specific comments, recommending changes to the 
NWPs, general conditions, and definitions. A few commenters provided 
comments relating to 33 CFR Part 330, the regulations for the 
implementation of the NWP program. It should be noted that the proposal 
published in the July 1, 1998, Federal Register was a proposal to issue 
new and modified NWPs and modify some NWP general conditions. We did 
not propose any changes to 33 CFR Part 330. We have reviewed these 
comments, but will not modify 33 CFR Part 330 at this time. Some 
commenters suggested additional issues for the Corps to consider for 
the NWP program. These new issues are discussed elsewhere in this 
Federal Register notice.
    On August 19, 1998, the Corps held a public hearing in Washington, 
D.C. on the proposed NWPs. In addition to the national public hearing, 
Corps division offices held 12 regional public hearings in other parts 
of the country. The purpose of these public hearings was to provide 
interested parties with another forum to comment on the proposed new 
and modified NWPs. Transcripts from these public hearings were also 
reviewed and considered for changes to the NWPs and general conditions.
    The Corps received nearly 1,000 comments in response to the October 
14, 1998, Federal Register notice. Many commenters objected to the 
proposed additional restrictions to the NWP and some favored the 
proposed changes. The comments received in response to the October 14, 
1998, Federal Register notice are also discussed below.

II. General Comments

    Most commenters opposed the new and modified NWPs, but many 
commenters expressed support for the activity-based nature of the NWPs 
and the balanced approach of the general conditions and preconstruction 
notification (PCN) requirements. Some commenters stated that the NWPs 
should be based on impacts, not activities. Some commenters considered 
the proposed NWPs to be too restrictive, but the majority of commenters 
believe that the proposed NWPs are too broad in scope. Many commenters 
objected to the new and modified NWPs, because they authorize the loss 
of up to 3 acres of wetlands without the opportunity for public 
comment. A large number of commenters remarked that the proposed NWPs 
and general conditions are too complex. Some of these commenters stated 
that the complexity of the new and modified NWPs is contrary to the 
goal of streamlining the Corps regulatory program. One commenter stated 
that the Corps should revise NWP 26 to make it specific to the needs of 
each state, instead of developing broad NWPs with national 
applicability. Many commenters requested that the Corps extend the 
comment period, due to the complexity of the proposal.
    Commenters opposed to the issuance of the proposed NWPs stated that 
the NWPs should be more restrictive. These commenters cited the fact 
that the new NWPs apply to virtually all non-tidal waters of the United 
States, which they believe results in less protection of the aquatic 
environment. Many of these commenters stated that the Corps intent to 
replace NWP 26 with NWPs that are more protective of the aquatic 
environment is not accomplished by the proposed NWPs. These commenters 
requested that the Corps withdraw the proposed new and modified NWPs 
and develop NWPs that are more protective of aquatic resources. Some 
commenters said that the environmental protection provided by the NWPs 
will be reduced by the absence of review by the Corps and the absence 
of site visits. Many commenters requested that the Corps modify the 
proposed new NWPs to provide more protection for wetlands and small 
streams. Several commenters stated that the proposed NWPs help promote 
sprawl development by making it easier to fill wetlands.
    We disagree with the assertion that the proposed new and modified 
NWPs reduce protection of the aquatic environment. The terms and 
conditions of these NWPs contain provisions that provide more 
protection of aquatic resources. For example, NWPs 39 and 43 require 
that prospective permittees submit a statement with the PCN describing 
how impacts to waters of the United States have been avoided and 
minimized and explaining why additional avoidance and minimization 
cannot be achieved on the project site. In addition, some of the 
proposed NWPs require compensatory mitigation to ensure that the 
adverse effects of the authorized work on the aquatic environment are 
minimal, a water quality management plan to protect the local aquatic 
environment, especially downstream water quality, and

[[Page 39258]]

management of water flows to ensure that downstream flow conditions are 
maintained and that the authorized work can withstand expected high 
flows.
    For the proposed new and modified NWPs, we have directed our 
district offices to regionally condition these NWPs to provide 
additional protection for high value waters. Most of these NWPs do not 
authorize activities in non-tidal wetlands adjacent to tidal waters.
    The proposed new and modified NWPs require submittal of a PCN to 
the Corps for many activities authorized by those NWPs. We believe that 
we have established PCN thresholds that will require Corps review of 
any activity that has the potential to result in more than minimal 
adverse effects on the aquatic environment, individually or 
cumulatively. District engineers will review these activities to ensure 
that they comply with the terms and conditions of the NWPs and result 
in minimal adverse effects on the aquatic environment. District and 
division engineers can lower PCN thresholds when necessary to review 
additional projects. Through the PCN process, district engineers can 
add case-specific conditions and require compensatory mitigation to 
further protect the aquatic environment and replace aquatic resource 
functions and values that are lost as a result of the authorized work. 
The PCNs will also allow district engineers to monitor the cumulative 
adverse effects of activities authorized by NWPs. The new NWPs do not 
promote sprawl development. Zoning and land use are the 
responsibilities of State, Tribal, and local governments. If the 
construction of a new development involves the discharge of dredged or 
fill material into waters of the United States, the NWPs can be used to 
satisfy Section 404 permit requirements, provided the activity complies 
with the terms and conditions of the NWPs and results in minimal 
adverse effects on the aquatic environment. If the proposed work does 
not comply with the NWPs, then a regional general permit, if 
applicable, or an individual permit will be required.
    Many commenters objected to the proposed NWPs, stating that these 
NWPs are contrary to the Administration's Clean Water Action Plan 
(CWAP). These commenters cited one of the goals of the CWAP, which is 
to achieve a net gain of 100,000 acres of wetlands per year by 2005.
    This goal of the CWAP will be achieved primarily through other 
Federal programs, including the Wetland Reserve Program and the 
Conservation Reserve Program of the U.S. Department of Agriculture 
(USDA), the Corps environmental restoration programs, the Department of 
Interior's Partners for Fish and Wildlife program, and the North 
American Wetlands Conservation Act. Non-federal programs will also 
contribute to this goal. USDA's programs are estimated to provide 
125,000 to 150,000 acres of wetlands per year and the other Federal 
programs are expected to provide an additional 40,000 to 60,000 acres 
of wetlands per year toward this goal. The Corps regulatory program is 
not expected to contribute substantial additional wetland acreage to 
this CWAP goal, but the District Engineer may require compensatory 
mitigation for activities authorized by NWPs to offset losses of waters 
of the United States and ensure that the net adverse effects on the 
aquatic environment are minimal. The Corps does expect to continue its 
documented programmatic no net loss of wetlands approach to the 
Regulatory Program.
    A number of commenters stated that the proposed NWPs increase the 
complexity of the NWP program, thereby decreasing efficiency and 
flexibility. Many commenters assert that the proposed NWPs are too 
restrictive and will increase the burden on the regulated public 
because of the notification requirements and the difficulty in 
interpreting these NWPs. A number of commenters stated that the 
proposed NWPs will increase the processing time and workload for permit 
applicants and the Corps.
    We recognize that the proposed new and modified NWPs increase the 
complexity of the NWP program, but we believe that this increase in 
complexity is necessary to protect the aquatic environment while 
authorizing activities with minimal adverse effects on the aquatic 
environment in an efficient and effective manner. The proposed new and 
modified NWPs will be used to prioritize workload in non-tidal waters. 
In high value waters, additional protection will be provided by 
regional conditioning or suspending or revoking certain NWPs if the use 
of those NWPs would result in more than minimal adverse effects on the 
aquatic environment. The NWPs will be used to efficiently authorize 
activities in low value waters. It is likely that most project 
proponents will design their projects to comply with the new and 
modified NWPs rather than applying for authorization through the 
individual permit process. The proposed new and modified NWPs, with the 
three proposed NWP general conditions, will substantially increase 
processing times and the Corps workload. Prohibiting the use of NWPs 
21, 29, 39, 40, 42, 43, and 44 to authorize permanent, above-grade 
fills in waters of the United States within the 100-year floodplain 
will result in large increases in the number of individual permit 
applications processed by the Corps.
    Some commenters remarked that the proposed NWPs have taken on 
elements of the individual permit review process, such as Section 
404(b)(1) analysis, mitigation sequencing, and no net loss. One of 
these commenters recommended replacing the proposed NWPs with NWPs that 
authorize activities on a generic basis with specific limits but no 
reporting requirements. One commenter recommended retaining NWP 26, but 
modifying it to authorize activities below headwaters, because it would 
be simpler than the proposed NWPs.
    While there are some similarities between the individual permit 
review process and the NWPs, there are also important differences. 
General Condition 19 requires that permittees avoid and minimize losses 
of waters of the United States on the project site to the maximum 
extent practicable and states that the District Engineer can require 
compensatory mitigation to offset losses of waters of the United States 
that result from the authorized work to ensure that the adverse effects 
on the aquatic environment are minimal. This general condition is 
similar, but not identical to the Section 404(b)(1) analysis required 
for Section 404 individual permits. It is important to note that an 
off-site alternatives analysis is not required for activities 
authorized by NWPs, or any other general permit. The Section 404(b)(1) 
analysis required for individual permits requires analysis of off-site 
alternatives to determine if a practicable, less environmentally 
damaging, alternative exists to the proposed work on the original site.
    To replace NWP 26 with NWPs that authorize activities on a generic 
basis would be contrary to Section 404(e) of the Clean Water Act. 
Activities authorized by general permits, including NWPs, must be 
similar in nature and result only in minimal adverse effects on the 
aquatic environment, individually or cumulatively. Each of the proposed 
new and modified NWPs is activity-specific, authorizing activities that 
are similar in nature. Removing the reporting requirements from the new 
and modified NWPs would increase the probability that the NWPs would be 
used to authorize activities that result in more than minimal adverse 
effects on the aquatic environment. District

[[Page 39259]]

engineers utilize the PCN process to review proposed activities to 
determine if they comply with the terms and conditions of the NWPs, 
including the statutory requirements of Section 404(e). The only way 
the Corps can issue an NWP without PCN requirements would be to lower 
the acreage limit to an extremely low level to ensure that all 
activities authorized by the NWP would result in minimal adverse 
effects on the aquatic environment. This would substantially reduce the 
utility of the NWPs, result in unacceptable increases in the number of 
individual permits for minor activities processed by the Corps, and 
severely limit the effectiveness and utility of the NWP program.
    Modifying NWP 26 to authorize activities below headwaters would not 
accomplish the intent of the new and modified NWPs because such a 
modification of NWP 26 may not satisfy the statutory requirements of 
Section 404(e). One of the criticisms of NWP 26 is that many people 
believe that it does not satisfy the ``similar in nature'' requirement 
of Section 404(e) of the Clean Water Act. We believe that the activity-
specific new and modified NWPs clearly satisfy all of the requirements 
of Section 404(e).
    One commenter stated that the proposed NWPs change a goal of the 
Section 404 program from one of ``no net loss'' of wetlands to one of 
``no net loss of aquatic resource functions and values.'' This 
commenter also said that focusing on the effects of non-point source 
discharges on water quality is the responsibility of the states, not 
the Corps. A couple of commenters stated that, in the July 1, 1998, 
Federal Register notice, the Corps is inappropriately expanding the 
Administration's ``no net loss'' goal for wetlands to other types of 
waters of the United States. These commenters believe that this 
expansion should be subject to public comment instead of including it 
with the proposed new and modified NWPs. One of these commenters 
objected to requiring compensatory mitigation for losses of non-wetland 
waters of the United States and that the Corps should focus only on 
achieving the goal of ``no net loss'' of wetland acreage. This 
commenter also objected to applying the ``no net loss'' goal to a 
watershed basis instead of to the nation as a whole. Some commenters 
recommended that the final NWPs contain a statement that the ``no net 
loss'' principle is applicable only for wetlands and that compensatory 
mitigation for losses of other types of waters of the United States 
should only be required to ensure that the authorized work, with 
compensatory mitigation, results in minimal adverse effects on the 
aquatic environment. Another commenter recommended that ``no net loss'' 
should be required for the NWP program.
    Although one of the Administration's five principles for Federal 
wetlands policy is the goal of no net loss of wetlands, it is important 
to consider the functions and values of wetlands, as well as other 
aquatic resources. The Section 404 program has always regulated 
activities in all waters of the United States, not just wetlands. 
Streams and other open water habitats are extremely important 
components of the aquatic environment, and are as important as 
wetlands. The proposed new and modified NWPs place a greater emphasis 
on open waters to provide those areas with the additional protection 
that we believe is warranted. It is also important to remember the 
goals of the Clean Water Act and the importance of Section 404 in 
meeting those goals. Indeed, the Corps authority to regulate and 
protect open waters is clearer within the statutory framework than our 
authority to regulate wetlands. For instance, as a condition of a 
Section 404 permit, the Corps can require vegetated buffers adjacent to 
streams to offset adverse effects of the authorized activity on water 
quality.
    Although certain statements in the July 1, 1998, Federal Register 
notice appear to expand the Administration's goal of no overall net 
loss of the Nation's remaining wetlands to other waters of the United 
States, such as streams, it is important to note that wetlands are only 
one component of the overall aquatic environment. By requiring 
compensatory mitigation for activities in other aquatic areas, such as 
streams, we are providing better overall protection for the aquatic 
environment. For the NWP program, the purpose of compensatory 
mitigation is to ensure that the authorized activities result in 
minimal adverse effects on the aquatic environment, individually or 
cumulatively, not to achieve ``no net loss'' of wetland acreage. 
Compensatory mitigation may be required by district engineers for 
losses of any type of water of the United States, not just wetlands. 
Such compensatory mitigation requirements do help contribute to the 
``no net loss'' of wetlands goal, but in some cases district engineers 
may determine that compensatory mitigation is unnecessary because the 
adverse effects of the authorized work are minimal, without 
compensatory mitigation. It is important to note that NWP compensatory 
mitigation requirements are not driven by the ``no net loss'' goal, but 
will help support that goal. For the NWP program, the need for 
compensatory mitigation is assessed on a case-by-case basis and a 
watershed basis, not a national basis, to ensure that the NWPs 
authorize only those activities that have minimal adverse effects on 
the aquatic environment, individually or cumulatively. The programmatic 
goal of no net loss of wetlands is embodied in several Corps guidance 
documents, including former NWP issuance documents. The underlying 
principle is that the Corps will require compensatory mitigation to 
offset functions and values of aquatic resources, including wetlands, 
that are lost as a result of permit actions. Within the NWP program, 
the Corps will require compensatory mitigation to offset losses of 
functions and values of aquatic resources, including wetlands, to the 
extent that the NWPs authorize activities with no more than minimal 
adverse effects on the aquatic environment. On a watershed basis, this 
will normally result in no net loss of any important aquatic functions, 
not just wetlands.
    One commenter requested that the Corps regulations should be 
consolidated as part of the proposed changes to the NWPs, because the 
Corps and the regulated public must consult multiple Federal Register 
notices for changes that have occurred over the past 12 years since the 
last consolidated rule was published. Another commenter stated that the 
Wetland Delineator Certification Program (WDCP) should be finalized to 
increase efficiency of the Corps regulatory program. Several commenters 
objected to the proposed NWPs because they authorize activities that 
are not water dependent.
    The proposal to issue new and modified NWPs and general conditions 
does not constitute rulemaking. The current NWP regulations were issued 
on November 22, 1991, and the purpose of the proposal published in the 
Federal Register on July 1, 1998, is merely to issue and modify NWPs in 
accordance with the regulations at 33 CFR Part 330. The public can 
obtain a copy of the consolidated Corps regulations at 33 CFR Parts 320 
to 330 by purchasing a copy of the appropriate Code of Federal 
Regulations published annually by the U.S. Government Printing Office 
or obtain a copy through the Internet at http://www.access.gpo.gov/
nara/index.html#cfr. The Corps has not finalized the WDCP and has not 
determined when the program will be implemented.
    On a case-by-case basis, NWP activities are not subject to the 
requirements for a Section 404(b)(1) alternatives analysis, including 
the

[[Page 39260]]

water dependency test. General Condition 19 of the NWPs requires 
permittees to avoid impacts to the aquatic environment on-site to the 
extent practicable. However, no off-site alternatives test is ever 
conducted for any general permit activity, including NWPs. In addition, 
the water dependency test in the Section 404(b)(1) Guidelines does not 
require that all activities in waters of the United States must be 
water dependent to fulfill its basic project purpose (see 40 CFR Part 
230.10(a)(3)). The vast majority of all activities permitted by the 
Corps are not water dependent. NWPs can authorize activities in special 
aquatic sites, provided they result in minimal adverse effects on the 
aquatic environment, individually or cumulatively, and impacts to the 
aquatic environment have been avoided on-site to the extent 
practicable.
    One commenter stated that the acreage limits and PCN thresholds for 
the NWPs should be more consistent. Another commenter recommended that 
the acreage limits for the NWPs should be \1/2\ or 1 acre and 200 
linear feet of stream bed. A third commenter suggested an acreage limit 
of \1/4\ acre for all NWPs. One commenter recommended that the Corps 
decrease the acreage limits of the new NWPs because permittees will 
reduce the scope of work to comply with those lower acreage limits, 
resulting in better protection of the environment and reducing wetland 
losses.
    We disagree that the acreage limits for the NWPs should be the 
same, but we have made the PCN thresholds more consistent by changing 
the PCN threshold to \1/4\ acre for most of the new and modified NWPs. 
For open and flowing waters, the PCN requirements will still vary among 
these NWPs. We also disagree with imposing an upper limit for linear 
feet of stream impacts. We have changed the prohibition against filling 
greater than 500 linear feet of stream under NWP 26 to a PCN 
requirement. NWP 39 has a PCN requirement for any discharges into open 
waters, including streams. The PCN requirement for impacts to stream 
beds will allow district engineers to review those projects to ensure 
that they result only in minimal adverse effects on the aquatic 
environment. Division engineers can also regionally condition NWPs to 
lower the acreage limits and PCN thresholds. Although many project 
proponents will design their projects to comply with the terms and 
conditions of the NWPs, there is a lower limit where such incentives no 
longer work and it would be more cost effective for the regulated 
public to pursue individual permits, which may result in even greater 
adverse effects on the aquatic environment. With the proposed new and 
modified NWPs, we believe that we have developed NWPs that balance 
environmental protection with development activities by providing the 
districts with the ability to use NWPs to authorize most activities 
with minimal individual or cumulative adverse effects on the aquatic 
environment while protecting high value areas with regional conditions.

Expiration of Nationwide Permit 26

    In the July 1, 1998, Federal Register notice, we proposed to change 
the expiration date of NWP 26 from December 13, 1998, to March 28, 
1999. Many commenters objected to the proposed extension of the 
expiration date for NWP 26. A number of commenters requested that the 
Corps retain NWP 26 until the proposed new and modified NWPs become 
effective. Other commenters suggested that the Corps change the 
expiration date of NWP 26 to February 11, 2002, to continue to 
authorize projects that will not be authorized by the new and modified 
NWPs. One commenter expressed concern about confusion resulting from 
different expiration dates for the NWPs.
    Due to changes in the schedule and process for developing and 
implementing the new and modified NWPs to replace NWP 26, the Corps 
announced in the October 14, 1998, issue of the Federal Register the 
extension of the expiration date of NWP 26 to September 15, 1999, to 
allow for additional public comment on the new and modified NWPs, 
general conditions, and regional conditions. Since the proposed new and 
modified NWPs and regional conditions will not become effective before 
September 15, 1999, we have decided to extend the expiration date of 
NWP 26 to December 30, 1999, or the effective date of the new and 
modified NWPs, whichever occurs first, to allow the continued use of 
NWP 26 until the new and modified NWPs become effective. Extending the 
expiration date of NWP 26 until the effective date of the new and 
modified NWPs is necessary to ensure fairness to the regulated public 
by continuing to provide an NWP for activities with minimal adverse 
effects in headwaters and isolated waters until the new activity-
specific NWPs become effective. If the expiration date of NWP 26 is not 
extended, most project proponents would have to apply for individual 
permits, although some activities may be authorized by other NWPs or 
regional general permits. For those activities with minimal adverse 
effects on the aquatic environment, it would be unfair and 
unnecessarily burdensome on the regulated public to require an 
individual permit.
    We will not extend the expiration date of NWP 26 to February 11, 
2002, to authorize those activities that do not qualify for the new and 
modified NWPs. Such action would be contrary to our intent, which is to 
replace NWP 26 with activity-specific NWPs. However, the Corps does not 
intend to allow a lapse in time to occur between the effective date of 
the new and modified NWPs and the expiration date of NWP 26. Activities 
that were previously authorized by NWP 26, but could not be authorized 
by the proposed new and modified NWPs may be authorized by individual 
permits, other NWPs, or regional general permits.
    In response to the October 14, 1998, Federal Register notice, a 
large number of commenters supported the extension of the expiration 
date of NWP 26, but a few commenters objected to the time extension. 
Several commenters stated that the Corps should not set a specific 
expiration date for NWP 26, to ensure that it is available until the 
new and modified NWPs become effective. A number of commenters said 
that the October 14, 1998, Federal Register notice was unclear as to 
whether the expiration date for NWP 26 is extended to September 15, 
1999; it appeared to these commenters that the new expiration date was 
published for public comment. One of these commenters requested that 
the Corps clearly state in this Federal Register notice the new 
expiration date for NWP 26. Two commenters expressed concern about the 
expiration of NWP 26 authorizations for projects which already have 
been authorized by this NWP.
    The expiration date for NWP 26 was changed to September 15, 1999, 
as announced in the October 14, 1998, Federal Register notice. The new 
expiration date was not subject to public comment in that notice. It is 
necessary to set a firm expiration date for NWP 26 to minimize 
confusion for the regulated public during the process of developing and 
implementing the new and modified NWPs.
    In accordance with 33 CFR Part 330.6(b), permittees with a valid 
NWP 26 authorization have up to one year to complete the authorized 
work, provided they start the work or are under contract to do the work 
prior to the expiration of the NWP. This provision of the NWP 
regulations is not affected by the proposed new and modified NWPs. Any 
activities authorized by NWP 26 that have not commenced or are not 
under

[[Page 39261]]

contract prior to the expiration of NWP 26 must be reauthorized by 
another NWP, a regional general permit, or an individual permit. Some 
of these projects may be authorized by the proposed new and modified 
NWPs, provided those projects meet the terms and conditions of those 
NWPs.

State, Tribal, and EPA Section 401 Certification of the NWPs

    One commenter stated that the Corps denial of an NWP authorization 
based on the denial of the Section 401 water quality certification 
(WQC) by States, Tribes, or EPA prevents applicants from pursuing an 
individual permit. According to the commenter, applicants are required 
to obtain an individual, project-specific WQC. A number of commenters 
objected to the Corps practice of issuing provisional NWP verifications 
where WQC has been denied by the State, Tribe, or EPA. One commenter 
stated that NWPs should not be used in states where WQC has been denied 
or the NWP activity is determined to be inconsistent with the State's 
Coastal Zone Management Act (CZMA) plan. These commenters believe that 
individual permits should be required instead.
    Denial of WQC for an NWP should not be the sole reason for 
requiring individual permit review for activities that would otherwise 
comply with the terms and conditions of the NWP. A denial of WQC by a 
State, Tribe, or EPA for an NWP does not mean that the activities 
authorized by that NWP will result in more than minimal adverse effects 
on the aquatic environment. The WQC denial only indicates that the NWP 
activity may not meet the water quality standards for that State or 
Tribal land in all situations. For specific projects that meet the 
water quality standards, the 401 agency can issue an individual WQC or 
waive the WQC requirement. If a specific project does not meet the 
water quality standards and the 401 agency denies WQC for that project, 
then that particular project cannot be authorized by an NWP or an 
individual permit unless the WQC is later issued or waived.
    Although the Corps makes every effort to work closely with States, 
Tribes, or EPA to facilitate Section 401 water quality certification 
for activities authorized by NWPs, we have an obligation to the 
regulated public to provide timely NWP authorizations for projects that 
meet the terms and conditions of the NWPs and result in minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
Therefore, if a project qualifies for NWP authorization, we should 
issue a provisional NWP verification that is not valid until the 
permittee obtains an individual WQC or CZMA consistency determination 
or waiver and a copy is sent to the Corps. These provisional NWP 
verifications indicate that the permittee cannot commence work until 
the WQC or CZMA determination is obtained or waived.
    The final WQC and CZMA determination processes for the new and 
modified NWPs will begin with the publication of the Federal Register 
notice announcing the issuance of the NWPs. This Federal Register 
notice is scheduled to be published on October 22, 1999. Concurrent 
with that Federal Register notice, Corps districts will publish public 
notices announcing their final Corps regional conditions for the new 
and modified NWPs. The 401 and CZMA agencies will have 60 days from the 
date of that Federal Register notice to make their WQC or CZMA 
consistency determinations for those NWPs.

Regional Conditioning of the Nationwide Permits

    For the proposed new and modified NWPs, the Corps is placing 
greater emphasis on regional conditioning. Regional conditioning is 
necessary to ensure that the NWPs authorize only those activities with 
minimal adverse effects on the aquatic environment, individually and 
cumulatively.
    A number of commenters supported the increased emphasis on regional 
conditioning for the new and modified NWPs. Some of these commenters 
recognize the importance of evaluating wetland impacts on a regional 
and watershed basis. One commenter stated that since hydrologic, 
geologic, and other environmental characteristics vary across the 
country, regional conditions are necessary because an inflexible 
regulatory approach to managing waters of the United States is 
ineffective. This commenter said that regional conditions provide the 
flexibility to effectively manage waters of the United States, based on 
their particular environmental characteristics.
    Many commenters expressed opposition to the increased emphasis on 
regional conditions for the proposed new and modified NWPs. Some 
commenters recommended that the Corps eliminate regional conditioning 
from the NWP program. Two commenters said that regional conditions are 
unnecessary because the NWPs can only authorize activities with minimal 
adverse effects on the aquatic environment. Another commenter stated 
that regional conditions are unnecessary because district engineers can 
place special conditions on NWP authorizations on a case-by-case basis. 
One commenter stated that regional conditions are unnecessary because 
Federal regulations require that general permits must be based on 
activities, not types of waters. A couple of commenters objected to the 
approach presented in the July 1, 1998, Federal Register notice, 
because it treats regional conditioning as the rule, not the exception. 
One commenter stated that regional conditioning should not be required 
of all districts, because some districts may not need them.
    Regional conditioning of the proposed new and modified NWPs is 
necessary to ensure that these NWPs authorize only those activities 
that result in no more than minimal adverse effects on the aquatic 
environment, a requirement of Section 404(e) of the Clean Water Act. 
Regional conditions are necessary because the national terms and 
conditions of the NWPs are established to authorize most activities 
that result in no more than minimal adverse effects on the aquatic 
environment, individually or cumulatively. For particular regions of 
the country or specific waterbodies where additional safeguards are 
necessary to ensure that the NWPs satisfy the statutory requirements 
for general permits, regional conditions are the appropriate mechanism. 
Case-specific discretionary authority or special conditions cannot act 
as surrogates for regional conditions in many cases, especially for 
those NWP activities that do not require notification to the District 
Engineer. For example, regional conditions can restrict the use of NWPs 
in high value waters for those activities that do not require 
submission of a PCN. Although the proposed NWPs are activity-specific, 
regional conditions are necessary to protect high value waters to 
ensure that the NWPs do not authorize activities that result in more 
than minimal adverse effects on the aquatic environment. We believe 
that all districts have high value waters that should be subject to 
regional conditioning.
    A substantial number of commenters asserted that regional 
conditioning of the NWPs greatly reduces the flexibility of the NWPs, 
making them more complicated, less useful, and too restrictive. Many of 
these commenters stated that regional conditioning of the NWPs 
undermines the intent of Section 404(e) of the Clean Water Act, by 
making the NWPs more like individual permits. They also said that 
regional conditions would unnecessarily and substantially increase 
burdens on the regulated public. A number of

[[Page 39262]]

commenters stated that regional conditioning of the NWPs offsets any 
benefits in regulatory streamlining the NWPs are intended to provide. 
Several commenters stated that regional conditioning of the NWPs will 
increase the Corps workload, because there will be more projects that 
cannot qualify for NWP authorization.
    Although regional conditions may increase the complexity of the 
NWPs and reduce their applicability, it is important to remember that 
NWPs are optional permits, and if the project proponent does not want 
to comply with all of the terms and conditions of an NWP, including 
regional conditions, then he or she can apply for authorization through 
the individual permit process. Regional conditioning of the NWPs is 
likely to increase the Corps workload, but we believe that such 
increases are manageable. Division engineers will review the regional 
conditions proposed by Corps districts and ensure that any regional 
conditions that are adopted will ensure that the Corps workload will be 
prioritized to increase protection of the aquatic environment.
    A number of commenters objected to the regional conditioning 
process and wanted to reserve their comments on the proposed new and 
modified NWPs until they have had the opportunity to review the 
proposed regional conditions. Many commenters requested that the Corps 
provide the regulated community an opportunity to comment on the 
regional conditions after the new and modified NWPs are issued. Several 
commenters suggested that the Corps allow an additional 60 days to 
complete the regional conditions to allow full public participation and 
comment. Some commenters recommended that the Corps publish the 
regional conditions in the Federal Register and provide the public with 
an additional opportunity to comment on the regional conditions. A 
number of commenters stated that the process for developing regional 
conditions is vague and confusing and that clear guidance is needed to 
assist districts in developing regional conditions. One commenter 
stated that the national NWP terms and conditions should be established 
after regional conditioning is completed.
    We agree that the public should have another opportunity to comment 
on the complete NWP package, including the NWPs, general conditions, 
definitions, and Corps regional conditions. The process for issuing the 
proposed new and modified NWPs and Corps regional conditions has been 
changed from the process announced in the October 14, 1998, Federal 
Register notice. Concurrent with today's Federal Register notice, each 
Corps district will issue a public notice announcing draft regional 
conditions for a 45-day comment period. Therefore, the public will have 
45 days to provide comments on both the draft new and modified NWPs and 
the draft Corps regional conditions. We have provided Corps divisions 
and districts with guidance concerning the regional conditioning 
process to facilitate the development and implementation of regional 
conditions. We do not agree that the national terms and limits for the 
NWPs should be established after the Corps regional conditions are 
finalized because the terms and limits of the NWPs must be first 
established nationally, so that division engineers can issue Corps 
regional conditions that account for regional differences in aquatic 
resource functions and values and provide additional protection for the 
aquatic environment. Regional conditions make the NWPs more restrictive 
where necessary to ensure that those NWPs authorize only activities 
with minimal adverse effects on the aquatic environment.
    Several commenters said that division and district engineers should 
be able to use regional conditioning to make the NWPs less restrictive, 
as well as more restrictive. Two commenters asserted that the Corps 
regulations at 33 CFR Part 330.1(d) specifically state that division 
and district engineers can condition or further restrict NWPs only when 
they have concerns for the aquatic environment under the Section 
404(b)(1) Guidelines or for any other factor of the public interest. 
Another commenter recommended that the Corps institute a procedure 
whereby a permit applicant could request Corps headquarters review of a 
specific regional condition for consistency with general Corps 
regulatory policy. This commenter expressed concern that the regional 
conditioning process would create arbitrary inconsistencies in the 
implementation of the Corps regulatory program between Corps districts. 
Two commenters stated that Corps regional conditions for the NWPs 
should not duplicate the states' authority under Sections 401 and 402 
of the Clean Water Act. Another commenter expressed concern that the 
regional conditions would not completely protect waters that need 
special protection and recommended that the Corps conduct advanced 
identification of those high value areas. One commenter opposed the 
principle that regional conditions can restrict the use of NWPs in 
areas covered by Special Area Management Plans (SAMPs).
    Division and district engineers cannot use regional conditioning to 
make the NWPs less restrictive. Only the Chief of Engineers can modify 
an NWP to make it less restrictive, if it is in the national public 
interest to do so. Such a modification must go through a public notice 
and comment process. However, if a Corps district believes that 
regional general permits are necessary for activities not authorized by 
NWPs, then that district can develop and implement regional general 
permits to authorize those activities, as long as those regional 
general permits comply with Section 404(e) of the Clean Water Act. We 
do not believe that it is necessary to establish a procedure for 
headquarters review of regional conditions. Division engineers will 
review proposed regional conditions and approve only those regional 
conditions that are necessary to ensure that the NWPs authorize only 
activities with minimal adverse effects on the aquatic environment. We 
have provided division and district offices with guidance addressing 
regional conditioning of NWPs. In general, Corps regional conditions 
should not duplicate State Clean Water Act Section 401 or 402 
authorities, but regional conditions can address concerns for the 
aquatic environment that may also be related to water quality or non-
point sources of pollution. The public notice process for regional 
conditions, especially the process used for the new and modified NWPs, 
can help the Corps identify specific waterbodies that should be subject 
to regional conditions. The public had the opportunity, through 
district public notices, to recommend specific high value waterbodies 
that should receive additional protection. In some cases, it is 
appropriate to restrict or prohibit the use of NWPs in areas subject to 
SAMPs. In areas where SAMPs are conducted, general permits are often 
developed and issued to provide Section 404 and Section 10 
authorization for activities within the area covered by the SAMP. 
Restricting or prohibiting the use of NWPs within the SAMP area is 
often necessary to ensure that the SAMP is properly implemented.
    Numerous commenters suggested that regional conditions must be 
consistent between Corps districts within the same state. Another 
commenter recommended that regional conditions should be consistent 
between all Corps districts. One commenter observed that regional 
conditions being developed by districts in initial public notices for 
the new and modified NWPs are highly variable and emphasized the need 
for

[[Page 39263]]

stronger national terms and conditions. This commenter believes that 
inconsistencies between Corps districts with regard to regional 
conditions will be severe and unacceptable. One commenter requested 
that for companies operating throughout the country, regional 
conditions must be consistent between districts.
    There may be certain regions within a particular state, such as 
specific high value waterbodies, that warrant regional conditions that 
are not necessary in other areas of that state. Consistency in regional 
conditions across the country is contrary to the purpose of the 
regional conditioning process, which is to consider local differences 
in aquatic resource functions and values to ensure that the NWPs do not 
authorize activities with more than minimal adverse effects on the 
aquatic environment. Companies that work in more than one district will 
have to comply with the regional conditions established in each 
district.
    The draft regional conditions are currently available for public 
review on the Internet at the following home pages:
North Atlantic Division
Baltimore District: http://www.nab.usace.army.mil/permits/
regionalconditions.htm
New England District: http://www.nae.usace.army.mil/environm/regl.htm
New York District: http://www.nan.usace.army.mil/business/buslinks/
regulat/index.htm#PNotices
Norfolk District: http://www.nao.usace.army.mil/Regulatory/PN/PN.html
Philadelphia District: http://www.nap.usace.army.mil/cenap-op/
regulatory/regulatory.htm
South Atlantic Division
Charleston District: http://www.sac.usace.army.mil/permits
Jacksonville District: http://www.saj.usace.army.mil/permit/index.html
Mobile District: http://www.sam.usace.army.mil/sam/op/reg/almscat.htm
Savannah District: http://www.sas.usace.army.mil/regcond.htm
Wilmington District: http://www.saw.usace.army.mil/wetlands/regtour.htm
Great Lakes and Ohio River Division
Buffalo District: http://www.lrb.usace.army.mil/orgs/offices/form.htm
Chicago District: http://www.usace.army.mil/lrc/co-r/index.htm
Detroit District: http://huron.lre.usace.army.mil/regu/dtwhome.html
Huntington District: http://www.lrh-opr-nt.orh.usace.army.mil/permits/
Nationwide/nation.html
Louisville District: http://www.lrl.usace.army.mil/orf/nw/nw.html
Nashville District: http://www.orn.usace.army.mil/cof/notices.htm
Pittsburgh District: http://www.LRP.usace.army.mil/OR-F/permits.html
Mississippi Valley Division
Memphis District: http://www.mvm.usace.army.mil/regulatory/public-
notices/public__notices.htm
New Orleans District: http://www.mvn.usace.army.mil/ops/regulatory/ Rock Island District: http://www.mvr.usace.army.mil/regulatory/
nationwidepermits.htm
St. Louis District: http://www.mvs.usace.army.mil/permits/pn.htm
St. Paul District: http://www.mvp.usace.army.mil/regulatory/
regulatory.html
Vicksburg District: http://www.mvk.usace.army.mil/odf/regs/
nwpconditions.htm
Southwestern Division
Fort Worth District: http://155.84.60.1/current/current.htm
Galveston District: http://www.swg.usace.army.mil/news.htm
Little Rock District: http://www.swl.usace.army.mil/regulatory/
ceal.html
Tulsa District: http://www.swt.usace.army.mil/whatishot/whatishot.htm
Northwestern Division
Kansas City District: http://www.nwk.usace.army.mil/conops/
regulatory.htm
Omaha District: http://www.nwo.usace.army.mil/html/op-r/webpg.htm
Portland District: http://www.nwp.usace.army.mil/op/g/regulatory.htm
Seattle District: http://www.nws.usace.army.mil/reg/reg.htm
Walla Walla District: http://www.nww.usace.army.mil/html/offices/op/rf/
cond2.htm
South Pacific Division
Albuquerque District: http://www.spa.usace.army.mil/reg/localnot.htm
Los Angeles District: http://www.spl.usace.army.mil/co/co5.html#reg
Sacramento District: http://www.spk.usace.army.mil/cespk-co/regulatory/
San Francisco District: http://www.spn.usace.army.mil/regulatory/
Pacific Ocean Division
Alaska District: http://www.usace.army.mil/alaska/co/conops1.htm
Honolulu District: http://www.pod.usace.army.mil/news/newsrel.html

    Please note that the regional conditions posted on these Internet 
home pages are the current draft Corps regional conditions, and that 
there are likely to be changes to the Corps regional conditions based 
on the comments received in response to district public notices.

Compliance With Section 404(e) of the Clean Water Act

    A large number of commenters stated that the proposed NWPs are in 
violation of Section 404(e) of the Clean Water Act because they believe 
that the proposed NWPs do not authorize activities that are similar in 
nature. Section 404(e) stipulates two statutory criteria for general 
permits, including the NWPs: (1) the activities authorized by a general 
permit must be similar in nature, and (2) those activities must result 
in minimal adverse environmental effects, individually or cumulatively. 
Many of these commenters asserted that the proposed NWPs 39, 42, and 
44, as well as additional activities authorized by the proposed 
modifications of NWPs 12 and 40, violate the provisions of Section 
404(e) because they lack precise descriptions of authorized activities 
and the descriptions for these NWPs included in the July 1, 1998, 
Federal Register notice were too broad to be similar in nature and 
environmental impact. Many commenters stated that the proposed new and 
modified NWPs authorize activities with more than minimal adverse 
effects on the aquatic environment. Some commenters stated that the 
Corps has not adequately assessed the individual and cumulative adverse 
environmental effects of the new and modified NWPs in accordance with 
33 CFR Part 320 and 40 CFR Part 230.
    When considering whether or not an NWP complies with the ``similar 
in nature'' criterion of Section 404(e), it is important not to 
constrain this criterion to a level that makes the NWP program too 
complex to implement or makes a particular NWP useless because it

[[Page 39264]]

would authorize only a small proportion of activities that result in 
minimal adverse effects on the aquatic environment. Developing NWPs 
with extremely precise and restrictive language to satisfy the 
environmental community's definition of the term ``similar in nature'' 
would result in a large number of NWPs that would make the NWP program 
excessively complex and burdensome, without any added protection to the 
aquatic environment. It appears that most critics of the NWPs believe 
that activities authorized by an NWP must be identical to each other to 
satisfy Section 404(e). We believe that the term ``similar in nature'' 
is intended to have a more practical definition. The word ``similar'' 
does not have the same meaning as the word ``identical.'' We believe 
that the proposed new and modified NWPs, which are activity-specific, 
authorize only activities that are similar in nature in the broader, 
and the more practical, definition of the word ``similar.'' We agree 
that proposed NWP A may not have satisfied the ``similar in nature'' 
requirement of Section 404(e) because of the wide range of authorized 
activities listed in the text of the proposed NWP. Therefore, we have 
proposed to modify the description of activities authorized by this NWP 
(designated as NWP 39) to limit the NWP to the construction of building 
pads or foundations and attendant features necessary for the operation 
and use of the building constructed on the pad or foundation. We 
believe that NWP 39 authorizes only activities that are similar in 
nature (i.e., the construction of buildings and features necessary for 
their operation and use) and have minimal adverse effects on the 
aquatic environment. We believe that each of the other new and modified 
NWPs proposed in this Federal Register notice authorize only activities 
that are similar in nature.
    During the development of these NWPs, the Corps has complied with 
all applicable laws and regulations, especially 33 CFR Parts 320 
through 330 and 40 CFR Part 230. For those new and modified NWPs that 
are issued, the Corps will prepare Environmental Assessments, 
Statements of Finding, and, where applicable, Section 404(b)(1) 
Compliance reviews. These documents will address how these NWPs comply 
with the public interest review criteria in 33 CFR part 320 and the 
Section 404(b)(1) impact analysis criteria in 40 CFR part 230. To 
further ensure that the NWPs authorize only activities with minimal 
adverse effects on the aquatic environment, the NWP general conditions 
address specific concerns relating to the NWP program, such as 
compliance with the Endangered Species Act and the National Historic 
Preservation Act. Most NWPs require a Section 401 water quality 
certification to ensure that the authorized activities meet State or 
Tribal water quality standards. In coastal areas, most NWPs require a 
coastal zone consistency determination to comply with Section 307 of 
the Coastal Zone Management Act. Activities that require a permit 
pursuant to Section 103 of the Marine Protection, Research, and 
Sanctuaries Act of 1972 are not authorized by NWPs.
    In accordance with Section 404(e) of the Clean Water Act, the NWPs 
cannot authorize activities that result in more than minimal adverse 
effects on the aquatic environment, individually or cumulatively. For 
those activities that may result in more than minimal adverse effects 
on the aquatic environment, division or district engineers will assert 
discretionary authority (see 33 CFR 330.4(e) and 33 CFR 330.5(c) and 
(d)), and notify the applicant that the proposed activity is not 
authorized by NWP. Therefore, the NWPs comply with 40 CFR 230.1(c) and 
230.7(a)(3). The factual determination requirements of 40 CFR 230.11 
will also be addressed in the decision document for each NWP. These 
decision documents will include estimates of the discharges anticipated 
to be authorized by the NWP that are required pursuant to 40 CFR 
230.7(b)(3).
    General Condition 19 of the NWPs satisfies the requirements of 40 
CFR 230.10(d). This general condition requires that permittees avoid 
and minimize adverse effects on the aquatic environment on-site to the 
maximum extent practicable. If the adverse effects of the proposed work 
on the aquatic environment are more than minimal, then the District 
Engineer will exercise discretionary authority and the project cannot 
be authorized by NWP, unless it is modified to reduce the adverse 
effects and comply with all of the requirements of the NWP.
    One commenter stated that the Corps increased emphasis on regional 
conditioning of the NWPs is an acknowledgment that activities 
authorized by NWP have the potential of resulting in more than minimal 
adverse effects on the aquatic environment. This commenter objected to 
the Finding of No Significant Impact (FONSI) issued on June 23, 1998, 
stating that the FONSI is based on regional conditions which have not 
yet been proposed. Several commenters objected to the position that the 
adverse effects on the aquatic environment authorized by the NWPs will 
be minimal because they authorize only relatively small losses of 
waters of the United States and in many cases require compensatory 
mitigation for those losses. These commenters state that small wetlands 
often have significant values (e.g., prairie potholes provide waterfowl 
habitat) and that compensatory mitigation is often ineffective in 
replacing those values. They also stated that there is insufficient 
qualitative or quantitative analysis concerning environmental 
consequences of the new and modified NWPs.
    The NWPs authorize activities that, under most circumstances, 
result in minimal adverse effects on the aquatic environment. The Corps 
has always acknowledged that some activities that could potentially be 
authorized by NWPs may have more than minimal adverse effects on the 
aquatic environment. The notification requirements for NWPs allow 
district engineers the opportunity to review proposed activities that 
have the potential for exceeding the minimal adverse effect threshold. 
The provisions in the NWP regulations, specifically 33 CFR 330.4(e) and 
33 CFR 330.5(c) and (d), allow district and division engineers to 
exercise discretionary authority when specific activities result in 
more than minimal adverse effects on the aquatic environment and 
require an individual permit for those activities. Discretionary 
authority also allows division and district engineers to place 
conditions on NWPs to ensure that the NWPs authorize only those 
activities that have minimal adverse effects on the aquatic 
environment. Division engineers can also place regional conditions on 
the NWPs. In specific high value waterbodies or wetland types, regional 
conditions can restrict the use of NWPs in those waters by lowering 
acreage limits or notification thresholds. Regional conditions can also 
prohibit the use of NWPs in high value waters. District engineers can 
place case-specific special conditions on NWP authorizations. The FONSI 
issued on June 23, 1998, merely reiterates the fact that the regional 
conditioning process helps ensure that the NWPs authorize only those 
activities that result in minimal adverse effects on the aquatic 
environment.
    We recognize that there has been, and continues to be, substantial 
interest among the public regarding the potential environmental effects 
associated with the implementation of the NWP program. With the last 
reissuance of the NWPs in December 1996, we reemphasized our commitment 
to improve data collection

[[Page 39265]]

and monitoring efforts associated with the NWP program, and NWP 26 in 
particular. In many instances, these efforts have already provided 
critical information on the use of the NWPs, overall acreage impacts, 
affected resource types, the geographic location of the activities, and 
the type of mitigation provided. This information is critical in our 
efforts to make well-informed permitting and policy decisions regarding 
the continued role of the NWP program and to ensure that the program 
continues to authorize only those activities with minimal individual 
and cumulative effects.

Compliance With the National Environmental Policy Act

    Many commenters believe that the proposed new and modified NWPs do 
not comply with the National Environmental Policy Act (NEPA). They 
disagree with the Corps determination that the NWPs do not constitute a 
major Federal action that significantly affects the quality of the 
human environment. These commenters assert that the new and modified 
NWPs will expand the direct, indirect, and cumulative adverse effects 
of the NWPs, because these NWPs are applicable in a broader geographic 
range of waters of the United States than NWP 26.
    Many commenters addressed the preliminary environmental assessments 
(EAs) for the new and modified NWPs and the FONSI issued on June 23, 
1998. Several commenters believe that the Corps is making a circular 
argument when it states that the NWPs do not constitute a major Federal 
action because, by definition, the NWPs authorize only activities with 
minimal individual or cumulative adverse effects on the aquatic 
environment. They believe this conclusion is based on the definition of 
a general permit, not on data from authorized impacts. They suggest 
that the Corps consider the loss of wetlands over an extended time 
period to evaluate the actual adverse effects on the aquatic 
environment in specific terms, not generalities. One commenter 
concurred with the Corps determination that the NWPs do not require an 
Environmental Impact Statement (EIS). One commenter stated that an EIS 
should be required prior to implementing the new and modified NWPs and 
the EIS must include an economic analysis of the economic effects of 
the NWPs. Another commenter said that to comply with NEPA, the Corps 
must evaluate both wetlands and upland impacts for activities 
authorized by NWPs.
    NEPA requires Federal agencies to prepare an EIS only for major 
Federal actions that have a significant impact on the quality of the 
human environment. Even though we have committed to prepare a 
Programmatic Environmental Impact Statement (PEIS) for the NWP program, 
we continue to maintain our position that the NWP program does not 
constitute a major Federal action significantly affecting the human 
environment. Therefore, the preparation of an EIS is not required by 
NEPA. The NWPs authorize only those activities that have minimal 
adverse environmental effects on the aquatic environment, individually 
or cumulatively, which is a much lower threshold than the threshold for 
requiring an EIS. This is not a circular argument. To ensure that the 
NWPs authorize only those activities with minimal adverse effects on 
the aquatic environment, individually or cumulatively, there are 
several safeguards in the NWP program: (1) PCN requirements to allow 
district engineers to review certain proposed NWP activities on a case-
by-case basis; (2) compensatory mitigation requirements for most 
activities that require a PCN; (3) the ability to impose case-specific 
conditions on an NWP authorization to protect the aquatic environment; 
(4) the ability to impose regional conditions on an NWP to protect high 
value waters; (5) the requirement for water quality certification for 
activities involving a discharge of dredged or fill material into 
waters of the United States; (6) the requirement for Coastal Zone 
Management Act consistency determination in coastal areas; and (7) 
provisions for discretionary authority to require an individual permit 
review if the proposed impacts are more than minimal.
    The FONSI was issued on June 23, 1998. Copies of the FONSI are 
available at the office of the Chief of Engineers, at each District 
office, and on the Corps regulatory home page at http://
www.usace.army.mil/inet/functions/cw/cecwo/reg/. The EAs for each of 
the new and modified NWPs will be available on the Corps regulatory 
home page when the issuance of these NWPs is announced in a future 
Federal Register notice. When regional conditions are added to an NWP, 
a supplemental decision document containing local analyses will be 
issued by the Division Engineer. The supplemental decision documents 
for a district's regional conditions will be available at that 
district.
    For the Corps regulatory program, including the NWP program, the 
procedures for complying with NEPA are contained in 33 CFR Part 325, 
Appendix B. The scope of analysis for NEPA compliance is thoroughly 
discussed in Appendix B, including the factors to be considered when 
determining the extent of Federal control and responsibility for a 
particular project. In most cases, upland impacts are not part of 
Federal control and responsibility, and should not be included in a 
general analysis of NEPA compliance for the NWP program.
    Many commenters stated that, while they support the Corps intent to 
prepare a PEIS for the NWP program, the PEIS should be completed prior 
to the issuance of the new and modified NWPs. Several commenters 
remarked that the PEIS should have been completed prior to this 
reissuance of the NWPs in 1996. Some commenters stated that the PEIS 
should include a comprehensive and accurate accounting of the 
cumulative impacts authorized by the NWPs in the past. One commenter 
recommended that the Corps allow full public participation in the 
preparation of the PEIS through regional meetings. This commenter also 
suggested that the PEIS address the following alternatives: no action, 
reduction in scope of authorized activities, reduction in acreage 
impact limits, and alternative programmatic approaches. One commenter 
agreed that a PEIS is not required and stated that while the Corps is 
not legally prevented from producing a PEIS, even if it is not 
required, the PEIS could have significant effects on the Corps workload 
and the Corps should not devote resources to the preparation of the 
PEIS at the expense of its other activities.
    We have committed to demonstrating that the NWP program authorizes 
only those activities with minimal individual and cumulative 
environmental effects. Consistent with this commitment, the Corps will 
prepare, through the Institute for Water Resources, a PEIS for the 
entire NWP program. While a PEIS is not required for the same reasons 
that an EIS is not required, the PEIS will provide the Corps with a 
comprehensive mechanism to review the effects of the NWP program on the 
human environment. The PEIS will be conducted with the participation of 
other Federal agencies, States, Tribes, and the public. The Corps is 
scheduled to initiate the PEIS by mid-1999 and complete the PEIS by 
December 2000. Therefore, the PEIS should be completed prior to the 
next scheduled reissuance of the NWPs in December 2001. Since the PEIS 
is not required, we will not delay the issuance of the new and modified 
NWPs. The PEIS will fully comply with NEPA requirements, including 
alternatives analyses. There have been meetings to provide other

[[Page 39266]]

Federal agencies, states, Tribes, and the public with opportunities to 
participate in the scoping of the PEIS. These scoping meetings were 
announced in a Federal Register notice published on March 22, 1999 (64 
FR 13782).
    Some commenters said that the preliminary EAs do not comply with 
NEPA because they do not adequately address alternatives that are 
necessary to support the final decision. They believe that failure to 
consider a ``no action'' alternative is inconsistent with NEPA and that 
an alternatives analysis in the EA cannot be replaced with a discussion 
of the case-specific flexibility provided by the NWP program. Another 
commenter stated that if the EAs are properly prepared, they would not 
support the FONSI determination.
    In compliance with NEPA, environmental documentation will be 
prepared for each new and modified NWP. Each document will include an 
EA, a FONSI, and, where relevant, a preliminary Section 404(b)(1) 
Guidelines compliance review. Each EA will contain an alternatives 
analysis for the NWP, including a discussion of the ``no action'' 
alternative. The alternatives analysis will also consider national 
modification alternatives, regional modification alternatives, and 
case-specific on-site alternatives for the NWP. After the issuance of 
the new and modified NWPs, copies of these documents will be available 
for inspection at the office of the Chief of Engineers, at each Corps 
district office, and at the Corps regulatory home page at the Internet 
address cited at the beginning of this Federal Register notice.
    Several commenters stated that the preliminary EAs for the proposed 
new and modified NWPs are inadequate because they fail to provide an 
ecological rationale for the proposed acreage limits. These commenters 
believe that the assessment of individual and cumulative adverse 
effects relies entirely on conditions that address secondary impacts, 
future regional conditions, and the discretion of the District Engineer 
in the PCN process. Another commenter recommended that the Corps revise 
the EAs once the regional conditions are developed and suggested that 
the Corps place the revised EAs, with the regional conditions, on 
public notice in the Federal Register to provide an opportunity for 
public comment.
    Where appropriate, each EA will generally consider different 
acreage limits for each NWP. Acreage limits for each NWP are 
established to allow the NWPs to authorize most activities that result 
in minimal adverse effects on the aquatic environment, individually or 
cumulatively. The minimal adverse effects determination is based on 
general consideration of the effects of the authorized activities on 
the physical, chemical, and biological characteristics of the aquatic 
environment, as well as human use characteristics. Division engineers 
can regionally condition an NWP to decrease the acreage limit 
established nationally for that NWP, if such a regional condition is 
necessary to ensure that the NWP authorizes only activities with 
minimal adverse effects on the aquatic environment. When division 
engineers approve regional conditions for an NWP, they will issue a 
decision document that will supplement the national EA for that NWP. On 
a case-by-case basis, it is the responsibility of district engineers to 
assess and monitor the adverse effects on the aquatic environment that 
result from activities authorized by NWPs. District engineers review 
PCNs to assess the foreseeable adverse effects caused by the authorized 
work. The final EAs for the new and modified NWPs will not be subject 
to public comment, since they are final decision documents.

Scope of the New Nationwide Permits

    In the July 1, 1998, Federal Register notice, we requested comments 
on the scope of applicable waters for the new and modified NWPs. In 
that Federal Register notice, we listed five categories of applicable 
waters for the proposed NWPs. The categories of waters included: (1) 
all waters of the United States; (2) non-tidal waters; (3) non-tidal 
waters, excluding non-tidal wetlands contiguous to tidal waters; (4) 
non-Section 10 waters; and (5) non-Section 10 waters, excluding 
wetlands contiguous to Section 10 waters.
    Most of the commenters objected to the proposed NWPs because they 
authorize activities in most non-tidal waters of the United States, 
including non-tidal wetlands adjacent, but not contiguous, to tidal 
waters. On the other hand, some commenters supported the proposed NWPs 
because the distinction between non-tidal waters and headwaters and 
isolated waters was dropped from the NWP program. NWP 26 authorizes 
activities only in isolated waters and headwaters. A number of 
commenters expressed concern that the increased scope of applicable 
waters for the new NWPs provides less protection to the aquatic 
environment because many of the waters subject to the new NWPs are 
important for a variety of fish and wildlife and provide important 
functions and values such as flood control and improvement of water 
quality. One of these commenters stated that the increased scope of 
waters would harm the ecological integrity of watersheds. One commenter 
remarked that the scope of waters for the new NWPs implies that non-
tidal waters are less important than tidal waters.
    To increase protection of the aquatic environment, we have modified 
the applicable waters for the some of the proposed new and modified 
NWPs (i.e., NWPs 39, 40, 41, 42, and 43) to prohibit the use of these 
NWPs in non-tidal wetlands adjacent to tidal waters. With the proposed 
NWPs, the Corps is increasing protection of open and flowing waters, 
and not focusing only on wetlands, especially low-value wetlands. This 
approach will enhance protection of the aquatic environment. The 
proposed NWPs were developed and conditioned to better control and 
limit adverse effects on the aquatic environment. We are proposing to 
modify two NWP general conditions to provide greater protection for 
water quality and maintenance of water flows (General Conditions 9 and 
21, respectively). We are also proposing three new NWP general 
conditions to protect the aquatic environment (General Conditions 25, 
26, and 27) by restricting the use of NWPs in designated critical 
resource waters, impaired waters, and waters of the United States 
within 100-year floodplains. The proposed general conditions are 
discussed elsewhere in this Federal Register notice. In addition, Corps 
districts and divisions will regionally condition these NWPs to ensure 
that they authorize only activities with minimal adverse effects on the 
aquatic environment.
    NWPs 39, 41, 42, and 43 do not authorize activities in non-tidal 
wetlands adjacent to tidal waters. High value isolated waters 
identified by districts will be protected through the regional 
conditioning of the NWPs. Case-specific special conditions and 
discretionary authority will also be used to protect high value waters 
when district engineers review PCNs.
    Many commenters stated that the five categories of waters of the 
United States applicable to the new NWPs make the NWP program too 
complex. One commenter remarked that identifying these waters would not 
result in a workload savings to the Corps because it will require 
additional field review. One commenter recommended that the Corps 
reduce the number of applicable waters from five to three, specifically 
``all waters,'' ``Section 10 waters,'' and ``non-tidal waters.'' 
Another commenter believes that these categories are arbitrary and 
requested that the Corps

[[Page 39267]]

provide justification for these categories of waters. A few commenters 
asked why ``adjacent waters,'' as used in the context of NWP 26, was 
dropped from the NWP program. One commenter suggested that NWPs 39, 41, 
42, 43, and 44 should be modified to authorize activities only in 
isolated waters and headwaters.
    We recognize that the five categories of waters discussed in the 
July 1, 1998, Federal Register notice can be considered by some members 
of the regulated public as unnecessarily complex, so we have simplified 
the applicable waters for the new NWPs. Most of the new NWPs authorize 
discharges of dredged or fill material into non-tidal waters of the 
United States, excluding non-tidal wetlands adjacent to tidal waters. 
The applicable waters for each proposed new and modified NWP are 
discussed in detail in the preamble discussions of those NWPs.
    One commenter objected to the focus on contiguous waters and stated 
that subsurface connections between waters of the United States are as 
important as surface connections. Two commenters requested that the 
Corps specify that for non-contiguous, isolated waters, an interstate 
or foreign commerce connection must be established for these areas to 
be considered waters of the United States. One commenter objected to 
portions of the July 1, 1998, Federal Register notice that stated that 
district engineers can exercise discretionary authority when areas with 
``significant social or ecological functions and values'' may be 
adversely affected by the work, because the commenter believes that the 
Clean Water Act does not provide regulatory authority for areas with 
significant social values. Another commenter objected to the use of the 
term ``ecological functions,'' stating that it is not a term used to 
define the scope of authority.
    We recognize that subsurface connections between waters of the 
United States are important, but the Section 404 program focuses on 
surface waters. It is not necessary for the Corps to specify that 
isolated waters require an interstate or foreign commerce connection 
for these waters to be considered waters of the United States, because 
that requirement can be found in 33 CFR Part 328. Discretionary 
authority can be exercised by division and district engineers where 
there are sufficient concerns for the aquatic environment under the 
Section 404(b)(1) guidelines or any other factor of the public 
interest. Public interest factors include consideration of waters with 
``significant social or ecological functions and values.''
    A couple of commenters stated that the classification of perennial, 
intermittent, and ephemeral streams will establish a ranking system, 
implying that perennial streams are more valuable than ephemeral 
streams. These commenters believe that the majority of streams in the 
northwestern, northeastern, and southern United States will receive 
more protection than those in the western and southwestern United 
States.
    We are classifying streams as perennial, intermittent, and 
ephemeral for the purposes of the NWPs to evaluate or restrict adverse 
effects to flowing waters more effectively. For example, in NWP 43 we 
are proposing to prohibit the construction of new stormwater management 
facilities in perennial streams. Damming perennial streams to construct 
stormwater management ponds often has more than minimal adverse effects 
on the aquatic environment, particularly for aquatic organisms such as 
fish and invertebrates. Dams in perennial streams may block fish 
passage to spawning areas and disrupt food webs in streams, reducing 
the productivity of streams. In many areas, it is more effective to 
construct stormwater management ponds in ephemeral and low-value 
intermittent streams, because these facilities, if properly designed, 
constructed, and maintained, will substantially reduce adverse effects 
of nearby development on local water quality and water flows. In areas 
where ephemeral streams are valuable aquatic resources, division and 
district engineers can regionally condition the NWPs to restrict their 
use in ephemeral streams or require PCNs for activities in ephemeral 
streams.

Indexing of the Nationwide Permits To Determine Acreage Limits

    In the July 1, 1998, Federal Register notice, we requested comments 
on the use of indexing to determine acreage limits for NWPs 39 and 40, 
as well as the proposed NWP B for master planned developments. Most of 
the commenters who addressed the use of indexing to determine acreage 
limits for certain NWPs were opposed to the indexing schemes proposed 
in the July 1, 1998, Federal Register notice. A majority of commenters 
stated that the proposed indexes were too confusing, not scientifically 
based, burdensome on the regulated public, and would result in a 
significant workload increase for the Corps. These commenters believe 
that indexing acreage limits makes the NWPs less efficient and 
increases the amount of time spent reviewing activities that have 
minimal adverse effects on the aquatic environment. Most of these 
commenters requested that the Corps continue to use simple acreage 
limits for the NWPs. Some commenters recommended basing the indexed 
acreage limit on a percentage of parcel size, whereas other commenters 
suggested basing the indexed acreage limit on a percentage of the total 
wetland acreage within the parcel, not the total size of the parcel.
    Some commenters believe the proposed indexes for these NWPs were 
too restrictive and that both the maximum acreage loss and PCN 
thresholds under the NWP should be higher. Other commenters said that 
the proposed indexes and PCN thresholds would authorize activities with 
more than minimal adverse effects on the aquatic environment and 
recommended reducing the acreage limits and PCN thresholds. Several 
commenters believe that using indexing to determine acreage limits will 
allow NWPs to authorize activities that result in more than minimal 
cumulative adverse effects by not addressing avoidance and 
minimization. A number of commenters were confused as to how the 
proposed indexes would be interpreted or utilized, particularly where 
there was overlap between parcel size ranges and acreage limits. For 
example, the proposed acreage limit index for NWP A had an acreage 
limit of \1/2\ acre for parcel sizes of 5 to 10 acres and an acreage 
limit of 1 acre for parcel sizes of 10 to 15 acres. These commenters 
were uncertain as to whether the acreage limit for a project 
constructed on a 10-acre parcel would be \1/2\ acre or 1 acre.
    We believe that indexing acreage limits based on project size or 
project area is necessary for certain NWPs (i.e., NWPs 39 and 40) to 
ensure that those NWPs authorize only activities that have minimal 
adverse effects on the aquatic environment. Instead of using the 
indexing schemes proposed in the July 1, 1998, Federal Register notice, 
we are proposing indexes based on simple algebraic formulas, using a 
percentage of project area or farm tract size. The proposed indexed 
acreage limit for NWP 39 has a minimum acreage limit of \1/4\ acre for 
a single and complete project, with the indexed acreage limit 
increasing by 2% of the project area to a maximum acreage limit of 3 
acres. For NWP 40 activities in playas, prairie potholes, and vernal 
pools, we are proposing a similar indexing formula, with a base acreage 
limit of \1/10\ acre and a different percentage of farm tract size 
(i.e., 1% of farm tract size). For NWP 40 activities in other types of 
non-tidal

[[Page 39268]]

wetlands to increase agricultural production, we are proposing a simple 
acreage limit of 2 acres, since the average farm tract size in the 
United States is 275 acres, which means that most agricultural 
producers would qualify for the maximum acreage limit even if an 
indexed acreage limit would be used.
    The algebraic indexing scheme will be easier to use and less 
confusing than the indexes proposed in July 1, 1998, Federal Register 
notice. Indexing based on the percentage of project size will avoid the 
confusion resulting from overlap of parcel size ranges. For example, in 
the indexing scheme proposed for NWP A in the July 1, 1998, Federal 
Register notice (see 63 FR 36067), a 15-acre parcel would be subject to 
either a 1 or 2 acre limit. The algebraic index avoids this overlap in 
acreage limits. We believe that the indexes used for NWPs 39 and 40 
will allow the authorization of most activities that result in minimal 
adverse effects on the aquatic environment, individually or 
cumulatively. Division engineers can regionally condition NWP 39 to 
make the indexed acreage limit more restrictive, either by reducing the 
minimum acreage limit, percentage of project area or farm tract size, 
or maximum acreage limit. For example, NWP 39 can be regionally 
conditioned to reduce the minimum acreage limit from \1/4\ acre to \1/
10\ acre or the percentage of project area from 2% to 1%. However, 
paragraph (a) of NWP 40 cannot be regionally conditioned by division 
engineers, to ensure consistent implementation of this part of NWP 40 
in cooperation with NRCS throughout the country. An activity that 
exceeds the indexed acreage limit will require authorization by another 
NWP, a regional general permit, or an individual permit. The use of an 
indexed acreage limit does not preclude project proponents from 
complying with General Condition 19, which requires on-site avoidance 
and minimization of activities in waters of the United States to the 
maximum extent practicable. If the District Engineer determines that 
the proposed work will result in more than minimal adverse effects on 
the aquatic environment, then discretionary authority will be exercised 
and the applicant will be notified that another form of Corps 
authorization, such as an individual permit or regional general permit, 
is required.
    Another source of confusion for NWP applicants cited by commenters 
was the application of PCN thresholds with an indexed acreage limit. 
For example, the proposed index for NWP 39 had an acreage limit of \1/
4\ acre for activities on parcels less than five acres in size. The 
proposed PCN threshold for this NWP was \1/3\ acre. Some commenters 
thought that this implied that losses of greater than \1/4\ acre of 
waters of the United States would require notification to the Corps, 
but this requirement was not specifically stated in the NWP.
    For NWP 39, the PCN threshold has been changed to \1/4\ acre. Since 
this threshold is the same as the minimum acreage limit of \1/4\ acre 
in the indexed acreage limit, the PCN requirements for these NWPs 
should not be confusing. District engineers will not receive PCNs for 
agricultural activities authorized only by paragraph (a) of NWP 40. 
Instead, they will receive postconstruction reports from landowners 
that describe the authorized work.

Workload Implications of the New NWPs

    A number of commenters stated that the complexity of the proposed 
NWPs will increase the Corps workload for the NWP program. Some of 
these commenters said that the current staffing level of the Corps is 
inadequate to implement the proposed new and modified NWPs. One 
commenter stated that utilization of the NWPs as a tool to prioritize 
workload is an abdication of the Corps responsibility. This commenter 
said that the Corps regulatory program can be made more efficient 
through other means, such as improved technology, the use of private 
delineators, permit fees, and increased coordination.
    For many years, general permits, including NWPs, have been used by 
the Corps to manage its workload by authorizing activities with minimal 
adverse effects on the aquatic environment that would otherwise be 
subject to the more resource-intensive individual permit process. The 
Corps does not have the resources to review each activity that requires 
a Section 404 and/or Section 10 permit through the individual permit 
process. Requiring individual permits for all these activities would 
also create unnecessary burdens on the regulated public. Most 
activities authorized by the Corps regulatory program are authorized by 
general permits. General permits, including NWPs, authorize activities 
that would usually be authorized through the individual permit process 
with little or no change in the scope of work. It is inefficient to 
require an individual permit for activities that have minimal adverse 
effects on the aquatic environment that the Corps could authorize more 
effectively through the general permit process. General permits also 
benefit the aquatic environment because they provide incentives for 
landowners and developers to design their projects to reduce adverse 
effects on the aquatic environment to qualify for the expedited permit 
process provided by general permits.
    The scope of applicable waters for the proposed NWPs and the 
proposed new NWP general conditions, especially General Condition 27, 
will cause substantial increases in the Corps workload by requiring 
individual permits for many activities in designated critical resource 
waters, impaired waters, and waters of the United States within the 
100-year floodplain. The proposed prohibition against using NWPs to 
authorize certain activities resulting in permanent, above-grade fills 
in waters of the United States within the 100-year floodplain is 
expected to result in two to three thousand more individual permits per 
year added to the Corps workload.
    The increase in the Corps workload caused by the proposed NWP 
general and regional conditions will require that most Corps districts 
reprioritize their activities. Corps districts will focus their efforts 
on those actions that provide the most value added to the environment 
and the public. Inevitably, the substantial increase in workload will 
result in an increase in permit evaluation time for most permit 
reviews. At this point, we cannot quantify these impacts.

Preconstruction Notification

    A few commenters recommended that the Corps extend the review 
period for preconstruction notifications (PCNs) from 30 days to 45 or 
60 days, due to the increased complexity of the new and modified NWPs. 
One commenter expressed support for the 30-day review period for PCNs. 
Several commenters believe that the PCN thresholds and information 
requirements are confusing and that the PCN thresholds should be lower 
for all activities, such as \1/4\ acre of waters or 100 linear feet of 
stream bed.
    We recognize that the proposed NWPs are more complex than NWP 26 
and that a longer PCN period is necessary to effectively review 
notifications. We are proposing to modify the preconstruction 
notification process for the NWPs to provide more time for district 
engineers to review PCNs. District engineers will have 30 days from the 
date of receipt of a PCN to determine if it is complete. If the PCN is 
not complete, the District Engineer can make only one request for 
additional information from the applicant. This request must be made 
during the initial 30-day period. District

[[Page 39269]]

engineers cannot make additional requests for more information to 
evaluate the PCN. If the applicant has not provided all of the 
requested information to the District Engineer, then the PCN is not 
considered complete and the PCN review process will not start until the 
applicant has provided all of the requested information to the District 
Engineer. Upon receipt of a complete PCN, the District Engineer has 45 
days to determine if the proposed work qualifies for NWP authorization, 
with or without special conditions, or exercise discretionary authority 
to require an individual permit. If the District Engineer does not 
notify the applicant of the outcome of the PCN review prior to the end 
of the 45-day period, then the proposed work is authorized by NWP and 
the permittee can begin work provided all of the requisite State and 
local authorizations, such as WQC, have been obtained. We are proposing 
to modify General Condition 13 in accordance with the proposed changes 
to the notification process discussed above.
    The Corps has limited the amount of information required to be 
submitted with a PCN to the minimum necessary to effectively evaluate 
the potential adverse effects of the proposed work on the aquatic 
environment and determine if the project complies with the terms and 
conditions of the NWPs. By providing the required information when the 
PCN is first submitted to the Corps, the applicant will minimize delays 
in processing. The Corps has also changed the PCN threshold for many of 
the proposed NWPs from \1/3\ acre to \1/4\ acre to provide more 
consistency. The proposed PCN thresholds for stream bed impacts are 
similar to the PCN thresholds proposed in the July 1, 1998, Federal 
Register notice.
    Two commenters recommended that PCNs should be required for all 
activities authorized by the new NWPs. These commenters stated that 15 
days is an inadequate length of time for agency technical review of 
site conditions, mitigation plans, and monitoring plans for activities 
authorized by these NWPs. These commenters also believe that the lack 
of agency coordination for PCNs violates the Endangered Species Act 
(ESA), National Environmental Policy Act (NEPA), and the Fish and 
Wildlife Coordination Act (FWCA). Another commenter stated that the PCN 
process is illegal.
    Requiring PCNs for all activities authorized by NWPs is unnecessary 
and would substantially reduce the effectiveness of the NWPs. PCN 
thresholds are established so that only activities that could 
potentially result in more than minimal adverse effects on the aquatic 
environment require notification to the Corps. In addition, the Corps 
does not have the resources to review PCNs for every activity 
authorized by NWPs. We are proposing to modify General Condition 13 to 
provide more time for Federal and State resource agencies to review 
PCNs. These agencies will have 10 calendar days to notify the District 
Engineer that they intend to provide substantive, site-specific 
comments. If these agencies provide such notification, the District 
Engineer will wait an additional 15 calendar days before making a 
decision on the PCN. Twenty-five days is an adequate period of time for 
the Federal and State resource agencies to review PCNs. The intent of 
agency coordination is to obtain site-specific, substantive comments 
from these agencies within their area of expertise. Detailed mitigation 
and monitoring plans are not required for the PCN. The applicant need 
only propose compensatory mitigation that will offset losses of waters 
of the United States. The Federal and State resource agencies can 
comment on the appropriateness of the proposed compensatory mitigation. 
The District Engineer will determine if the proposed compensatory 
mitigation is appropriate and incorporate the requirements for 
compensatory mitigation, including detailed plans and monitoring 
requirements, into the NWP authorization as special conditions.
    The PCN process does not violate ESA, NEPA, or FWCA. General 
Condition 11 ensures that activities authorized by NWPs comply with 
ESA. There is no provision in NEPA requiring the Corps to coordinate 
activities authorized by general permits with other Federal, State, or 
local agencies. The NWP issuance process satisfies the coordination 
requirements of FWCA. The PCN process is not illegal; it is merely a 
mechanism to ensure that the NWPs do not authorize activities with more 
than minimal adverse effects on the aquatic environment, individually 
or cumulatively.
    Two commenters suggested that the avoidance and minimization 
statement required for NWPs 39 and 43 should be required for all NWP 
activities that require a PCN. Another commenter recommended that the 
minimization and avoidance statement should be limited to one page.
    We disagree that the avoidance and minimization statement is 
necessary for all NWP activities that require a PCN. General condition 
19 requires that permittees avoid and minimize impacts to waters of the 
United States on-site to the maximum extent practicable. In addition, 
many activities authorized by NWP must occur in a certain location. For 
example, repair and maintenance activities authorized by NWP 3 must be 
in the same location as the existing structure or fill. Bank 
stabilization activities authorized by NWP 13 must occur at the 
location of the bank. The statement required for NWPs 39 and 43 is 
intended to encourage the applicant to consider ways to avoid and 
minimize impacts to waters of the United States during project 
planning. It also provides avoidance and minimization information to 
Corps personnel with the PCN, instead of requiring the District 
Engineer to ask the applicant if additional avoidance and minimization 
can be achieved. The avoidance and minimization statement will allow 
more expeditious review of the PCN.
    One commenter stated that a delineation of special aquatic sites 
should be required for every activity that requires a PCN. Another 
commenter recommended establishing a notification process for projects 
that include development on floodplains, so that State and local 
floodplain management agencies can review the proposed work.
    We disagree that a delineation of special aquatic sites is 
necessary for every activity requiring a PCN. General condition 13, 
paragraph (b)(4), lists the NWPs that require submission of a 
delineation of special aquatic sites with the PCN. It is not practical 
for the Corps to establish a notification process for projects that 
occur in floodplains. In many parts of the country, there are 
floodplains that are not waters of the United States. Development 
activities in floodplains that do not involve discharges of dredged or 
fill material into jurisdictional wetlands or other waters of the 
United States do not require a Section 404 permit, even though a Corps 
permit may be required to cross waters of the United States to provide 
access to the upland development. Many State and/or local governments 
currently have programs that address construction in floodplains. 
Issuance of an NWP authorization for an activity within a floodplain 
does not preclude the State or local floodplain management agency from 
denying its authorization. If the State or local regulatory agency does 
not authorize the proposed work, then the project proponent cannot do 
the work even though the Corps may have determined that it qualifies 
for authorization under the NWP program.
    In response to the July 1, 1998, Federal Register notice, the 
National Park Service (NPS) requested that they

[[Page 39270]]

receive full opportunity to comment on all proposed NWP activities that 
may impact NPS resources. NPS also requested that they be able to 
request elevation of specific projects to require review under the 
individual permit process. Although the Department of the Interior, 
through the U.S. Fish and Wildlife Service (FWS), has the opportunity 
to review PCNs that require agency coordination, NPS believes that the 
5 day comment period does not provide enough time to allow FWS to 
consult with NPS.
    We do not agree that it is necessary to consult with NPS on every 
NWP activity. If NPS has specific concerns, they should be addressed at 
the district level, either through coordination agreements between the 
District Engineer and the local NPS office or through the regional 
conditioning process. The proposed modification of the PCN process 
would allow district engineers to provide up to 25 calendar days for 
agency comment on a specific NWP activity that requires agency 
coordination. We believe that this is ample time for FWS to coordinate 
with NPS.
    One commenter recommended that the Corps post PCNs on district 
Internet home pages to allow the public to provide comments and better 
track cumulative adverse effects. Another commenter requested that the 
Corps coordinate with the appropriate agency prior to issuing NWP 
authorizations in Tribal trust lands to determine if treaty reserved 
resources would be adversely affected by the work.
    The purpose of the PCN process is to provide the Corps with an 
opportunity to determine if a proposed activity complies with the terms 
and conditions of the NWPs and results in minimal adverse effects on 
the aquatic environment, individually or cumulatively. Posting PCNs on 
the Internet would add no value to the Corps review of the PCN. 
Cumulative adverse effects on the aquatic environment will continue to 
be tracked by Corps districts. Corps districts can regionally condition 
the NWPs to require coordination for activities that may adversely 
affect treaty reserved resources in Tribal trust lands.

Compensatory Mitigation

    A large number of commenters specifically addressed the 
compensatory mitigation requirements of the proposed new and modified 
NWPs. A few commenters stated that the proposed provisions discourage 
compensatory mitigation, because the requirements are too complex and 
burdensome. Other commenters assert that the compensatory mitigation 
requirements discussed in the July 1, 1998, Federal Register notice are 
not specific enough. Many commenters provided recommendations 
concerning the size and types of losses authorized by the NWPs for 
which compensatory mitigation is appropriate. These recommendations 
included requiring compensatory for: (1) All activities authorized 
NWPs, (2) activities that require submittal of a PCN, (3) losses of 
greater than \1/3\ acre of waters of the United States, or (4) losses 
of greater than 1 acre of waters of the United States. One commenter 
suggested that compensatory mitigation should also be required for all 
impacts to non-wetland aquatic resources. Several commenters stated 
that the Corps should not require compensatory mitigation for wetlands 
losses because other State and local regulatory agencies already have 
such requirements.
    We acknowledge that the discussions of compensatory mitigation 
requirements in the July 1, 1998, Federal Register notice contained 
some inconsistencies. Therefore, we will clarify these requirements in 
general terms, but permittees must recognize that specific compensatory 
mitigation requirements for particular projects are established by the 
District Engineer. Compensatory mitigation will normally be required 
for NWP activities that require submission of a PCN (e.g., losses of 
greater than \1/4\ acre of waters of the United States), and in all 
cases where compensatory mitigation is necessary to ensure that the 
authorized work results in minimal adverse effects on the aquatic 
environment. The District Engineer may determine that compensatory 
mitigation is not necessary for a particular project because the 
proposed work will result in only minimal adverse effects on the 
aquatic environment. Activities that do not require notification are 
presumed to result in minimal adverse effects and would not require 
compensatory mitigation to bring the adverse effects to the minimal 
level. District and division engineers can regionally condition an NWP 
to lower the notification threshold and determine, on case-by-case 
basis, if compensatory mitigation is necessary to ensure that the 
authorized work results in minimal adverse effects on the aquatic 
environment.
    Although many State and local agencies may require compensatory 
mitigation for losses of wetlands, we can require compensatory 
mitigation for losses of other waters of the United States. If the 
compensatory mitigation requirements of a State or local agency for a 
particular project adequately address the Corps concerns or 
requirements, then that compensatory mitigation can be used to satisfy 
the Corps compensatory mitigation requirements. However, some State and 
local governments may not have adequate compensatory mitigation 
provisions to ensure that activities authorized by NWPs will result in 
minimal adverse effects on the aquatic environment. Therefore, the 
Corps can impose its own compensatory mitigation requirements.
    Many commenters expressed opposition to the use of compensatory 
mitigation to offset losses of waters of the United States that result 
from activities authorized by NWPs. They believe that compensatory 
mitigation encourages off-site, out-of-kind compensation for losses of 
waters of the United States. Another objection raised by these 
commenters is that some wetland types are not easily created. A number 
of commenters cited studies that evaluated compensatory mitigation 
projects and found them to be unsuccessful or only partially 
successful. One commenter stated that only restoration and creation 
should be used to calculate net gains in wetlands. One commenter 
recommended limiting preservation only to exceptional quality or unique 
wetlands.
    Compensatory mitigation is often necessary to offset the loss of 
waters of the United States and ensure that an activity authorized by 
NWP will result in minimal adverse effects on the aquatic environment. 
The NWP regulations at 33 CFR Part 330.1(e)(3) allow permittees to 
provide compensatory mitigation to reduce the adverse effects of the 
proposed work to the minimal level. The functions and values provided 
by waters of the United States that are lost due to authorized 
activities can be replaced by carefully planned and constructed 
restoration, enhancement, and creation of aquatic habitats. 
Compensatory mitigation can also protect and enhance important aquatic 
resource functions and values through the establishment and maintenance 
of vegetated buffers adjacent to waters of the United States and, in 
exceptional circumstances, the preservation of high value aquatic 
habitats. Without compensatory mitigation, the Corps regulatory program 
would not be able to satisfy a principal goal of the Clean Water Act, 
which is the restoration and maintenance of the physical, chemical, and 
biological integrity of the Nation's waters.
    Compensatory mitigation requirements should be based on what is 
best for the aquatic environment, not

[[Page 39271]]

inflexible requirements for in-kind and on-site compensatory mitigation 
that may not successfully replace lost functions and values of aquatic 
habitats. The primary goal of compensatory mitigation is to replace the 
functions and values of waters of the United States that are lost due 
to activities authorized by NWPs. It is essential that compensatory 
mitigation projects that restore, enhance, or create aquatic habitats 
have a high probability of success. Much of the failure of past 
compensatory mitigation projects is due to poor site selection, 
planning, and implementation. On-site compensatory mitigation projects 
may fail because site conditions, such as local hydrology, are usually 
substantially changed by the authorized activity. For example, once a 
residential subdivision is constructed, the on-site hydrology may be 
altered to the extent that the site cannot support a restored or 
created wetland. In such cases, it may be better for the aquatic 
environment to conduct the compensatory mitigation project off-site, in 
a location with better chances for success within the watershed of the 
authorized work.
    When reviewing compensatory mitigation proposals, district 
engineers will consider what is best for the aquatic environment, 
including requiring vegetated buffers to open waters, streams, and 
wetlands. Wetland restoration, enhancement, creation, and in 
exceptional circumstances, preservation are not the only compensatory 
mitigation activities that can be required for an NWP authorization. 
Stream restoration and enhancement can also provide compensatory 
mitigation for losses resulting from activities authorized by NWPs. 
Upland buffers can be considered as out-of-kind compensatory mitigation 
because they protect local water quality and aquatic habitat. Vegetated 
buffers reduce adverse effects to water quality caused by adjacent land 
use. For example, forested riparian buffers provide shade to streams, 
supporting cold water fisheries. We cannot require compensatory 
mitigation for upland impacts, but we can require, as compensatory 
mitigation, upland vegetated buffers that protect water quality and 
aquatic habitat. It is important to note that the NWPs are optional 
permits, and if the project proponent does not want to establish and 
maintain vegetated buffers adjacent to waters of the United States to 
qualify for an NWP authorization, then he or she can apply for 
authorization through the individual permit process. The establishment 
or maintenance of a vegetated buffer adjacent to waters of the United 
States can be an important part of the compensatory mitigation required 
for a Corps permit. District engineers should adjust the amount of 
``replacement acreage'' required for compensatory mitigation by an 
amount that recognizes the value of the vegetated buffer to the aquatic 
environment.
    We recognize that certain wetland types are not easily restored or 
created. Past failures to replace certain types of wetlands are not 
sufficient justification to stop all efforts to replace wetlands lost 
through the Section 404 program. Some types of wetlands are easily 
restored or created, although they may take several years to achieve 
functional equivalence compared to natural wetlands. Preservation is 
also an important mechanism to protect remaining high value wetland 
types, particularly those that cannot be easily restored or created. 
Careful site selection, planning, and construction are essential to 
achieve greater success for compensatory mitigation projects.
    The ability of the Corps to review and monitor compensatory 
mitigation projects required for NWP authorizations is dependent upon 
workload and available resources. Increased use of mitigation banks and 
appropriate in lieu fee programs may make monitoring efforts more 
manageable, because those efforts can be focused on a smaller number of 
large sites instead of a large number of small individual mitigation 
projects. Mitigation banks and appropriate in lieu fee programs may 
provide better compensatory mitigation because they are often better 
planned, constructed, and maintained. The goal of compensatory 
mitigation is to offset losses of waters of the United States 
authorized by the Corps regulatory program. Because the Corps program 
causes the avoidance of most high value wetlands, most permitted 
impacts are to moderate or low value wetlands.
    We also received numerous comments concerning the location and 
types of compensatory mitigation that should be acceptable for the NWP 
program. Most commenters expressed a preference for restoration, and 
some commenters oppose the use of enhancement or preservation of 
aquatic resources to provide compensatory mitigation. Some commenters 
oppose the use of out-of-kind compensatory mitigation to offset losses 
of waters of the United States. Several commenters recommended that the 
Corps require compensatory mitigation at specific ratios, ranging from 
1:1 to 5:1. Many commenters stated that compensatory mitigation 
projects should be confined to the watershed where the losses resulting 
from the authorized activity occurred. Most commenters recommended that 
the NWPs should not express a sequencing preference for on-site 
mitigation, mitigation banks, or in lieu fee programs. One commenter 
stated that the NWPs should have a general condition establishing 
compensatory mitigation performance criteria, to specify basic 
requirements.
    We recognize that restoration is the type of compensatory 
mitigation with the greatest probability of success and encourage its 
use wherever possible. Enhancement of aquatic resources improves the 
functions and values of low-quality waterbodies, but should not be used 
in high value waters. As stated in the July 1, 1998, Federal Register 
notice, preservation of aquatic resources is estimated to comprise less 
than 5% of the compensatory mitigation required by the Corps, but it is 
an important mechanism for protecting high value wetlands and 
waterbodies.
    Out-of-kind compensatory mitigation should not be prohibited 
because it can provide substantial benefits for the aquatic 
environment. An important form of out-of-kind compensatory mitigation 
is the establishment and maintenance of upland vegetated buffers 
adjacent to open or flowing waters or wetlands. Upland vegetated 
buffers help protect and enhance the water quality and aquatic habitat 
features of waters of the United States.
    Specific compensatory mitigation requirements, such as replacement 
ratios, are determined by district engineers on a case-by-case basis. 
For the NWPs, district engineers determine what compensatory mitigation 
is necessary to ensure that the adverse effects of the proposed work on 
the aquatic environment are minimal. The Corps can require compensatory 
mitigation in excess of a 1:1 ratio of impact acreage to compensatory 
mitigation acreage in order to adequately replace the lost aquatic 
resource functions and values. The Corps can also accept out-of-kind 
compensatory mitigation, if it provides benefits to the aquatic 
environment. We believe that it is inappropriate, due to the 
differences in aquatic resource functions and values across the 
country, to establish national requirements for compensatory 
mitigation.
    One commenter stated that the compensatory mitigation data cited by 
the Corps in the July 1, 1998, Federal Register notice was misleading 
because many NWP activities do not require reporting to the Corps. 
Several commenters requested that the Corps

[[Page 39272]]

provide accurate data on losses of waters of the United States to allow 
the public to consider compensatory mitigation requirements and that 
this data should specify the proportion of compensatory mitigation that 
is achieved through enhancement of aquatic resources. A number of 
commenters requested that the Corps modify its data collection efforts 
to monitor the amount of compensatory mitigation that is accomplished 
through restoration, enhancement, creation, and preservation, as well 
as the effectiveness of these activities. Two commenters recommended 
that the Corps furnish this data to the States on an annual basis.
    The compensatory mitigation data cited in the July 1, 1998, Federal 
Register notice is based on the acreage of reported wetland impacts and 
wetland compensatory mitigation. This data does not include 
compensatory mitigation for impacts to streams and other types of non-
wetland aquatic habitats. Many of the non-reporting NWP activities do 
not result in filling of wetlands and would not normally require 
compensatory mitigation to ensure that the adverse effects to the 
aquatic environment are minimal. For NWP activities that do not require 
notification to the Corps, many permittees request a written 
determination from the Corps to ensure that their projects qualify for 
NWP authorization. The wetland impact acreage for these activities is 
included in the data compiled by the Corps. District engineers can 
require compensatory mitigation for these projects to ensure that they 
result in only minimal adverse effects on the aquatic environment.
    The data collection systems for most Corps districts do not 
currently differentiate between the amounts of compensatory mitigation 
provided through restoration, enhancement, creation, or preservation. 
Instead, most districts track only the total amount of compensatory 
mitigation required for Corps permits. The effectiveness of 
compensatory mitigation efforts is monitored by district engineers on a 
case-by-case basis, to the extent allowed by workload and personnel 
resources. Therefore, we cannot collect this type of information. The 
data the Corps collects on impacts to waters of the United States and 
compensatory mitigation is public information.
    Support and opposition for the use of mitigation banks and in lieu 
fee programs to compensate for NWP impacts was equivocal. Many 
commenters asserted that mitigation banks cannot replace the functions 
and values of smaller, scattered wetlands and that the increased use of 
mitigation banks and in lieu fee programs will not replace local 
wetland functions and values. A couple of commenters were concerned 
that consolidation of wetland habitats in a single place could increase 
the vulnerability of that single ecological wetland unit, and would not 
allow for a mosaic of wetlands. Others argued that mitigation banks 
would better compensate for scattered wetland losses by providing 
consolidated locations for compensatory mitigation, with greater 
chances of success. Some commenters expressed concern that mitigation 
banking would disrupt the mitigation sequence process and one commenter 
specifically requested that the Corps place stronger emphasis upon 
avoidance and minimization of impacts. Many commenters recommended 
streamlining the process for establishing mitigation banks, and some 
commenters requested modification of the NWP terms and conditions to 
encourage the use of mitigation banks. These commenters also requested 
that the Corps more clearly establish the policy that on-site 
compensatory mitigation may not always be the preferred choice. Several 
commenters suggested that mitigation banks should be established in 
each watershed. Some commenters expressed concern that mitigation 
banks, in some cases, utilize preservation of aquatic resources, which 
does not replace lost wetland functions and values, and does not comply 
with the goal of ``no net loss'' of wetlands.
    We cannot require the establishment of mitigation banks in a 
particular watershed or geographic area. Mitigation banks are usually 
constructed and maintained by entrepreneurs, who locate mitigation 
banks in areas where they believe the established credits will sell 
quickly. In the December 13, 1996, Federal Register notice (61 FR 
65874-65922), we did not direct Corps districts to require permittees 
to use mitigation banks for offsetting wetland losses due to NWP 26, 
but suggested that mitigation banks could be used, in addition to in 
lieu fee programs, to provide compensatory mitigation for impacts below 
1 acre.
    Consolidated mitigation methods, including mitigation banks and in 
lieu fee programs, are often an efficient means of compensating for 
losses of waters of the United States, particularly for multiple small 
projects, and may confer benefits to the aquatic environment as well 
(see 61 FR 65892). We recognize that mitigation banks and in lieu fee 
programs are often more practicable and successful because of the 
planning and implementation efforts typically expended on these 
projects by their proponents. In contrast, individual efforts to 
create, restore, or enhance wetlands to replace small wetland losses 
may be unsuccessful because of poor planning and/or construction. 
Furthermore, consolidated mitigation efforts are often better monitored 
and maintained and often result in the establishment of a larger 
contiguous wetland area that benefits the overall local aquatic 
environment and many of the species that utilize larger aquatic 
habitats. Although smaller, scattered wetland areas that exist in the 
landscape as a mosaic provide essential habitat for certain species, 
the local changes in land use usually makes it impossible to maintain 
those mosaics in any ecologically functional capacity. Recreating those 
wetland mosaics is often impractical and it is better to provide 
compensatory mitigation through consolidated mitigation methods.
    As with all other compensatory mitigation, the use of mitigation 
banks and in lieu fee programs does not eliminate the need to avoid 
impacts on-site. General Condition 19 of the NWPs requires that 
permittees avoid and minimize losses of waters of the United States on-
site to the maximum extent practicable. If the District Engineer 
determines that compensatory mitigation is necessary to ensure that the 
particular NWP activity results only in minimal adverse effects on the 
aquatic environment, individually or cumulatively, then the District 
Engineer can require compensatory mitigation to offset the loss of 
waters of the United States. Mitigation banks and appropriate in lieu 
fee programs can be used to provide the required compensatory 
mitigation. The preferred form of compensatory mitigation should be 
based on what is best for the aquatic environment, whether the 
compensatory mitigation is on-site, off-site, in-kind, or out-of-kind.
    Many of the commenters that were opposed to in lieu fee programs 
were strongly in favor of mitigation banks. Several of these commenters 
stated that mitigation banks have distinct advantages over in lieu fee 
programs, since mitigation banks have specific processes to establish 
goals, credits, and monitoring. Some commenters believe that in lieu 
fee programs compete unfairly with mitigation banks, since they are 
easier to establish and are often less costly than mitigation banks. 
One commenter requested that in lieu fee programs be prohibited in 
areas with established and functional mitigation banks with available 
credits.

[[Page 39273]]

    Mitigation banks and in lieu fee programs are not common throughout 
the country. Therefore, it would be impractical to require their use as 
a preferred or sole means of providing compensatory mitigation for 
impacts authorized by NWPs. While in lieu fee programs are used in 
several Corps districts, efforts continue to ensure that in lieu fee 
programs provide adequate compensatory mitigation. District engineers 
have the authority to approve or disapprove the use of specific 
mitigation banks or in lieu fee programs as compensatory mitigation for 
losses of waters of the United States authorized by NWPs. Permittees 
should have the flexibility to utilize compensatory mitigation methods 
that are within their means to accomplish and meet the requirements to 
offset unavoidable losses of waters of the United States. To the extent 
practicable, permittees should consider use of approved mitigation 
banks and other forms of consolidated compensatory mitigation. District 
engineers will evaluate compensatory mitigation proposals for 
appropriateness and practicability as indicated in the NWP general 
conditions.
    A number of commenters expressed concern about the effectiveness of 
in lieu fee programs in providing compensatory mitigation. Many 
commenters requested the establishment of specific requirements for in 
lieu fee programs. Two commenters suggested that the Corps establish a 
data collection system for in lieu fee programs, including payments and 
program credits, and report this data on an annual basis. Several 
commenters noted that in lieu fee programs typically do not require 
completion in advance of utilizing credits, as is the case with 
mitigation banks. Many commenters stated that payments to in lieu fee 
programs do not result in replacement of lost wetland functions and 
values. One commenter suggested limiting the use of in lieu fee 
programs to compensate for losses of small, low value wetlands and 
farmed wetlands.
    In lieu fee mitigation programs have been effective in some parts 
of the country. Typically these programs are operated by well-
established entities such as State and local government organizations 
or conservation groups. District engineers review in lieu fee programs 
to determine if they are appropriate for providing compensatory 
mitigation for losses of waters of the United States that result from 
activities authorized by the Corps regulatory program. The District 
Engineer should have a reasonable amount of confidence in the operator 
prior to utilizing such areas for compensatory mitigation. Especially 
with the NWPs, in lieu fee programs should provide applicants with a 
compensatory mitigation option that is efficient and appropriate for 
the authorized work. District engineers use their own methods to track 
the use of in lieu fee programs. We do not agree that in lieu fee areas 
should be limited to small areas and farmed wetlands. When evaluating a 
compensatory mitigation proposal, the Corps should consider the action 
that is best for the aquatic environment. In some cases, on-site 
compensatory mitigation may not be a practicable option because there 
may be a low probability of success or adjacent land uses make any type 
of on-site compensatory mitigation infeasible. In some locations, an 
appropriate in lieu fee program may be most appropriate, while in 
another district or watershed, a mitigation bank would be the best 
option.

Vegetated Buffers

    Some commenters supported the Corps increased emphasis on vegetated 
buffers adjacent to waters of the United States, including the use of 
vegetated buffers as compensatory mitigation for impacts to waters of 
the United States. A number of commenters objected to the requirements 
for vegetated buffers, stating that requirements for vegetated buffers, 
particularly upland buffers, adjacent to open and flowing waters are 
illegal because the Corps would be expanding its jurisdiction to upland 
areas. Two commenters said that the vegetated buffers can be used as a 
form of compensatory mitigation, but could not be required for an NWP 
authorization. One commenter stated that vegetated buffers should not 
be considered compensatory mitigation because they do not replace lost 
wetland acreage, including functions and values. Many commenters 
requested that the Corps provide a more specific definition and minimum 
size standards for vegetated buffers. A couple of commenters 
recommended specific minimum widths for vegetated buffers. One 
commenter suggested a buffer width of 1 or 2 kilometers from the edge 
of the wetland to preserve maximum biodiversity. Another commenter 
recommended a minimum buffer width of 100 feet from the edge of the 
wetland.
    We disagree with the assertion that requiring a vegetated buffer as 
a condition of an NWP authorization is illegal and an attempt to expand 
the Corps jurisdictional authority. The Corps currently has regulatory 
authority through the Clean Water Act to require vegetated buffers as a 
condition of an NWP authorization because vegetated buffers, including 
upland buffers, help prevent degradation of water quality and aquatic 
habitat. The establishment and maintenance of wetland or upland 
vegetated buffers adjacent to open waters, streams, or other waters of 
the United States can be considered compensatory mitigation for losses 
of waters of the United States authorized by Corps permits. One of the 
goals of the Clean Water Act is the maintenance and restoration of the 
chemical, physical, and biological integrity of the Nation's waters. 
Regulatory agencies can place any conditions on a permit or 
authorization as long as those conditions are related to the activities 
regulated by that agency. The Section 404 activities regulated by the 
Corps usually cause adverse effects on the aquatic environment. To 
offset these adverse effects, we can require measures, such as 
vegetated upland buffers adjacent to streams, that prevent or reduce 
adverse effects on the aquatic environment. Vegetated buffers, 
including uplands, adjacent to open waters of the United States provide 
many of the same functions and values of wetlands, such as flood 
mitigation, erosion reduction, the removal of pollutants and nutrients 
from water, and support aquatic habitat values. In summary, since 
vegetated buffers adjacent to open waters, even if they are uplands, 
help maintain the physical, biological, and chemical integrity of the 
aquatic environment, the Corps can require these buffers as a condition 
of a Clean Water Act Section 404 permit. Permit applicants must 
recognize that NWPs are optional permits and if the applicant believes 
that the NWPs are too restrictive, then he or she can apply for 
authorization through the individual permit process.
    For the purposes of the Corps regulatory program, vegetated buffers 
are areas inhabited by woody or herbaceous plants that are adjacent to 
streams, lakes, ponds, wetlands, or other waters of the United States. 
Vegetated buffers can be either wetlands or uplands. Mowed lawns are 
not considered vegetated buffers, because these areas do not provide 
the same functions as areas inhabited by fully grown woody or 
herbaceous vegetation. Upland vegetated buffers are generally as 
effective at protecting open water quality as wetland buffers, and are 
often the only choice where there are no wetlands adjacent to a stream. 
Vegetated buffers, including uplands, adjacent to open waters, streams, 
and wetlands, should be an integral part of the compensatory mitigation 
requirements

[[Page 39274]]

for a particular project. Vegetated buffers can be used as out-of-kind 
mitigation to offset part of the wetland loss because they provide 
substantial benefits for the local aquatic environment. Vegetated 
buffers provide the following functions and benefits to the aquatic 
environment: (1) Reducing adverse effects to water quality by trapping 
and removing sediments, pollutants, and nutrients from surface runoff; 
(2) enhancing infiltration of water into the soil, which allows plants 
and microbes to remove nutrients and pollutants from water; (3) 
decreasing storm flows to streams, thereby reducing downstream flooding 
and degradation of aquatic habitat; (4) decreasing erosion of stream 
beds and surrounding land by slowing stormwater runoff velocities and 
increasing infiltration; (5) reducing soil erosion by keeping the soil 
in place with plant roots; (6) maintaining fish habitat by reducing 
water temperature changes; (7) providing detritus from riparian 
vegetation that contributes to the aquatic food web; (8) providing 
aquatic habitat features such as snags and shade; (9) providing habitat 
to a wide variety of aquatic and terrestrial species; and (10) 
providing corridors for movement of many species of wildlife.
    For the purposes of the NWPs, vegetated buffers should consist 
mostly of native trees and shrubs. In drier areas of the United States, 
vegetated buffers can consist of herbaceous vegetation, provided the 
vegetation is not mowed or removed. Native trees and shrubs should be 
planted, where possible, to establish a vegetated buffer where one does 
not exist. If the buffer area is degraded or inhabited by invasive or 
exotic plant species, then these species should be removed and the area 
planted with appropriate native species to the extent practicable.
    Districts should normally require vegetated buffers that are 
between 50 and 125 feet wide. For streams, the width of the buffer is 
measured out from the bank of the stream, not the width across the 
stream (i.e., the buffer will be 50 to 125 feet wide on each side of 
the stream channel). For other open waters, the width of the buffer is 
measured from the bank; if no bank is present, the ordinary high water 
mark should be used instead. District engineers will use their 
discretion and judgement to determine appropriate vegetated buffer 
widths for particular projects. If adequate State or local buffer width 
requirements already exist, district engineers should utilize the same 
requirements. The width of the vegetated buffer required as part of the 
NWP authorization must balance the benefits provided to the aquatic 
environment with the uses of the property resulting from the authorized 
work. Buffer widths should not be excessive, with little additional 
benefits for the aquatic environment. Buffer width requirements can 
also depend on the condition of the local watershed. The Corps will 
determine what is best for the watershed involved, and what is 
practicable to the applicant.
    Conservation easements, deed restrictions, or similar restrictions 
should be imposed on the vegetated buffer to ensure that the buffer is 
maintained. Developers should be encouraged to place vegetated buffers 
in community open space areas, especially when such areas are required 
by State or local statutes or regulations. Recreational (e.g., hiking, 
nature, etc.) trails should generally be constructed outside of the 
vegetated buffer area, but these trails may be constructed within the 
buffer, provided the buffer is wide enough to accommodate the trail and 
the trail is constructed in such a manner so that it does not adversely 
affect the functions of the buffer.

Assessing Cumulative Impacts on a Watershed Basis

    A number of commenters stated that it is difficult to determine 
when an adverse effect on the aquatic environment is minimal on an 
individual or cumulative scale. These commenters said that the Corps 
needs to utilize technological improvements, such as geographic 
information systems, to make these determinations because they believe 
the Corps current data collection efforts are inadequate to assess 
cumulative adverse effects on the aquatic environment. One commenter 
suggested that permit applicants should be required to identify past 
and future impacts for projects and that the remaining wetlands on the 
site should be deed restricted.
    In the July 1, 1998, Federal Register notice, we discussed our 
current data collection efforts for NWPs, regional general permits, and 
standard permits. We are continuously modifying our methods of data 
collection to improve our ability to assess cumulative adverse effects 
on the aquatic environment that result from activities authorized by 
the Corps regulatory program. For each authorized activity, the United 
States Geological Survey (U.S.G.S.) hydrological unit code is entered 
in the database to record which watershed the activity is located. This 
data, along with other data collected for each authorized activity, 
will be used to assess the cumulative adverse effects on that watershed 
that result from activities authorized by the Corps.
    Since the Corps resources are limited, the amounts and types of 
data that can be collected must strike a balance between the amount of 
work required to evaluate permit applications and the usefulness of the 
data to monitor the cumulative adverse effects of those permitted 
activities on the aquatic environment. The data collected by the Corps 
regulatory program is limited to the data necessary to assess 
cumulative adverse effects so that the Corps can effectively evaluate 
permit applications and conduct enforcement and compliance activities. 
The Corps recognizes that there are gaps in the data collection effort 
because many of the activities authorized by NWPs do not require 
preconstruction notification to the Corps. However, in many cases where 
the NWP activity does not require notification to the Corps, permit 
applicants request that the Corps verify that the proposed work 
qualifies for authorization under the non-reporting NWP. The impacts 
from these projects are included in the data collected by the Corps, so 
the data collection gap is not as great as some critics of the NWP 
program believe. We do not have the resources to provide field 
verification of the adverse effects of all activities authorized by 
NWPs. We also cannot fully monitor all of the compensatory mitigation 
that is required as special conditions to many NWP authorizations.
    For the proposed new and modified NWPs, we will continue to collect 
data on a watershed basis to ensure that the use of the NWPs does not 
result in more than minimal adverse effects on the aquatic environment. 
The Corps will continue to improve its data collection efforts for all 
types of permits, not just NWPs, to better assess the adverse effects 
of the Corps regulatory program on the aquatic environment.
    When assessing cumulative adverse effects on the aquatic 
environment, particularly on a watershed basis, it is important to note 
that we can only assess those adverse effects that result from 
activities authorized by the Corps pursuant to Section 404 of the Clean 
Water Act, Section 10 of the Rivers and Harbors Act, and Section 103 of 
the Marine Protection, Research, and Sanctuaries Act. The aquatic 
environment is also adversely affected by activities that do not 
require a Corps permit. For example, construction of an upland 
residential development can result in adverse effects on water quality 
and aquatic habitat due to the removal of woody vegetation in upland 
riparian zones and surface runoff. Development and landclearing 
activities in adjacent or nearby uplands can substantially

[[Page 39275]]

alter the watershed, adversely affecting the local aquatic environment, 
but such activities are not regulated under Section 404 of the Clean 
Water Act.

Compliance With the Endangered Species Act

    A number of commenters indicated that the NWPs do not satisfy the 
requirements of the Endangered Species Act (ESA), especially for those 
activities that do not require submission of a PCN to the Corps. These 
commenters expressed concern that NWPs do not provide the necessary 
coordination required by ESA where proposed activities may adversely 
affect endangered or threatened species. One commenter stated that an 
individual permit should be required for activities within critical 
habitat for Federally-listed endangered and threatened species. Several 
commenters remarked that the Corps should condition the NWPs to 
prohibit activities that adversely affect State-listed endangered or 
threatened species. One of these commenters cited the reference to 
State-listed endangered or threatened species in the regulations for 
the Section 404(b)(1) guidelines (40 CFR part 230). A few commenters 
indicated that the NWPs focus too much on wetlands with little 
consideration of other aquatic habitats, such as streams and rivers 
inhabited by salmon and trout. Several commenters stated that the Corps 
is in compliance with the ESA because the NWPs are conditioned so that 
no activity authorized by NWPs may jeopardize the continued existence 
of a listed species or its critical habitat. These commenters assert 
that the Corps should not conduct programmatic formal consultation for 
activities that have already been determined not to result in adverse 
effects on endangered or threatened species.
    The NWP program contains provisions to ensure that activities 
authorized by NWPs comply with the ESA. General Condition 11 ensures 
that the NWPs do not authorize any activity that is likely to 
jeopardize the continued existence of a Federally-listed threatened or 
endangered species or a species proposed for designation as a 
threatened or endangered species or which is likely to modify the 
critical habitat or such species. In addition, an NWP authorization 
does not authorize the ``take'' of any Federally-listed threatened or 
endangered species. If any listed species or designated critical 
habitat may be affected by an activity authorized by NWP, the permittee 
is not authorized to begin work until the requirements of the ESA have 
been satisfied. The Corps will conduct the coordination necessary to 
ensure that activities authorized by NWPs comply with the ESA.
    For activities that occur in the vicinity of endangered or 
threatened species or their designated critical habitat, division and 
district engineers can regionally condition the NWPs to require 
notification to the Corps to allow case-by-case review of these 
activities and ensure compliance with the ESA. It is unnecessary to 
require an individual permit for NWP activities that may affect 
endangered or threatened species or designated critical habitat. If the 
Corps determines that an NWP activity may affect a Federally-listed 
endangered or threatened species, then the Corps will request formal 
consultation unless it is not required by 50 CFR Part 402.14(b). After 
completion of consultation with the U.S. Fish and Wildlife Service 
(FWS) or National Marine Fisheries Service (NMFS), the Corps will 
determine whether or not the proposed work will be in compliance with 
Section 7(a) of the ESA. After the Corps makes this determination, the 
project can be authorized by NWP or the Corps will notify the applicant 
that no permit can be issued.
    In the proposed General Condition 25, entitled Designated Critical 
Resource Waters, we are proposing to prohibit the use of NWPs 7, 12, 
14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 in NOAA-designated 
marine sanctuaries, National Estuarine Research Reserves, National Wild 
and Scenic Rivers, critical habitat for Federally-listed threatened or 
endangered species, coral reefs, State natural heritage sites, or 
outstanding national resource waters officially designated by the state 
where those waters area located. General Condition 25 also states that 
discharges are not authorized by NWPs in designated critical habitat 
for Federally-listed endangered or threatened species, unless the 
activity complies with General Condition 11 and the FWS or NMFS has 
concurred in a determination of compliance with this condition. General 
Condition 25 is discussed in more detail elsewhere in this Federal 
Register notice.
    The Corps does consider the effects of NWP activities on State-
listed endangered or threatened species within the overall evaluation 
of the proposed activity. The provisions relating to endangered or 
threatened species in the Section 404(b)(1) guidelines apply only to 
species listed under the Federal Endangered Species Act (see 40 CFR 
230.10(b)(3)), although there is some discussion of potential impacts 
to State-listed endangered and threatened species in 40 CFR Part 
230.30. To address local concerns for the aquatic environment, division 
engineers can regionally condition the NWPs to restrict their use for 
activities that may adversely affect State-listed species or their 
designated critical habitat.
    Some commenters questioned the Corps ability to issue any NWPs 
prior to completion of programmatic consultation with the FWS and NMFS. 
Another commenter recommended that, instead of programmatic ESA 
consultation for the NWP, the Corps should conduct consultation at a 
district or regional level to establish programmatic or categorical 
mechanisms to comply with the ESA. This commenter believes that 
programmatic consultation will not adequately address specific ESA 
concerns. One commenter noted that the request for formal ESA 
consultation cited in the July 1, 1998, Federal Register notice is 
inconsistent with the Corps finding that the NWP program complies with 
the ESA. Several commenters requested that the Corps conduct an 
analysis of the cumulative effects of the NWP program on endangered and 
threatened species and their critical habitat. A commenter stated that 
the Standard Local Operating Procedures for Endangered Species (SLOPES) 
established by some districts are inadequate for complying with ESA. 
Two commenters requested clarification as to whether or not the 
incidental take provisions under ESA apply to obligate wetland 
endangered or threatened species.
    We believe that the NWP program complies with the ESA and 
adequately addresses concerns for endangered and threatened species and 
their designated critical habitat. In spite of the provisions of 
General Condition 11 and the ESA Section 7(d) determination issued on 
June 10, 1997, which states that the NWPs do not adversely affect 
listed species or critical habitat, formal programmatic ESA 
consultation for the NWP program was initiated with the FWS and NMFS on 
June 4, 1999. The programmatic consultation will provide additional 
assurance that the existing NWPs, as well as the proposed new and 
modified NWPs, have a formal process to develop any necessary 
additional procedures at the district level. The programmatic 
consultation will provide further assurance that the NWP program does 
not jeopardize the existence of any Federally-listed threatened or 
endangered species. Both the programmatic ESA consultation and the 
Programmatic Environmental Impact Statement that will be prepared for 
the NWP program will address potential cumulative effects on endangered 
and

[[Page 39276]]

threatened species and their designated critical habitat. We believe 
that the SLOPES help ensure compliance with the ESA at the district 
level. Districts can meet with local offices of the FWS and NMFS to 
modify or improve their SLOPES.
    In addition to NWP General Condition 11, division and district 
engineers can impose regional conditions on the NWPs and case-specific 
conditions to address endangered or threatened species or their 
critical habitat. For example, Corps regional conditions can prohibit 
the use of NWPs in designated critical habitat for endangered or 
threatened species or require notification for activities in areas 
known to be inhabited by threatened or endangered species. Some Corps 
districts have conducted programmatic consultation on geographic areas. 
These efforts usually consider the NWP program in that particular area. 
In summary, General Condition 11, Corps regional conditions, case-
specific special conditions, and SLOPES will ensure that the NWP 
program complies with the ESA. General Condition 11 states that the 
NWPs do not authorize the ``take'' of any Federally-listed endangered 
or threatened species. It does not matter if the species is an 
``obligate'' wetland endangered or threatened species.

Additional Issues

    In response to the July 1, 1998, Federal Register notice, some 
commenters raised several new issues relating to the NWPs. A large 
number of commenters believe that the Corps is attempting to expand its 
jurisdictional authority by requiring upland vegetated buffers adjacent 
to waters of the United States as a condition of the NWPs. Some 
commenters stated that the Corps is also trying to expand its 
jurisdictional authority by applying the NWPs to activities that 
involve excavation of waters of the United States. Several commenters 
suggested additional restrictions for the NWPs. Other issues include: 
the use of multiple NWPs to authorize a single and complete project 
(often referred to as ``stacking'' of NWPs), the Corps data collection 
efforts, the use of NWPs on Tribal lands, compliance with Section 106 
of the National Historic Preservation Act, enforcement of the NWPs, 
property rights issues, and State and local authorities.
    Expansion of Jurisdictional Authority: Many commenters questioned 
the Corps authority to require upland vegetated buffers adjacent to 
open waters, streams, and wetlands, since uplands are not waters of the 
United States. Some commenters believe that if vegetated buffers are 
necessary to protect water quality, then only the appropriate water 
quality certification agency can require the vegetated buffer. Other 
commenters stated that the Corps is exceeding its regulatory authority 
by including excavation activities in the new NWPs.
    We have the legal authority to require vegetated buffers adjacent 
to streams and other waters through the Clean Water Act. The goals of 
the Clean Water Act include the maintenance of the biological, 
chemical, and physical integrity of the aquatic environment. The 
activities regulated by the Corps pursuant to Section 404 of the Clean 
Water Act and Section 10 of the Rivers and Harbors Act usually cause 
adverse effects on the aquatic environment. As compensatory mitigation 
for losses of waters of the United States, we can require measures, 
such as vegetated upland buffers adjacent to waters, that offset such 
adverse effects. Since vegetated buffers adjacent to waters, even if 
they are uplands, help maintain the physical, biological, and chemical 
integrity of the aquatic environment, the Corps can require these 
buffers as a condition of a Clean Water Act Section 404 permit.
    Another activity that many commenters believe to be an attempt to 
expand the Corps regulatory authority is the inclusion of excavation 
activities in the NWPs, particularly in the definition of ``loss of 
waters of the United States.'' These commenters cited the recent 
decision by the United States Court of Appeals for the District of 
Columbia which upheld the United States District Court for the District 
of Columbia's decision in the American Mining Congress v. Corps of 
Engineers lawsuit. This lawsuit challenged the Corps and EPA's revised 
definition of ``discharge of dredged material'' that was promulgated on 
August 25, 1993 (58 FR 45008). The revised definition of ``discharge of 
dredged material'' was overturned because the District Court held that 
the rule was outside of the agencies' statutory authority and contrary 
to the intent of Congress by asserting Clean Water Act jurisdiction 
over activities where the only discharge associated with the activity 
is ``incidental fallback.'' These commenters requested that the Corps 
remove all references to excavation activities from the new and 
modified NWPs.
    Although the revised definition of ``discharge of dredged 
material'' published on August 25, 1993, was overturned by these recent 
court decisions, certain excavation activities are still regulated 
under Section 404 of the Clean Water Act and require a Corps permit. 
Excavation activities that result in redeposits of dredged material 
into waters of the United States other than incidental fallback require 
a Section 404 permit. All other excavation activities, if they result 
in the replacement of an aquatic area with dry land or changing the 
bottom elevation of a waterbody require a Section 404 permit, and may 
be authorized by NWPs if they comply with the terms and limits of the 
NWPs. Excavation activities that result only in discharges classified 
as ``incidental fallback'' do not require a Section 404 permit. We have 
retained the excavation language in the proposed new and modified NWPs 
and the definition of ``loss of waters of the United States'' to make 
it clear that some excavation activities still require a Section 404 
permit, and if so, may be authorized by NWPs. A final rule was 
published in the May 10, 1999, issue of the Federal Register (64 FR 
25119-25123) with revisions to the Clean Water Act regulatory 
definition of ``discharge of dredged material.'' The revision clarifies 
the definition of ``discharge of dredged material'' by deleting 
language from the regulatory definition at 33 CFR Part 323.2(d) that 
was held by the Court to exceed the Clean Water Act statutory 
authority.
    Proposed Additional Restrictions for NWPs: In spite of the 
increased emphasis on regional conditioning for the new and modified 
NWPs proposed in the July 1, 1998, Federal Register notice, many 
commenters recommended additional restrictions that they believe should 
be applied to all NWPs. Several commenters recommended prohibiting the 
use of NWPs to authorize activities in wetlands that cannot be replaced 
though wetland restoration or creation, such as bogs, fens, forested 
wetlands, and vernal pools. One commenter advocated prohibiting the use 
of NWPs to authorize activities in endangered ecosystems, as identified 
by the National Biological Service. Two commenters recommended 
excluding NWPs from areas subject to watershed restoration plans, since 
many of these projects are funded by Federal agencies. One commenter 
recommended allowing the NWPs to be used only in states that have 
developed conservation plans that protect water quality, with no net 
loss of wetland function and acreage as a goal. This commenter 
described the State conservation plan as requiring a fee system to 
achieve the no net loss goal through restoration, preservation, and 
management of wetlands, with the funds from fees being spent only on 
projects, not overhead. Several

[[Page 39277]]

commenters recommended prohibiting the use of NWPs in watersheds that 
have lost more than 50% of their wetlands. A number of commenters 
recommended excluding NWPs in watersheds upstream or within Outstanding 
National Resources Waters and within critical resource waters. One of 
these commenters suggested that the Corps solicit public comments to 
identify critical resource waters. Regional conditions can be used to 
prohibit or restrict the use of NWPs from high value waters, especially 
if those waters are difficult to restore or create. We do not agree 
that NWPs should be excluded from use in areas under watershed 
restoration plans. Some activities authorized by NWPs may comply with 
the watershed restoration plan, and some compensatory mitigation 
required by NWP authorizations for work within that watershed may 
provide net benefits for the watershed. Prohibiting the use of NWPs in 
watersheds that have lost greater than 50% of their wetlands would be 
impossible to implement, because we cannot identify with a defensible 
degree of certainty the extent of jurisdictional wetlands that existed 
in that watershed. These commenters did not provide any suggestions to 
determine the historic extent of wetlands in a watershed or recommend a 
date to determine the historic baseline for wetlands. In the October 
14, 1998, Federal Register notice, we proposed to exclude the NWPs from 
critical resource waters and requested comments on how to identify 
those waters for a national NWP general condition. This proposal is 
discussed elsewhere in this Federal Register notice.
    Many commenters, notably the Federal Emergency Management Agency 
(FEMA), recommended restricting the use of NWPs within floodplains. 
FEMA stated that the use of NWPs in the 100-year floodplain is contrary 
to the Administration's goal of reducing natural hazard impacts on 
citizens because the NWPs provide Federal authorization for activities 
in floodplains. FEMA believes that the Corps should only authorize 
activities within designated Special Flood Hazard Areas through the 
individual permit process and that the NWPs should contain a provision 
stating that the NWP program does not usurp State and local floodplain 
management programs and regulations governing activities within 
floodplains. A few commenters stated that the NWPs should not authorize 
activities that result in a net loss of flood storage capacity within 
the 100-year floodplain. Several commenters recommended excluding the 
NWPs from watersheds or areas upstream of communities that have been 
designated as flood disaster areas in the past 10 years.
    In the October 14, 1998, Federal Register notice, we proposed to 
prohibit the new NWPs from authorizing permanent above-grade wetland 
fills in waters of the United States within the 100-year floodplain, as 
mapped by FEMA on their Flood Insurance Rate Maps. This proposal is 
discussed elsewhere in this Federal Register notice.
    A number of commenters recommended excluding the use of NWPs in 
tributaries identified as impaired through Section 303(d) of the Clean 
Water Act due to the loss of wetlands. Several commenters suggested 
restricting the use of NWPs in impaired waters and requested that the 
Corps solicit public comments on how to identify impaired waters. Other 
commenters recommended suspending the use of NWPs in areas designated 
as source water zones under the Safe Drinking Water Act or prohibiting 
the use of NWPs in drinking supply watersheds.
    In the October 14, 1998, Federal Register notice, we proposed to 
limit the use of NWPs in waterbodies and aquifers identified by States 
as impaired due to the loss of wetlands. This proposal is discussed 
elsewhere in this Federal Register notice. Division and district 
engineers can regionally condition any of the NWPs to prohibit or 
restrict their use in designated source water zones under the Safe 
Drinking Water Act or drinking water supply watersheds. District 
engineers can also exercise discretionary authority for activities that 
may result in more than minimal adverse effects on these areas.
    Some commenters requested that the Corps prohibit the use of NWPs 
in waters or watersheds with designated critical habitat for Federally-
listed endangered or threatened species. One commenter recommended 
excluding the use of NWPs in habitats designated by the FWS or NMFS as 
crucial for endangered or threatened species, unless the work is for 
habitat restoration.
    General Condition 11 and SLOPES that are developed by Corps 
districts adequately address the use of NWPs in designated critical 
habitat for Federally-listed endangered or threatened species. Please 
also see the discussion of General Condition 25 elsewhere in this 
Federal Register notice.
    Use of Multiple Nationwide Permits: A number of commenters objected 
to the use of more than one NWP for a single and complete project, 
believing that this practice results in more than minimal adverse 
effects on the aquatic environment. Several commenters objected to 
adding any restrictions against the use of more than one NWP to 
authorize a single and complete project, stating that it does not 
necessarily result in more than minimal adverse effects on the aquatic 
environment. One of these commenters believes that the notification 
process is sufficient to determine when specific projects requiring the 
use of more than one NWP will result in more than minimal adverse 
effects on the aquatic environment.
    We are proposing to modify General Condition 15 to address concerns 
for the use of multiple NWPs to authorize a single and complete 
project. The proposed modification of this general condition does not 
allow more than one NWP to authorize a single and complete project if 
the acreage loss of waters of the United States exceeds the highest 
specified acreage limit of the NWPs used to authorize that project. In 
the proposed NWPs we have removed the conditions that address the use 
of specific NWPs with those NWPs. The proposed modification of General 
Condition 15 is discussed in further detail below.
    Data Collection: Several commenters believe that the Corps current 
data collection efforts fail to effectively monitor both the individual 
and cumulative adverse effects on the aquatic environment resulting 
from the use of the NWPs. These commenters stated that the Corps does 
not know how many NWP activities that do not require submission of a 
PCN occur, the acreage of impact authorized by these non-reporting 
NWPs, and what types of compensatory mitigation, if any, are provided 
to offset losses of waters of the United States authorized by these 
NWPs. A number of commenters requested that the Corps track losses of 
waters of the United States authorized by non-reporting NWPs. One 
commenter stated that the Corps should not limit the use of NWPs until 
it knows for certain how many wetlands are lost each year.
    For those activities that are reported to the Corps, including 
activities authorized by NWPs, regional general permits, and individual 
permits, the Corps monitors the individual and cumulative adverse 
effects on the aquatic environment. The individual adverse effects are 
evaluated on a case-by-case basis when the Corps reviews the PCN or 
conducts the public interest review. It should also be noted that many 
NWP permittees request that the

[[Page 39278]]

Corps provide written confirmation that the proposed work is authorized 
by NWP, even though submission of a PCN to the Corps is not required. 
This allows the Corps to track many of the activities that are 
authorized by non-reporting NWPs and include the adverse effects of 
those activities in its analysis of individual and cumulative adverse 
effects, plus any compensatory mitigation provided to offset those 
impacts.
    Cumulative adverse effects on the aquatic environment that result 
from activities authorized by the Corps regulatory program are assessed 
by district engineers on a watershed or regional basis. District 
engineers utilize data collected on authorized activities for which the 
Corps issues general permit authorizations or standard permits, as well 
as estimates of the number of activities authorized by non-reporting 
general permits. Based on the actual and estimated impacts to aquatic 
resources, district engineers determine if the cumulative adverse 
effects on the aquatic environment resulting from the use of general 
permits, including NWPs, are more than minimal. Activities authorized 
by individual permits are not required to result in minimal adverse 
effects on the aquatic environment because that statutory requirement 
applies only to general permits. To prohibit the use of general permits 
in a watershed or other geographic area, the District Engineer must 
demonstrate that more than minimal cumulative adverse effects on the 
aquatic environment are caused by the Corps permit decisions. This 
demonstration must include clear, extensive, and unequivocal evidence 
that activities regulated pursuant to Section 404 of the Clean Water 
Act or Section 10 of the Rivers and Harbors Act are causing the 
cumulative adverse effects on the aquatic environment, not unregulated 
activities. Activities that are not regulated by the Corps program are 
not factored into this analysis because they are outside of the purview 
of the Corps.
    Other commenters stated that inconsistencies in data collection 
efforts exist between Corps districts and that the data collected by 
the Corps is inaccurate. They said that some districts do not collect 
the same types of data that other districts collect. These commenters 
assert that these inconsistencies result in inaccurate data reported at 
a national level. One commenter stated that the Corps should make all 
NWP information, such as the number of PCNs, NWP verifications, 
authorized losses, mitigation, and enforcement actions available on the 
Internet.
    There are standard data collection requirements for the Corps 
regulatory program. The data collected by each district for both 
general and individual permits was discussed in the July 1, 1998, 
Federal Register notice. As stated in the July 1, 1998, Federal 
Register notice, data collection requires a balance between the amount 
of work required to evaluate applications for Corps permits and the 
usefulness of the collected data to assess adverse effects of those 
activities on the aquatic environment. The specific types of data 
collected are limited to data that is necessary to evaluate the 
cumulative adverse effects on the aquatic environment that result from 
activities authorized by the Corps, while allowing the district the 
time and personnel to effectively evaluate permit applications and 
conduct enforcement activities. There are minimum standards for data 
collection for the Corps regulatory program, but some districts may 
collect additional data for their own use, if it is needed to satisfy 
other requirements. In the future, the Corps may modify its data 
collection standards to improve its assessment of the adverse effects 
of regulated activities on the aquatic environment and to provide more 
information to the public concerning the regulatory program. To make 
NWP program data, such as the number of PCNs, NWP verifications, 
authorized losses, mitigation, and enforcement actions, available for 
public access on the Internet is impractical, since each district 
maintains its own regulatory database.
    Tribal Issues: Several comments were received from Native American 
organizations regarding tribal issues relating to the NWPs. Some of 
these commenters expressed concern that use of the NWPs would result in 
adverse effects on water quality and fish habitat, and that the tribes 
would not receive notification for projects on tribal land. One 
commenter requested that the Corps add the following sentence at the 
end of General Condition 8, Tribal Rights: ``Nothing in this permit 
shall be construed to be authority or permission to conduct 
development, construction, or any other activity in waters of the 
United States with the exterior boundaries of a Federally-recognized 
Indian tribe in the absence of prior authority or permission being 
granted by such Tribal government.'' According to this commenter, some 
people believe that an NWP authorization constitutes permission to do 
work on Tribal lands without prior permission of the Tribe. Another 
commenter opposes issuance of NWP authorizations for activities within 
the boundaries of Tribal lands without the opportunity for public 
notice and comment. One commenter stated that reservation watersheds 
should be considered high value waters and receive additional 
protection and that the Corps should consult with the appropriate 
Tribal governing authority prior to issuing NWP authorizations for 
activities in a reservation watershed. One commenter said that the 
procedures of the Corps Native American Policy must be followed prior 
to the issuance of the NWPs.
    Division engineers can regionally condition the NWPs to prohibit or 
limit their use in high value waters, including high value waters on 
Tribal lands. We have provided opportunities to discuss potential 
regional conditions with Tribes, through district public notices for 
the new and modified NWPs. Tribes with Section 401 authority can deny 
water quality certification for the NWPs and require individual 401 
certifications, which would allow those Tribes to review all proposed 
NWP activities and determine if those activities meet their water 
quality standards.
    As with all Corps permits, the NWPs do not convey any property 
rights or any exclusive privileges (see 33 CFR Part 320.4(g) and the 
``Further Information'' section of the NWPs). Issuance of an NWP 
authorization does not preclude the permittee from obtaining permission 
from the appropriate Tribal government, if such permission is 
necessary. Therefore, it is unnecessary to add the requested language 
to General Condition 8. Concerns for high value waters that occur on 
Tribal lands are more appropriately addressed through the regional 
conditioning process, but we disagree with the assertion that all 
reservation watersheds are high value waters.
    Compliance with Section 106 of the National Historic Preservation 
Act: Several commenters expressed concern regarding how the new and 
modified NWPs will comply with Section 106 of the National Historic 
Preservation Act (NHPA) and how the permittee will know if the proposed 
work will affect a historic resource. Another commenter stated that the 
NWP program is not in compliance with the NHPA and its implementing 
regulations at 36 CFR Part 800, because the 5-day agency coordination 
period for PCNs is too short, since a 30-day comment period is required 
by 36 CFR Part 800.2.
    NWP General Condition 12 addresses compliance with Section 106 of 
the NHPA. This general condition states that any activity which may 
affect

[[Page 39279]]

historic properties listed, or eligible for listing, in the National 
Register of Historic Places is not authorized, unless the District 
Engineer has complied with the provisions of 33 CFR Part 325, Appendix 
C. For activities authorized by non-reporting NWPs, permittees 
concerned about compliance with General Condition 12 should contact the 
State Historic Preservation Officer (SHPO) to determine if the proposed 
work will affect historic properties. For NWP activities that require 
submission of a PCN to the Corps, the Corps will evaluate the PCN to 
determine if coordination with the SHPO is necessary to ensure 
compliance with the NHPA. In areas such as designated historic 
districts, division engineers can regionally condition the NWPs to 
require coordination with the SHPO to ensure compliance with the NHPA. 
The Corps regulations for ensuring compliance with the NHPA are found 
at 33 CFR Part 325, Appendix C, not 36 CFR Part 800.
    Enforcement: Several commenters stated that the proposed new and 
modified NWPs did not mention enforcement. These commenters are 
concerned that the terms and limits of the NWPs may be largely ignored 
unless enforcement is specifically addressed in the text of the NWPs. 
Another commenter said that the discussion of the Corps data collection 
procedures did not address how many enforcement actions were taken on 
projects that violated NWP terms and conditions. A number of commenters 
expressed concern that the requirements for on-site avoidance and 
minimization are not enforced. Several commenters believe there is a 
lack of monitoring and enforcement of general permits, including NWPs.
    Enforcement of Corps permits, including NWPs, is addressed in 33 
CFR Part 326. District engineers use discretion to enforce non-
compliance with the terms and conditions of the NWPs, including any 
regional conditions or case-specific conditions. Although the 
discussion of the Corps data collection procedures did not specifically 
address enforcement activities, these activities are included in our 
data collection systems. We conduct compliance reviews to determine if 
permittees do the work in accordance with NWP authorizations, including 
any requirements for avoidance and minimization. Although Corps 
districts cannot conduct compliance reviews for every activity 
authorized by NWPs, they will conduct compliance reviews to the extent 
that their district resources allow. Enforcement activities will be 
prioritized by first investigating suspected violations that are 
reported by citizens and then performing compliance checks on other 
projects.
    Other Issues: Two commenters believe that the proposed new and 
modified NWPs infringe upon individual property rights and that the 
Corps does not have the authority to require compensatory mitigation 
that is not directly proportional to the adverse effects of the 
authorized work. Several other commenters requested that the Corps 
adopt a separate appeals process for the NWP program, similar to the 
process currently being developed for individual permits. Several 
commenters requested that the Corps implement an appeals process for 
jurisdictional determinations. One commenter requested that all of the 
NWPs include a condition requiring deed restrictions for all remaining 
wetlands on the property. One commenter stated that the proposed NWPs 
are contrary to the Fair Housing Act because the NWPs make it more 
difficult to build affordable housing.
    For certain types of activities, the proposed new and modified NWPs 
provide property owners and project proponents with an efficient means 
of obtaining the authorizations necessary to comply with Section 404 of 
the Clean Water Act and Section 10 of the Rivers and Harbors Act, 
provided those activities result in minimal adverse effects on the 
aquatic environment, individually or cumulatively. The NWPs allow 
property owners to use their land in compliance with these Federal 
laws. District engineers can require compensatory mitigation that is 
necessary to offset the losses of waters of the United States and 
ensure that the authorized work, with compensatory mitigation, results 
in minimal adverse effects on the aquatic environment.
    We believe that it is unnecessary to develop a separate appeals 
process for the NWP program. It is important to recognize that the NWPs 
are optional permits. If a permittee does not want to comply with the 
terms and conditions of the NWP authorization, he or she can request 
authorization through the individual permit process. If the prospective 
permittee objects to the terms and conditions of the individual permit 
or is denied an individual permit, then he or she could use the 
regulatory appeals process, once it is implemented. We are not certain 
when an appeals process for jurisdictional determinations will become 
effective.
    We cannot condition the NWPs to require deed restrictions on all 
remaining wetlands on the property for a particular project, unless the 
deed restriction is for a compensatory mitigation requirement that is 
fulfilled through the preservation of wetlands on the property. If 
there are remaining wetlands on the property after the completion of 
the authorized work, the landowner must obtain another Section 404 
permit to do any further work on the property that involves discharges 
of dredged material into waters of the United States. Requiring a deed 
restriction for all remaining waters of the United States on the 
property may be considered as a taking of private property, unless the 
waters to be protected by the deed restriction are used to satisfy a 
compensatory mitigation requirement.
    We do not agree that the proposed new and modified NWPs violate the 
Fair Housing Act. The proposed NWPs will provide developers with an 
expedited permit process that authorizes activities in waters of the 
United States that have minimal adverse effects on the aquatic 
environment. Although the proposed new and modified NWPs contain 
conditions that provide additional protection for the aquatic 
environment, which may increase costs for some builders, we still 
believe that the NWPs are a cost-effective means of complying with the 
Clean Water Act. It is important to remember that NWPs and other 
general permits are optional permits, and if the project proponent does 
not want to comply with all terms and conditions of the NWP, then he or 
she can apply for an individual permit.
    One commenter requested that the new NWPs authorize water 
impoundments and other water development activities that have minimal 
adverse effects. Another commenter stated that the NWPs should 
authorize the construction of water diversion, storage, and reuse 
facilities. Another commenter suggested that NWP 16 requires revision 
because the quality of return water from the contained upland disposal 
site should be addressed through Section 402, not Section 401, of the 
Clean Water Act.
    During the development of the new NWPs to replace NWP 26, we found 
that the use of NWP 26 to authorize discharges of dredged material into 
waters of the United States for the construction of water impoundments 
and water diversion, storage, and reuse facilities was not widespread 
across the country. We believe that it is more appropriate for Corps 
districts to develop regional general permits for these activities, 
where the construction of impoundments occurs regularly with minimal 
adverse effects on the aquatic environment. The citation in NWP 16 to

[[Page 39280]]

Section 401 of the Clean Water Act is correct, because the runoff or 
overflow from a contained land or water disposal area has been defined 
as a ``discharge of dredged material,'' which requires a Section 401 
water quality certification (see 33 CFR Part 323.2(d)).

General Comments on October 14, 1998, Federal Register Notice

    Many commenters were generally in favor of the proposed 
restrictions on NWP activities within the 100-year floodplain, 
designated critical resource waters, and impaired waters published in 
the October 14, 1998, Federal Register notice, but stated that the 
proposed changes still do not provide enough environmental protection 
and further restrictions on the NWPs are needed. A large number of 
commenters objected to the proposed additional restrictions, stating 
that the proposal contained little factual basis, the proposal was too 
vague to allow meaningful comment, or the proposal was unsupported 
because it did not contain an analysis of the potential effects it 
would have on the regulated public. Several commenters said that this 
proposal was based on an inadequate administrative record and that 
there is little or no documentation supporting the need for these 
additional restrictions. These commenters requested that the Corps 
demonstrate that the relevant factors have been considered when it 
makes its final decision concerning these restrictions and supplement 
its record to justify the need for these limitations if they are 
adopted. A few commenters requested that the Corps conduct an analysis 
of the effects of the proposed additional restrictions including: (1) 
The land area affected by the proposal; (2) the environmental benefits; 
(3) the costs to the regulated public, including the cost of compliance 
and potential delays; and (4) the workload implications to the Corps 
and other agencies. Many of these commenters stated that the proposed 
restrictions would be too burdensome to the regulated public, with few 
tangible added environmental benefits. Other objections expressed by 
many commenters are that the proposed restrictions would result in more 
activities requiring individual permits, they would remove any 
streamlining from the permit process provided by the NWPs, and they 
would result in increased costs and delays to the regulated public.
    The NWP restrictions proposed in the October 14, 1998, Federal 
Register notice were intended to solicit comments from the public to 
provide the Corps with information regarding their effects on the 
regulated public, problems with implementation of the proposed 
restrictions, how to identify the areas that should be subject to the 
restrictions, and to which NWPs the restrictions should apply. As 
discussed below, we have thoroughly evaluated all of the comments 
received in response to the October 14, 1998, Federal Register notice 
and have made some changes to the proposed restrictions based on those 
comments. These additional NWP restrictions could create substantial 
burdens for the regulated public, because many project proponents will 
be required to apply for an individual permit or provide additional 
information to demonstrate compliance with these new NWP conditions. We 
believe that the proposed new restrictions will result in better 
protection of the aquatic environment and are necessary to address 
certain public interest factors, such as flood hazards, floodplain 
values, and high value waters.
    A couple of commenters requested that the Corps provide the public 
with another opportunity to comment on the proposed restrictions, based 
on information provided by comments received in response to the October 
14, 1998, Federal Register notice. One commenter stated that the 
proposal violates the Unfunded Mandates Reform Act by not conducting a 
regulatory assessment for each proposed restriction. Another commenter 
believes that the proposal is contrary to Section 404(e)(2) of the 
Clean Water Act, which requires a public hearing before revoking or 
modifying general permits.
    Because of the modified public participation process the public 
has, with this Federal Register notice, another opportunity to comment 
on the proposed restrictions, with more complete information to 
evaluate those restrictions. Since the proposed restrictions may be 
implemented as NWP general conditions and are not new regulations, we 
are not required to conduct a regulatory assessment pursuant to the 
Unfunded Mandates Reform Act. The proposed restrictions do not 
substantially change the NWPs themselves, so we are not required to 
conduct a public hearing in accordance with Section 404(e)(2) of the 
Clean Water Act.
    A number of commenters stated that the goals of the proposed 
additional NWP restrictions can be achieved through other means, 
instead of establishing national conditions for the NWP program. These 
commenters believe that the use of existing NWP general conditions, 
regional conditions, revocation of NWPs in certain geographic regions, 
preconstruction notifications, avoidance and minimization requirements, 
and discretionary authority are adequate to ensure that the NWPs do not 
authorize activities with more than minimal adverse effects to 
designated critical resource waters and impaired waters. Examples of 
general NWP requirements cited by some of these commenters include the 
establishment and maintenance of vegetated buffers adjacent to open 
waters and streams, water quality management plans, stormwater 
management, maintenance of water flows, and compensatory mitigation. 
Some commenters said that the proposed restrictions are more 
appropriately handled by State and/or local governments. Several 
commenters stated that the proposed limitations should be done through 
regional conditions instead of the NWP general conditions.
    We agree that some of the goals of proposed restrictions can also 
be achieved through some of these means, but to ensure that concerns 
for floodplains, impaired waters, and designated critical resource 
waters are addressed consistently across the country, we believe that 
these restrictions should be implemented as NWP general conditions.
    Many commenters objected to the proposal because terms such as 
``critical resource waters'' and ``impaired waters'' were not defined. 
Other commenters based their objections on estimates that the proposed 
restrictions would exclude the use of NWPs from the approximately 40% 
of the Nation's waters that are considered impaired and the 8% of the 
land area of the continental United States that is within the 100-year 
floodplain. One commenter believes that the proposed restrictions are 
unlikely to result in a net increase in wetlands or improve water 
quality.
    One of the objectives of the October 14, 1998, Federal Register 
notice was to solicit public comment on definitions for these terms and 
criteria to identify critical resource waters and impaired waters. We 
received many recommendations to help us identify those waters 
nationally. Each of the proposed restrictions on the NWP program are 
discussed below in separate sections. The intent of the proposed 
restrictions is to better protect the aquatic environment, not to 
produce a net increase in wetlands.
    A large number of commenters supported the Corps decision to allow 
public comment on the final NWPs and final Corps regional conditions. A 
couple of commenters requested a 60-day comment period instead of a 45-
day

[[Page 39281]]

comment period. Two commenters asked if the Section 401 agency will 
have another opportunity to evaluate any changes to the NWPs that may 
occur as a result of comments received in response to that Federal 
Register notice. These commenters stated that the 401 agency should 
have another period of review to make new Section 401 determinations. 
Another commenter stated that 60 days is insufficient for Tribes to 
make Section 401 or CZM determinations on the new NWPs because EPA must 
approve the Tribes' application to administer Section 401 water quality 
standards and approve those standards.
    We believe that 45 days is an adequate amount of time for the 
public to comment on the draft new and modified NWPs and Corps regional 
conditions because of the previous opportunities for public comment. 
Because of the changes to the issuance process for the proposed new and 
modified NWPs, the 401 and CZMA agencies will make their determinations 
based on final NWPs and Corps regional conditions, since those NWPs and 
regional conditions will be issued before the final 60-day WQC/CZMA 
determination period begins. If a Tribal agency does not currently have 
EPA approval to administer Section 401 water quality standards or EPA 
has not yet approved their water quality standards, then the agency 
that currently has Section 401 authority must make the determination.

Withdrawal of NWP B

    In response to the October 14, 1998, Federal Register notice 
announcing the Corps withdrawal of the proposed NWP B for master 
planned development activities, a large number of commenters expressed 
their support for the withdrawal of that proposed NWP. On the other 
hand, many commenters objected to the withdrawal of NWP B. A number of 
commenters believe that the Corps did not consider all comments 
received in response to the July 1, 1998, Federal Register notice and 
that the decision to withdraw NWP B was premature. These commenters 
stated that the Corps should have announced its decision to withdraw 
NWP B when the other proposed NWPs are issued. Several of these 
commenters requested that the Corps provide documentation explaining 
this decision. Several commenters recommended that the Corps repropose 
NWP B.
    We fully considered all comments received in response to the 
proposal to issue NWP B for master planned development activities. The 
decision to withdraw NWP B from the proposed new and modified NWPs was 
discussed in the October 14, 1998, Federal Register notice, but we will 
provide further detail below.
    One of the most important factors in the decision to withdraw NWP B 
is the difficulty in providing a clear, easy to understand, definition 
for the term ``Master Planned Development,'' to be used in the context 
of the NWP. Without a clear definition of this term, there will be much 
confusion for the Corps and the regulated public concerning which 
developments could be authorized by this NWP. The comments received in 
response to the July 1, 1998, Federal Register notice provide ample 
evidence of the potential problems with implementing this NWP, because 
of the difficulty in producing a definition that is easily understood. 
Many commenters believe that any type of master planned development, 
particularly those approved by State or local agencies, would qualify 
for NWP B. This is simply an incorrect assumption which emphasized the 
difficulties in implementing this NWP. The intent of NWP B was to 
authorize developments that are designed, constructed, and managed to 
conserve the functions and values of waters of the United States on the 
project site. For these developments, the aquatic environment receives 
equal consideration to the development, and the development is designed 
to protect the local aquatic environment. We may repropose NWP B when 
we have formulated a definition that better supports the intent of the 
NWP and have resolved other concerns associated with the proposed NWP.

Limiting the Use of NWPs Within the 100-Year Floodplain

    In the October 14, 1998, Federal Register, we proposed to prohibit 
the use of the new and modified NWPs to authorize permanent, above-
grade wetland fills in the 100-year floodplain as mapped by the Federal 
Emergency Management Agency (FEMA) on its Flood Insurance Rate Maps. We 
also requested comments regarding the applicability of this restriction 
to existing NWPs, as well as the proposed new and modified NWPs.
    Nearly all of the correspondence received in response to the 
October 14, 1998, Federal Register notice commented on this proposed 
restriction. Most of the proponents stated that the restriction should 
be expanded to apply to all 100-year floodplains, not just the 100-year 
floodplains mapped by FEMA, because further restriction is necessary to 
safeguard wetlands for protection against floods. One commenter said 
that the condition should be expanded to include riparian buffers of 
300 feet from all rivers and streams and should address any uses of 
NWPs in these areas, not merely above-grade fills in waters of the 
United States. A few of the commenters recommended specific NWPs to be 
included in this condition. Collectively, every NWP was recommended for 
inclusion. Many commenters objecting to the proposed restriction 
included State and local flood control agencies that voiced their 
concern that essential public facilities may need to be sited within 
the floodplain in order to properly function. They stated that all 
municipalities need the ability to build and maintain their urban 
drainage infrastructure without undue delay and expense so that it 
operates as originally designed for flood control and/or water quality 
enhancement purposes. Specifically, they said that the use of NWPs 3 
and 31 to maintain these facilities should be exempt from this 
condition.
    We are proposing to add General Condition 27 to the NWPs to 
restrict or prohibit the use of NWPs 12, 14, 21, 29, 39, 40, 42, 43, 
and 44 to authorize permanent, above-grade fills in waters of the 
United States within the 100-year floodplain. For these NWPs, 
prospective permittees must notify the District Engineer in accordance 
with General Condition 13. For NWPs 21, 29, 39, 40, 42, 43, and 44, the 
notification must include documentation that the proposed project will 
not involve discharges of dredged or fill material into waters of the 
United States resulting in permanent, above-grade fills in waters of 
the United States within the FEMA-mapped 100-year floodplain. If the 
FEMA map is out of date or the 100-year floodplain is not mapped, the 
documentation should be from the local floodplain authority. This 
general condition is not restricted to 100-year floodplains mapped by 
FEMA on its Flood Insurance Rate Maps. Instead, this general condition 
would apply to all 100-year floodplains, except in 100-year floodplains 
at the point in the watershed where the drainage area is less than 1 
square mile. In those areas where no FEMA maps exist, or the FEMA maps 
are out-of-date, the prospective permittee must submit documentation to 
the District Engineer from the local official with authority to issue 
development permits for activities in the 100-year floodplain that the 
proposed work is outside of the 100-year floodplain.
    Proposed General Condition 27 also contains a presumption that NWP 
12 and 14 activities resulting in permanent, above-grade fills in 
waters of the United States within the 100-year floodplain

[[Page 39282]]

will cause more than minimal adverse effects. However, this presumption 
is rebuttable and the proposed work can be authorized by NWPs 12 or 14 
if the prospective permittee clearly demonstrates to the District 
Engineer that the proposed work and associated mitigation will not 
decrease the flood-holding capacity of the waterbody and will not cause 
more than minimal changes to the hydrology, flow regime, or volume of 
waters associated with the 100-year floodplain. The documentation 
rebutting this presumption must include proof that FEMA, or a state or 
local floodplain authority through a licensed professional engineer, 
has approved the proposed project and provided a statement that the 
project does not increase flooding or more than minimally alter 
floodplain hydrology or flow regimes.
    Expanding proposed General Condition 27 to prohibit the use of all 
NWPs within the 100-year floodplain, regardless of whether or not the 
authorized activity would result in above-grade wetland fills, would 
unnecessarily prohibit NWP activities that have little or no effect on 
floodplain functions or values. While a 300-foot buffer may be within 
the 100-year floodplain of some waterbodies, this would be an excessive 
requirement for waterbodies with narrow floodplains. We believe that 
certain NWP activities which result in permanent, above-grade fills in 
waters of the United States within the 100-year floodplain have the 
potential to impact water quality, especially during flood events, and 
therefore should be subject to the restrictions of this condition. We 
concur with the flood control agencies contentions that municipalities 
need the ability to build and maintain their urban drainage 
infrastructure without undue delay and expense so that those facilities 
operate as originally designed for flood control and/or water quality 
enhancement purposes. Lacking general support for including the 
existing NWPs in this proposed condition, and acknowledging that not 
all activities authorized by the existing NWPs will result in more than 
minimal adverse effects to 100-year floodplains, we are proposing to 
include NWPs 12, 14, 21, 29, and 40 in General Condition 27, as well as 
NWPs 39, 42, 43, and 44. Furthermore, we have determined that the 
proposed NWP 41, which authorizes reshaping existing drainage ditches, 
would not result in any appreciable adverse impacts to the floodplain 
and are proposing to exclude this NWP from General Condition 27.
    Many commenters stated that FEMA maps are inaccurate and 
incomplete, mapping mostly urban areas and leaving rural areas 
unprotected. Others were concerned about what information will be used 
to determine whether a project is within the 100-year floodplain. Many 
commenters also stated that the condition will result in greatly 
increased numbers of individual permits and that the area of land 
encompassed by the 100-year floodplain prohibition is so extensive as 
to make use of NWPs with this condition extremely prohibitive. 
Additionally, the Corps has provided no evidence to support their 
notion that use of any particular NWP to authorize fills in floodplains 
has contributed to, or threatens to contribute to, the frequency or 
severity of flood events. They state the burden is on the Corps to 
develop a factual record to justify its proposed regulatory actions.
    FEMA maps are available for review at local FEMA or Corps offices 
for determining the applicability of this condition to the applicant's 
proposed project. We agree that applying General Condition 27 to NWPs 
12, 14, 21, 29, 39, 40, 42, 43, and 44, will significantly increase the 
number of individual permit applications processed by the Corps. 
Additionally, we have determined that this condition covers 
approximately 55 million acres of wetlands which fall within the 100-
year floodplain, a large amount of wetlands regulated under Section 404 
of the Clean Water Act.
    In response to the July 1, 1998, Federal Register notice, FEMA 
provided the following comments: (1) the replacement NWPs cover a much 
greater geographical area than the existing NWP 26 and therefore need 
to consider project impacts within the 100-year floodplain; (2) when 
flood capacity within the floodplain is diminished due to authorized or 
unauthorized construction in wetland areas, flooding in other areas is 
likely to increase; and (3) it is the responsibility of the Corps under 
Executive Order 11988, entitled Floodplain Management, to evaluate all 
activities in or affecting floodplains. Based upon these premises, the 
Corps feels it is necessary to impose this condition on those specific 
NWPs, which could potentially impact the flood capacity of the 
floodplains.
    Most of those opposed to the proposed general condition stated that 
it does not fulfill the congressional intent to implement a streamlined 
permitting process for activities resulting in minimal adverse 
environmental effects on the aquatic environment. They also state that 
the Corps is not authorized by Congress to become a regulatory 
authority with regards to controlling floodplain activities. A large 
number of commenters stated that the condition provides for dual 
regulation of the 100-year floodplains, through the Corps and FEMA. 
These commenters said that floodplain management, which FEMA 
administers, and water quality management, administered by the Corps 
under Section 404 of the Clean Water Act, should be regulated 
separately. A couple of commenters stated that if FEMA wants to 
restrict construction in floodplains to reduce flood damage then they 
should do so under their own authority.
    We believe that the proposed condition does fulfill the 
congressional intent inasmuch as the NWP process provides for a less 
rigorous review of proposed projects with decisions being rendered in a 
much more timely manner than the individual permit process. Also, 
conditioning the NWP fulfills the requirement to minimize adverse 
impacts to the aquatic environment. Additionally, in accordance with 
Executive Order 11988, the district engineers are directed to avoid 
authorizing floodplain developments whenever practicable alternatives 
exist outside of the floodplain. We believe that we are authorized to 
regulate waters of the United States for water quality management and 
many wetlands within the 100-year floodplain fall within the 
``adjacency clause.'' Therefore, wetlands in the 100-year floodplain 
are within the Corps regulatory jurisdiction. To reiterate, the Corps 
recognizes that it does not regulate any activity in the 100-year 
floodplain that does not occur within a water of the United States; 
these upland areas would be regulated by FEMA. It is not the intent of 
the Corps to duplicate FEMA and State and local flood control agencies, 
but rather to rely on these agencies to assert their jurisdiction to 
minimize impacts to aquatic resources within the 100-year floodplain.
    Most of the commenters indicated that the proposed condition is 
overly restrictive, unnecessary, and causes the process to be 
burdensome to both Corps regulators and the taxpayers. These commenters 
also indicated that it is both expensive and time-consuming without 
providing commensurate benefits for wetlands. Many said the proposal is 
not warranted and obviated by the many environmentally protective 
conditions already in place, including State and local regulations. 
Many of the opponents included state and local transportation 
departments who indicated that this condition would prevent them from 
fulfilling their mandate of ensuring public safety and that widening 
roadways, some within

[[Page 39283]]

wetlands within the 100-year floodplain, is often required and the 
condition would put an unnecessary burden on their departments while 
delaying their projects. They recommended exempting NWP 14 from this 
condition. Few of the objectors recommended which specific NWPs, 
existing or proposed replacements, should be excluded from this 
condition. Collectively, every NWP was recommended for exclusion.
    To reiterate, in accordance with Executive Order 11988, district 
engineers should avoid authorizing floodplain developments whenever 
practicable alternatives exist outside of the floodplain. The proposed 
General Condition 27 prohibits the use of certain NWP activities that 
could result in more than minimal adverse impacts to the aquatic 
environment, as well as the 100-year floodplain. We believe that, with 
proper planning, transportation departments will have ample time to 
attain a permit through the individual permit process without undue 
delays and excessive risks to public safety. In the event of a ``wash-
out'' due to a storm event, NWP 3 can be used to repair public and 
private roadways.

Limiting the Use of the NWPs in Designated Critical Resource Waters

    We proposed in the October 14, 1998, Federal Register notice, to 
limit the use of NWPs in critical resource waters designated by State 
or Federal agencies. Many of the comments we received addressed 
proposed restrictions on the applicability of the NWPs in critical 
resource waters. Most of those comments generally supported the 
adoption of such restrictions, and they focused on suggestions for 
defining critical resource waters. These suggestions advocated the 
inclusion of the following waters as critical resource waters: waters 
that have any kind of special value designation by Federal, State, or 
local governments; sensitive and specially valuable waters; habitat of 
endangered, threatened, or sensitive species; source waters for 
drinking water; groundwater recharge zones; rare and irreplaceable 
wetlands that cannot be mitigated with current technologies; and waters 
declared as impaired under Section 303(d) of the Clean Water Act. We 
have considered each of these recommendations, as discussed below.
    Waters that have any kind of special value designation by Federal, 
State, or local governments: For waters that have received a Federal 
designation of special value, we agree that the use of NWPs should be 
restricted to the extent that their applicability is reasonably certain 
to jeopardize any essential functions which confer the recognized 
special value to these waters. We are proposing to add a new NWP 
general condition (General Condition 25) to address the use of NWPs in 
designated critical resource waters. Proposed General Condition 25, 
entitled Designated Critical Resource Waters, prohibits the use of NWPs 
7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 for any 
activity in the following critical resource waters including wetlands 
adjacent to these waters: NOAA-designated marine sanctuaries, National 
Estuarine Research Reserves, National Wild and Scenic Rivers, critical 
habitat for Federally-listed threatened and endangered species, coral 
reefs, State natural heritage areas, or outstanding national resource 
waters officially designated by the State where those waters are 
located. Outstanding national resource waters and other waters having 
particular environmental or ecological significance must be officially 
designated through an official State process (e.g., adopted through 
regulatory or statutory processes, approved through State legislation, 
or designated by the Governor). In those circumstances where a 
waterbody has been designated by the State, the District Engineer will 
publish a public notice advising the public that such waters will be 
added to the list of designated critical resource waters. The District 
Engineer may, on his own, designate critical resource waters after 
notice and opportunity for public comment. For activities authorized by 
NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 
and 38, proposed General Condition 25 requires the prospective 
permittee to notify the District Engineer in accordance with General 
Condition 13 for any activity proposed in these designated critical 
resource waters, including adjacent wetlands. This general condition 
also prohibits discharges in designated critical habitat for Federally-
listed endangered or threatened species unless the activity complies 
with General Condition 11 and the U.S. FWS or the NMFS has concurred in 
a determination of compliance with this condition.
    We believe that special value designations promulgated solely by 
State or local agencies without the approval of the governor or State 
legislature are not appropriate bases for the imposition of 
restrictions on the use of these Federal permits. We believe that 
restrictions which are necessary to support the other State and local 
special value designations should be effected through relevant State 
and local processes.
    Several commenters suggested that Wild and Scenic Rivers, blue-
ribbon trout fisheries, and American Heritage Rivers were all examples 
of waters that have been designated as having special value, and that 
these particular categories of waters should be categorically excluded 
from NWP eligibility. Since there is no official Federal designation of 
any waters as blue-ribbon trout fisheries, we do not agree that these 
waters should be excluded from this Federal program. The NWP general 
conditions already impose restrictions on NWP eligibility in waters 
that are components of Wild and Scenic River Systems, and on any river 
officially designated by Congress as a ``study river'' for possible 
inclusion in such systems. Since this general condition imposes 
restrictions that achieve the goals of adequately protecting special 
values, and of maximizing NWP utility, we do not believe that further 
restriction is appropriate or necessary. American Heritage Rivers may 
be likely candidates for inclusion as critical resource waters but it 
is difficult to identify any possible adverse effect that would result 
from NWP eligibility in these waters. It is particularly difficult to 
identify such effects from a national perspective.
    We believe that the imposition of any restriction imposed to 
protect Critical Resource Waters must be precise in its scope, in order 
to provide all reasonable and necessary protection of the factors 
conferring special value, without unnecessarily limiting the utility of 
the NWPs. Since we believe that these two goals are equally important, 
we have concluded that it would be too broad a restriction to eliminate 
the applicability of any NWP in special value waters without a prior 
Corps determination that the NWP in question posed some reasonable 
likelihood of adverse effect on the recognized special value. Our 
consideration of the comments received and our concern about undue 
restrictions on the NWPs, lead us to conclude that we are unable to 
make additional determinations from a national perspective. As a 
result, we believe that any such determination of other types of waters 
would most appropriately be made at the district or, in some cases, at 
the division level, and that as a practical matter, the necessity of 
further restriction to protect waters that have a Federal special value 
designation must be determined by the Corps district or division and 
implemented as regional conditions on the NWPs, as necessary.
    Sensitive and specially valuable waters: There is no official 
Federal designation of any waters as sensitive or

[[Page 39284]]

specially valuable waters, therefore there is no Federal definition of 
such waters. We believe that the inclusion of such arbitrary terms in 
the definition of Critical Resource Waters would be counterproductive, 
and we do not agree that introduction of additional ambiguity is 
appropriate. We further believe that the use of any NWP in waters 
identified by the Corps, on a case-by-case basis, as having some 
particular sensitivity or special value that is susceptible to 
degradation by the activity authorized by the NWP, can be adequately 
protected by the Corps use of its discretionary authority to require an 
individual permit review, as necessary.
    Habitat of endangered, threatened, or sensitive species: Federal 
protection for the critical habitat of Federally-listed threatened and 
endangered species is provided in all Corps permit actions through 
compliance with the requirements of the Endangered Species Act, with 
the regulations promulgated pursuant to that Act, and through NWP 
General Condition 11. General Condition 25 contains a provision stating 
that discharges are not authorized in designated critical habitat for 
Federally listed threatened or endangered species unless the activity 
complies with General Condition 11 and the U.S. Fish and Wildlife 
Service or the National Marine Fisheries Service has concurred in a 
determination of compliance with this condition. Since ``sensitive 
species'' is a term that is not defined in the Endangered Species Act 
or in any other applicable Federal law, we believe that including the 
habitat of such ``sensitive species'' would promote confusion rather 
than provide clarity in the definition of critical resource waters, and 
we do not believe that such inclusion is appropriate.
    Source waters for drinking water: We do not believe that any of the 
activities authorized by the NWPs pose any inherent threat to drinking 
water or to the source waters for drinking water, but it may be 
possible for such adverse effects to occur in certain circumstances. 
However, we believe that the specification of all such source waters as 
critical resource waters would impose a restriction on the utility of 
the NWPs that is not warranted by the limited extent of potential 
adverse effects. In light of this, we believe it is more appropriate to 
rely on the Corps use of its discretionary authority, on a case-by-case 
basis, to ensure against adverse effects on drinking water.
    Groundwater recharge zones: We agree that any activity that 
significantly impairs groundwater recharge functions of wetlands must 
be avoided. However, such significant impairment does not inherently 
result from the kinds of activities authorized by the NWPs. As such, we 
believe that any restriction on the authorization of an activity should 
be based on the effects that are expected to occur as a result of a 
specifically proposed activity. Since we do not expect the majority of 
activities authorized by the NWPs to adversely affect groundwater 
recharge, we believe that our ability to assert discretionary authority 
to require an individual permit in lieu of any NWP, for cause, provides 
ample protection for groundwater recharge zones.
    Rare and irreplaceable wetlands that cannot be mitigated with 
current technologies.
    As with many of the other types of wetlands suggested for inclusion 
as critical resource waters, the term ``rare and irreplaceable wetlands 
that cannot be mitigated with current technologies'' is undefined, and 
the general nationwide specification of such wetlands as critical 
resource waters would be a continuing source of debate and, therefore, 
impractical. However, we acknowledge that many wetlands systems may 
qualify as ``rare and irreplaceable'' because of their location in the 
landscape of a particular region. We believe that such locally rare and 
irreplaceable wetlands are critical resource waters because of their 
local importance. We believe that as such wetlands are recognized by 
Corps district and division offices, the revocation of any NWP that 
poses a threat to these systems, or the imposition of regional 
conditions to avert such threats, should be considered.
    Waters declared as impaired under Section 303(d) of the Clean Water 
Act: ``Impaired waters,'' as defined in Section 303(d) of the Clean 
Water Act, are addressed as a separate issue in the next section of 
this Federal Register notice, and as such, we do not believe it is 
appropriate to include these waters in the definition of critical 
resource waters.
    Proposed General Condition 25 prohibits the use of NWPs 7, 12, 14, 
16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 for any activity in 
certain Federally- and State-designated critical resource waters, 
including wetlands adjacent to those waters, with the exceptions 
discussed above. For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 
30, 33, 34, 36, 37, and 38, notification is required for activities in 
designated critical resource waters and adjacent wetlands, to allow the 
district engineer to determine if the proposed work will result in more 
than minimal adverse effects on those waters. Activities authorized by 
the NWPs not listed in General Condition 25 would not be subject to 
these requirements. Corps districts may also consider the use of 
regional general permits for those activities prohibited by General 
Condition 25, if the District Engineer determines after public notice 
and opportunity for public comment that on a regional basis, such 
activities will not result in more than minimal adverse effects on the 
aquatic environment, individually or cumulatively.

Limiting the Use of the NWPs in Impaired Waters

    In the Federal Register notice published on October 14, 1998, we 
requested comments on restricting or prohibiting the use of the NWPs in 
impaired waters, including how to identify impaired waters for the 
purposes of the NWPs, and which NWPs should be subject to this 
limitation. We received a large number of comments supporting the 
proposed limitation and a large number of comments objecting to the 
proposed limitation.
    Some commenters stated that the proposed exclusion should apply to 
the use of NWPs in all wetlands and other waters within the watersheds 
of impaired waters. Other commenters recommended that the use of NWPs 
should be excluded from wetlands or waters upstream or adjacent to 
impaired waters. Two commenters stated that NWPs should be excluded 
from use in wetlands in impaired waters, even if the historic loss of 
wetlands within the watershed is not the cause of impairment, because 
those wetlands are of high value in that watershed. In contrast, 
several other commenters agreed with the Corps proposal to restrict the 
use of NWPs only in those watersheds that are considered impaired as a 
result of historic wetland losses. These commenters recommended that 
the exclusion apply only to ``State-designated impaired waters which 
are determined to be impaired as a result of the historic loss of 
wetlands.'' Several commenters supported the proposed exclusion, 
provided the restriction applies only to those projects that will 
result in further degradation of the waterbody based on the applicable 
303(d) parameter; if the proposed work will have no effect on the 
303(d) parameter, then the project could be authorized by NWP.
    In the October 14, 1998, Federal Register notice, we stated that 
the impairment of certain open waters such as lakes, rivers, and 
streams is directly related to the historic loss of wetlands in the 
watershed. Although not

[[Page 39285]]

explicitly stated in the October 14, 1998, Federal Register notice, the 
intent of the proposal was to restrict the use of NWPs in waterbodies 
that are impaired due to the loss of wetlands. This remains our intent, 
but we are also proposing to add several other causes of impairment 
that will be considered as part of the restriction. The additional 
causes of impairment include: nutrients, organic enrichment resulting 
in low dissolved oxygen concentration in the water column, 
sedimentation and siltation, habitat alteration, suspended solids, flow 
alteration, and turbidity. These additional sources of impairment may 
be related to activities regulated under Section 404 of the Clean Water 
Act. We are proposing to incorporate this restriction into the NWP 
program as General Condition 26, entitled Impaired Waters.
    We believe that discharges of dredged or fill material into 
impaired waters of the United States and adjacent wetlands may cause 
further impairment of those waters. Proposed General Condition 26 
prohibits the use of NWPs to authorize discharges resulting in the loss 
of greater than 1 acre of impaired waters of the United States, 
including wetlands adjacent to those waters, except for activities 
authorized by NWP 3. Activities authorized by NWP 3 that occur in 
impaired waters and adjacent wetlands require notification to the 
District Engineer in accordance with General Condition 13, who will 
determine if the proposed work will result in further impairment of the 
waterbody. For activities resulting in the loss of 1 acre or less of 
impaired waters of the United States, including adjacent wetlands, the 
prospective permittee must notify the District Engineer in accordance 
with General Condition 13 and the work authorized by NWP must not 
result in further impairment of the waterbody. The notification must 
include a statement from the permittee that clearly explains how the 
proposed work, excluding mitigation, will not further impair the 
waterbody. The District Engineer will determine if the prospective 
permittee has clearly demonstrated that the proposed work will not 
result in further impairment of the waterbody. For discharges resulting 
in the loss of greater than \1/4\ acre of impaired waters, including 
adjacent wetlands, the District Engineer will coordinate with the State 
401 agency in accordance with the procedures in paragraph (e) of 
General Condition 13. The District Engineer will consider any comments 
received from the State 401 agency to determine if the proposed work 
will not result in further impairment of the listed waterbody. If the 
District Engineer determines that the proposed activity will not result 
in further impairment of the waterbody by providing additional inputs 
of the listed pollutant (i.e., nutrients, organic enrichment resulting 
in low dissolved oxygen concentration in the water column, 
sedimentation and siltation, habitat alteration, suspended solids, flow 
alteration, turbidity, and loss of wetlands), then the project can be 
authorized by NWP if it meets all of the other terms and conditions of 
the NWPs. If the District Engineer determines that the proposed 
activity will result in further impairment of the waterbody by 
contributing more of the listed pollutant to the impaired waterbody, 
then the project cannot be authorized by NWP and the project proponent 
must apply for authorization either through the individual permit 
process or obtain authorization through an appropriate regional general 
permit, if available.
    For the purposes of this proposed general condition, impaired 
waters are those waters of the United States that have been identified 
by States or Tribes through the Clean Water Act Section 303(d) process 
as impaired due to nutrients, organic enrichment resulting in low 
dissolved oxygen concentration in the water column, sedimentation and 
siltation, habitat alteration, suspended solids, flow alteration, 
turbidity, and the historic losses of wetlands. The Corps will defer to 
states to identify these waters under the Section 303(d) process, 
because states are responsible for implementing Section 303 of the 
Clean Water Act, specifically the Total Maximum Daily Load (TMDL) 
program overseen by EPA. TMDL standards must be approved by EPA after a 
formal public notice and comment period. States must submit lists of 
impaired waters to EPA every two years. The authorized activity itself 
can result in net improvement of the aquatic ecosystem. For example, 
NWP 13 can be used to authorize bank stabilization activities in a 
waterbody that has been identified as impaired due to sedimentation, 
because the bank stabilization activity reduces the amount of sediment 
entering the waterbody, thereby improving water quality. Compensatory 
mitigation can be used to offset losses of waters of the United States 
authorized by NWPs and reduce the sources of pollution causing 
impairment of the local aquatic environment. The establishment and 
maintenance of vegetated buffers adjacent to open and flowing waters is 
a type of compensatory mitigation than can help improve the impaired 
waterbody by restoring aquatic habitat, removing nutrients from surface 
runoff and groundwater flowing into waterbodies, trapping sediments, 
and moderating changes in water temperatures.
    Several commenters believe that the use of NWPs in impaired waters 
is a violation of the Clean Water Act and that individual permits must 
be used instead to authorize Section 404 activities. A number of 
commenters objected to the proposed exclusion because they believe that 
concerns for impaired waters should be addressed by states or Tribes 
under Sections 101(b) and 401 of the Clean Water Act. Several of these 
commenters stated that the proposed exclusion duplicates State efforts 
and is unnecessary for the NWP program, because states currently 
consider the effects of development projects on impaired rivers. A 
number of commenters expressed concern that excluding the use of NWPs 
from impaired waters will result in additional pressures on average 
quality waters.
    The use of NWPs in impaired waters is not a violation of the Clean 
Water Act, particularly when a State, Tribe, or EPA issues a Section 
401 water quality certification either for the NWP itself or for a 
case-specific NWP authorization. If the 401 agency determines that a 
project does not meet the water quality standards of the State or 
Tribe, resulting in further impairment of the waterbody, they can deny 
water quality certification for that particular activity. The 
requirements of proposed General Condition 26 will not place additional 
pressures on impaired waters, because most project proponents are 
unlikely to relocate their projects to areas adjacent to or in 
unimpaired waters. It is important to remember that NWPs are optional 
permits, and the project proponent can apply for authorization through 
the individual permit process if he or she cannot meet the terms and 
conditions of an NWP. They are much more likely to request an 
individual permit for a project rather than relocating the project to 
try to obtain an NWP authorization.
    Many commenters objected to restricting or eliminating the use of 
NWPs in impaired waters. Reasons for their objections include: (1) 
Eliminating the use of NWPs in impaired waters is illogical and will 
not provide any environmental benefits; (2) the Corps does not explain 
how eliminating the use of NWPs in impaired waters will repair or fix 
the impairment; (3) no information is provided in the October 14, 1998, 
Federal Register notice to support that impairment is due to historic 
losses of wetlands in the

[[Page 39286]]

watershed, since few states have identified waters where the impairment 
is due to loss of wetlands; (4) historic wetland loss is an 
insignificant source of impairment for most waterbodies; (5) no clear 
definition of ``impaired waters'' was provided in the October 14, 1998, 
Federal Register notice; (6) many State Section 303(d) lists have not 
been approved by EPA; and (7) the Corps provided no justification for 
making this a Federal exclusion.
    Restricting the use of NWPs in waters that are impaired because of 
nutrients, organic enrichment resulting in low dissolved oxygen 
concentration in the water column, sedimentation and siltation, habitat 
alteration, suspended solids, flow alteration, turbidity, and historic 
losses of wetlands in the watershed will benefit the local aquatic 
environment by preventing additional impairment of the waterbody and 
improving the waterbody through compensatory mitigation and best 
management practices. It is important to note that impaired waters are 
identified by evaluating open waters and segments of streams and 
rivers, not the entire watershed. Proposed General Condition 26 will 
apply only to those waterbodies, or segments of waterbodies, that have 
been assessed by states under the TMDL program. In addition, proposed 
General Condition 26 will apply only to wetlands adjacent to those 
waterbodies or segments of waterbodies. The Corps will not identify 
impaired waterbodies. As more waterbodies are surveyed by states under 
the TMDL program, there may be additional waters subject to General 
Condition 26. In the October 14, 1998, Federal Register notice, we 
requested suggestions for identifying impaired waters, and cited the 
Section 303(d) process as an example. Based on the comments received in 
response to the October 14, 1998, Federal Register notice, we have 
determined that the Section 303(d) program is the most appropriate way 
to identify impaired waters. We can add the requirements of proposed 
General Condition 26 to the NWP program because those requirements are 
directly related to the goals of the Clean Water Act.
    A couple of commenters questioned how the Corps will define the 
phrase ``identified with waters and aquifers that have been identified 
by states as impaired,'' and asked if stream flow data, hydrologic 
data, or geographic proximity will be used as criteria.
    Some commenters said there is no indication as to the number of 
waters that are impaired due to activities authorized by NWPs. Many 
commenters objected to the proposed exclusion, stating that it would 
substantially reduce the amount of geographic area where NWPs could be 
used. Several of these commenters stated that the proposed exclusion 
would prohibit the use of NWPs in 36% of the rivers and 39% of the 
lakes in the United States. Because of the large amount of waters that 
are considered impaired through the Section 303(d) process, a number of 
commenters stated that prohibiting the use of NWPs in impaired waters 
will result in a substantial increase in the number of individual 
permits processed by the Corps, increasing its workload.
    Since proposed General Condition 26 will apply only to activities 
in waterbodies (and wetlands adjacent to those waterbodies) that are 
identified by State Section 303(d) programs as impaired due to 
nutrients, organic enrichment resulting in low dissolved oxygen 
concentration in the water column, sedimentation and siltation, habitat 
alteration, suspended solids, flow alteration, turbidity, and historic 
losses of wetlands in the watershed, and the proposed general condition 
requires that the NWP activity cannot further impair the waterbody, the 
number of activities for which the NWPs cannot be used is not likely to 
be substantial. Therefore, we anticipate only a relatively minor 
increase in the number of activities requiring individual permits as a 
result of proposed General Condition 26. According to EPA's ``National 
Summary of Water Quality Conditions'' for 1996, only 19% of the river 
and stream miles in the United States have been surveyed for TMDLs. For 
other waterbodies, 40% of the lakes, ponds and reservoirs and 72% of 
the square miles of estuaries have been surveyed for TMDLs. Of the 
river miles surveyed, 18% are impaired due to siltation, 14% are 
impaired due to nutrients, 10% are impaired due to oxygen depleting 
substances, 7% are impaired due to habitat alteration, and 7% are 
impaired due to suspended solids. Of the pond, lake, and reservoir 
acres surveyed, 20% are impaired due to nutrients, 10% are impaired due 
to siltation, 8% are impaired due to oxygen-depleting substances, and 
5% are impaired due to suspended solids. For ponds, lakes, and 
reservoirs, habitat alteration was not listed as a source of impairment 
in the 1996 EPA report cited above. Of the square miles of estuaries 
surveyed, 22% are impaired due to nutrients, 12% are impaired due to 
oxygen-depleting substances, and 6% are impaired due to habitat 
alterations. There may be some overlap in these percentages, because 
more than one pollutant may impair a particular waterbody or river 
segment. If, in the future, states identify, through the Section 303(d) 
process, additional waters as impaired due to the causes listed in 
proposed General Condition 26, then those waters and any adjacent 
wetlands will be subject to this general condition.
    A few commenters objected to the reference to aquifers in the 
October 14, 1998, Federal Register notice. Some of these commenters 
stated that Section 404 of the Clean Water Act does not provide the 
Corps with the authority to regulate groundwater. They said that 
regulation of groundwater should be left to the states, who have the 
legal authority. Other commenters requested guidance or definitions to 
identify impaired aquifers.
    We agree that Section 404 of the Clean Water Act does not provide 
us with the authority to directly regulate activities that affect 
groundwater, but since the quality of groundwater is often affected by 
activities in surface waters, we can consider the adverse effects of 
work authorized under Section 404 on water supplies.
    Many commenters discussed potential problems with the proposed 
limitation, especially if the Section 303(d) process is used to 
identify impaired waters for the purposes of the proposed exclusion. A 
large number of commenters stated that waters included on the Section 
303(d) lists for specific water quality criteria are not necessarily 
affected by activities regulated under Section 404 of the Clean Water 
Act. Many commenters recommended that the proposed exclusion should not 
apply to waters that are considered impaired due to toxic discharges, 
nutrient runoff, organic pollutants, fecal coliform, and sediment 
loads. Another commenter objected to the proposed exclusion because 
impairment of waters may be due to activities outside of the watershed 
and not directly in the impaired waterbody. A couple of commenters 
objected to using the Section 303(d) process to identify impaired 
waters because EPA is currently attempting to refine the entire Section 
303(d) program and is planning to issue proposed rules and guidance 
with specific requirements for developing Section 303(d) lists. Another 
objection is that the Section 303(d) lists are subject to review every 
two years, which may result in uncertainty for the regulated public. 
Some commenters oppose the use of Section 303(d) lists because a state 
often uses only one data point to make a Section 303(d) determination 
and the criteria are often applied inconsistently between states. Some 
State lists are better developed

[[Page 39287]]

than others, resulting in inconsistent standards between states.
    The impairment of waterbodies due to nutrients, organic enrichment 
resulting in low dissolved oxygen concentration in the water column, 
sedimentation and siltation, habitat alteration, suspended solids, flow 
alteration, turbidity, and the historic loss of wetlands, may be 
related to activities regulated under Section 404 of the Clean Water 
Act. The requirements of General Condition 26 will ensure that the 
activities authorized by NWPs will not result in further impairment of 
the waterbody, so that the NWPs will authorize only activities with 
minimal adverse effects on the aquatic environment. Impairment due to 
other causes, such as metals, toxic discharges, organic pollutants, and 
fecal coliform, will not be subject to this general condition. We 
recognize that the Section 303(d) lists are subject to change every 2 
years and that many waters have not been surveyed to determine if they 
comply with State TMDL criteria. If additional waters are identified as 
impaired due to the causes listed in General Condition 26, then they 
will be subject to that general condition. We also recognize that there 
may be some inconsistencies between states, but these inconsistencies 
should be resolved by EPA, which provides Federal oversight for the 
Section 303(d) program and its implementation by states.
    A number of commenters proposed alternatives to prohibiting the use 
of NWPs in impaired waters. Several commenters stated that concerns for 
impaired waters should be addressed through either regional conditions, 
case-specific discretionary authority, or revocation of certain NWPs in 
specific geographic areas. Other commenters suggested addressing 
concerns for impaired waters in the same way that the Corps addresses 
endangered species and historic property issues, by adding a general 
condition to the NWPs requiring notification to the District Engineer 
for activities that affect impaired waters and allowing the District 
Engineer to determine if the proposed activity will result in further 
impairment of the waterbody. If the proposed work would result in no 
further impairment of the waterbody, then the activity could be 
authorized by NWP. Another commenter suggested that compensatory 
mitigation could be required for NWP activities to replace lost 
wetlands and increase the acreage of wetlands in the vicinity of the 
impaired waterbody. A few commenters recommended allowing the use of 
NWPs in impaired waters where the authorized activity does not result 
in a permanent loss of pollution control features or does not cause 
permanent adverse effects to water quality, citing as examples stream 
restoration projects, utility line backfills, and temporary impacts to 
waters of the United States. Another commenter stated that the use of 
NWPs in impaired waters should not be restricted or prohibited when the 
objective of the proposed work is to restore wetlands, aquatic habitat, 
or water quality, or to conduct activities that will remove the 
waterbody from the Section 303(d) list.
    We agree that an NWP general condition addressing the use of NWPs 
in waterbodies designated, through the Section 303(d) process, as 
impaired due to nutrients, organic enrichment resulting in low 
dissolved oxygen concentration in the water column, sedimentation and 
siltation, habitat alteration, suspended solids, flow alteration, 
turbidity, and the historic loss of wetlands is appropriate. Proposed 
General Condition 26 requires that activities authorized by NWPs in 
impaired waterbodies and adjacent wetlands will not result in further 
impairment of the waterbody. Compensatory mitigation, if required to 
ensure that the authorized work results in minimal adverse effects on 
the aquatic environment, should also help reduce inputs of the 
pollutants that are causing the impairment. Such compensatory 
mitigation may include: offsetting the authorized loss of wetlands, 
establishing and maintaining a vegetated buffer that reduces the input 
of nutrients, organic matter, and sediments into the waterbody, and 
reestablishing aquatic habitat adjacent to the waterbody. NWP 
activities that restore or enhance impaired waters are not prohibited 
by proposed General Condition 26.
    In response to the October 14, 1998, Federal Register notice, we 
received many suggestions for NWPs that should not be subject to the 
proposed exclusion. Some commenters cited specific types of activities 
that should not be prohibited from NWP authorization in impaired 
waters. One commenter suggested that the exclusion should not apply to 
the maintenance of transportation projects. Other commenters suggested 
that flood control activities and the maintenance of flood control 
projects should be exempt from this exclusion. Some commenters said 
that the exclusion should apply only to those NWP activities that have 
a direct effect on a Section 303(d) parameter.
    We believe that proposed General Condition 26 should apply to all 
NWPs that authorize discharges of dredged or fill material into waters 
of the United States identified as impaired due to the causes listed in 
the general condition. Proposed activities that result in further 
impairment of the listed waterbody or result in the loss of greater 
than 1 acre of impaired waters and adjacent wetlands (except for 
activities authorized by NWP 3 as discussed above) are not authorized 
by NWPs. Prospective permittees are required to notify the District 
Engineer in accordance with General Condition 13, and the District 
Engineer will determine whether or not proposed work will result in 
further impairment of the waterbody. For proposed activities resulting 
in the loss of greater than 1/4 acre of impaired waters and adjacent 
wetlands, the District Engineer will coordinate with the State 401 
agency in accordance with paragraph (e) of General Condition 13. 
Proposed General Condition 26 does not apply to activities in impaired 
waters that are subject only to Section 10 of the Rivers and Harbors 
Act, if there is no related Section 404 activity. Maintenance 
activities for transportation projects and flood control projects that 
do not result in discharges of dredged or fill material are not subject 
to the requirements of proposed General Condition 26.

III. Comments and Responses on Specific Nationwide Permits

3. Maintenance
    In the July 1, 1998, Federal Register notice, the Corps proposed to 
modify this NWP to authorize the removal of accumulated sediments in 
the vicinity of existing structures. We also proposed to authorize 
activities in waters of the United States associated with the 
restoration of uplands lost as a result of a storm, flood, or other 
specific event. These additional activities are authorized by 
paragraphs (ii) and (iii) of the NWP.
    General Comments on this NWP: The original terms and conditions of 
NWP 3 are in paragraph (i) of this NWP. In the July 1, 1998, Federal 
Register notice, we proposed minor changes to the original text of NWP 
3. In the July 1, 1998, Federal Register notice, we proposed to add a 
notification requirement for all work authorized by paragraph (i) of 
the proposed modification of NWP 3 except for the replacement of the 
structure. We also inserted the phrase ``or damaged'' after the word 
``destroyed.'' We also received some comments concerning the provisions 
of NWP 3 as published in the December 13, 1996, issue of the Federal 
Register (61 FR 65874-65922).
    Some commenters recommended removing the PCN requirement from 
paragraph (i) whereas other commenters suggested modifying the NWP to 
require

[[Page 39288]]

PCNs for all activities authorized by NWP 3. Many commenters stated 
that a replacement project generally results in greater impacts than 
repair and rehabilitation activities, but notification should be 
required only if the repair and rehabilitation activity exceeds the 
``minor deviations in the structure's configuration or filled area'' 
provision of the NWP. One commenter stated that it was unclear whether 
repair and rehabilitation activities require notification. We have 
removed the PCN requirement from paragraph (i) of this NWP, since we do 
not believe it is necessary to require notification for the repair, 
replacement, or rehabilitation of a previously authorized structure or 
fill.
    Two commenters suggested that the definition of the phrase ``minor 
deviations in the structure's configuration'' should be made more 
compatible with modern design standards and another suggested that the 
definition of ``currently serviceable'' should be expanded to cover all 
structures which have been destroyed in a catastrophic event, such as a 
hurricane.
    This NWP authorizes repair, rehabilitation, and replacement 
activities with minor deviations necessary to comply with modern design 
standards. Previously authorized structures or fills that have been 
damaged by catastrophic events can also be repaired, rehabilitated, or 
replaced under this NWP. We do not need to change the definition of the 
term ``currently serviceable.''
    General comments addressing this NWP include: (1) Prohibiting its 
use in watersheds with substantial historic aquatic resource losses; 
(2) prohibiting its use in regionally identified tidal waters to ensure 
effective protection of their unique and difficult to replace 
functions; (3) prohibiting its use in certain stream segments to ensure 
minimal cumulative adverse effects; (4) prohibiting its use in 
watersheds identified as having water quality problems; and (5) 
requiring the permittee to perform the work during low flow conditions.
    We believe that these restrictions are unnecessary since NWP 3 
authorizes maintenance activities, which are unlikely to result in more 
than minimal adverse effects on the aquatic environment. However, 
division engineers can regionally condition NWP 3 to restrict or 
prohibit its use in high value waters. Division engineers can also 
regionally condition NWP 3 to reduce the distance from the existing 
structure that accumulated sediment can be removed or reduce the amount 
of fill that can be discharged into waters of the United States for 
activities associated with the repair of uplands damaged as a result of 
storms or other discrete events.
    Many commenters suggested additional conditions, which would allow 
minor deviations necessary to incorporate best management practices. 
Again, this is the intent of the phrase ``minor deviations in the 
structure's configuration or filled area'' in paragraph (i). It was 
also suggested that the repair and installation of scour and bank 
protection should be included in the NWP, as long as the applicant 
provides documentation of the original construction, including but not 
limited to, ``as-built'' plans. Another suggested activity to be added 
to NWP 3 was the removal of beaver dams and associated debris to 
restore the ``natural'' hydrology or functions of an area.
    Paragraph (ii) of the proposed modification of NWP 3 authorizes the 
installation of scour protection necessary to protect or ensure the 
safety of the structure. If bank protection is necessary, it may be 
authorized by NWP 13, a regional general permit, or an individual 
permit. The removal of a beaver dam may or may not require a Section 
404 permit, depending on whether the removal of the beaver dam results 
in a discharge of dredged or fill material into waters of the United 
States. If the beaver dam can be removed without any discharges into 
waters of the United States or the discharge consists only of 
incidental fallback, no Section 404 permit is required. If the removal 
of the beaver dam involves discharges into waters of the United States, 
then a Section 404 permit is required. If a Section 404 permit is 
required, the removal of a beaver dam may be authorized by another NWP 
such as NWP 18, a regional general permit, or an individual permit.
    Removal of Accumulated Sediments in the Vicinity of Existing 
Structures: A large number of commenters recommended limits for 
paragraph (ii) of NWP 3. Recommended limits ranged from 20 to 300 cubic 
yards of excavated material and 25 to 500 linear feet of direct impacts 
upstream and/or downstream of the structure. The commenters 
recommending lower limits believe that higher limits for this NWP would 
cause more than minimal adverse effects on the aquatic environment. The 
commenters suggesting higher limits contend that higher limits are 
necessary to authorize sediment removal when accumulation of sediments 
occurs for greater distances (e.g., in flat terrain or alluvial out-
wash areas). Another commenter recommended imposing 1/3-acre and 200 
linear foot limits in paragraph (ii) if the project is in woodlands or 
special aquatic sites. Several commenters believe that there should be 
no restrictions because review of the PCN allows the District Engineer 
to limit the work to the minimum necessary to maintain the function of 
the structure. One commenter stated that the NWP should be conditioned 
to prohibit stream bed ``clean-outs.'' Another commenter requested a 
narrower definition of the term ``vicinity.''
    We believe that the 200 linear foot limit authorizes removal of 
accumulated sediments from the vicinity of an existing structure that, 
under most circumstances, results only in minimal adverse effects on 
the aquatic environment, individually or cumulatively. Division 
engineers can regionally condition this NWP to decrease the 200-foot 
limit or impose limits on the quantity of excavated material that can 
be removed. Since paragraph (ii) of the proposed modification of NWP 3 
requires notification to the District Engineer for every activity, 
district engineers can exercise discretionary authority and require an 
individual permit for those activities that result in more than minimal 
adverse effects on the aquatic environment. Paragraph (ii) of the 
proposed modification does not authorize stream ``clean out'' 
activities, unless sediments have accumulated in the vicinity of an 
existing structure, such as a bridge or culvert. Sediment removal to 
deepen a stream channel is not authorized by this NWP. District 
engineers will determine what constitutes the ``vicinity'' for the 
purposes of paragraph (ii) of this NWP.
    One commenter recommended that the NWP prohibit the removal of 
accumulated sediments in special aquatic sites. Another commenter 
stated that compensatory mitigation should be required if aquatic 
habitat is removed. Some commenters suggested modifying paragraph (ii) 
to authorize the removal of sediment deposits and associated vegetation 
from the structures themselves and require testing of sediments in 
areas of suspected contamination to ensure that the adverse effects of 
the work are minimal.
    We do not believe that it is necessary to exclude special aquatic 
sites from paragraph (ii) of the proposed modification of NWP 3. 
Sediment accumulation can occur in riffle and pool complexes and can 
also result in vegetated bars which may be considered wetlands. 
However, these areas are constantly changing due to sediment transport 
within the waterbody. Under

[[Page 39289]]

these circumstances, the removal of accumulated sediments, even if they 
are vegetated, typically results in minimal adverse effects on the 
aquatic environment. District engineers can require compensatory 
mitigation, if they believe it is necessary to ensure that the 
authorized work results only in minimal adverse effects, but in most 
situations compensatory mitigation is unnecessary due to the dynamic 
nature of the affected area and the minor impacts to the aquatic 
environment. In fact, removal of accumulated sediments in the vicinity 
of structures may improve the aquatic environment by removing barriers 
to fish passage. It is likely that sediments will repeatedly accumulate 
in the area and will have to be removed on a regular basis. The phrase 
``in the vicinity of existing structures'' includes removal of 
accumulated sediments, including any vegetation that may be growing on 
those accumulated sediments, in and near the structures. However, we 
will clarify the phrase to read ``* * * in the vicinity of, and within, 
existing structures * * *'' In areas where accumulated sediments may be 
contaminated, district engineers can exercise discretionary authority 
to require an individual permit and require testing to determine if 
special techniques are required for the excavation and disposal of the 
accumulated sediment.
    Some commenters objected to modifying this NWP to authorize 
sediment removal in the vicinity of existing structures, especially in 
docking areas. One commenter requested that the NWP include a 
definition of the term ``structure'' to clarify whether or not 
maintenance dredging of marina basins and boat slips is authorized by 
this NWP. One commenter suggested that the provision for removing 
accumulated sediment in front of existing structures appears to 
conflict with the prohibition against maintenance dredging in paragraph 
(i) of the proposed modification to this NWP. Several commenters also 
recommended that the Corps limit the number of times this permit could 
be used to prevent the cumulative impacts of multiple sediment removal 
projects. One commenter stated that removal of sediment from a drainage 
ditch in the vicinity of an existing structure would be considered 
maintenance of an existing drainage ditch and would be exempt from 
Section 404 permit requirements in accordance with 33 CFR Part 
323.4(a)(3).
    We have changed the text of the proposed modification of NWP 3 to 
clarify that maintenance dredging for the primary purpose of navigation 
is not authorized by this NWP, unless it is specifically authorized by 
paragraphs (ii) and (iii) of the NWP for other purposes. For example, 
this NWP can authorize the removal of accumulated sediment from a water 
intake structure in a marina basin. Maintenance dredging of existing 
marina basins or boat slips may be authorized by NWP 35, NWP 19, 
regional general permits, or individual permits. We believe that it is 
unnecessary to limit the number of times this NWP can be used to remove 
accumulated sediments in the vicinity of existing structures. The 
removal of accumulated sediments in the vicinity of existing structures 
is unlikely to result in more than minimal cumulative adverse effects 
on the aquatic environment. District engineers can determine, through 
their review of notifications, if repeated removal of accumulated 
sediments at a particular site results in more than minimal cumulative 
adverse effects on the aquatic environment. For the purposes of this 
NWP, the term ``structure'' does not include unconfined waterways and 
channelized streams, except where the channelized stream consists of a 
concrete-lined channel. Although the maintenance of existing drainage 
ditches is exempt under Section 404(f), paragraph (ii) of NWP 3 
authorizes the removal of accumulated sediments in the vicinity of 
existing structures that does not qualify for a Section 404(f) 
exemption. Maintenance activities that are eligible for Section 404(f) 
exemptions do not require the use of this NWP.
    Some commenters stated that the placement of rip rap to protect the 
structure should be removed from this NWP because this activity can be 
authorized by other NWPs. One commenter believes that the placement of 
rip rap should not be authorized by this NWP except in areas where it 
is clearly necessary to protect public structures. Other commenters 
recommended prohibiting the placement of rip rap in areas inhabited by 
submerged aquatic vegetation.
    It is our intent to authorize under paragraph (ii) all related 
activities for a single and complete project that have minimal adverse 
effects on the aquatic environment, rather than require the use of 
multiple NWPs to authorize those activities. The placement of rip rap 
at the foot of the structure is often necessary to protect the 
structure from scour. If sediments are accumulating in the vicinity of 
the structure, it is likely that the structure is subject to scouring 
by the sediment load of the waterbody. In areas with substantial 
movement of sediment, it is unlikely that large populations of 
submerged aquatic vegetation will become established, because the 
movement of sediments in the bed of the waterbody often will not allow 
submerged aquatic vegetation to take root and grow in the waterbody. 
Furthermore, the PCN requirement in paragraph (ii) allows district 
engineers to review all proposed removal of accumulated sediments to 
ensure that the adverse effects on the aquatic environment are minimal. 
If a substantial population of submerged aquatic vegetation inhabits 
the vicinity of the structure, district engineers can exercise 
discretionary authority if the adverse effects of sediment removal and 
the placement of rip rap will be more than minimal.
    Some commenters stated that the removal of accumulated sediments 
from publicly-owned transportation facilities should be exempt from 
notification requirements, and no PCN should be required for sediment 
removal after heavy storms or floods, because it is too time consuming 
to obtain the required cultural and biological clearances.
    We believe that the adverse effects on the aquatic environment are 
the same, regardless of whether or not a transportation crossing is 
privately or publicly owned. The PCN requirement is necessary to allow 
district engineers to determine if the adverse effects of the proposed 
work on the aquatic environment will be minimal and ensure that 
prospective permittees will not remove more sediment than necessary. In 
the event of a heavy storm, flood, or other natural disaster, the Corps 
has emergency procedures in place for expediting permit issuance for 
activities related to repairing storm or disaster damage.
    Some commenters recommended authorizing the use of minor cofferdam 
systems in the NWP, without a PCN requirement, when removing 
accumulated sediments and debris in accordance with paragraph (ii) and 
for activities in waters of the United States associated with restoring 
damaged uplands in paragraph (iii).
    We disagree that this NWP should include the use of cofferdams, 
because NWP 33 can be used to authorize temporary construction, access, 
and dewatering activities that may be associated with the activities 
authorized by this NWP. Combining NWP 3 with NWP 33 for a single and 
complete project is not contrary to General Condition 15, provided the 
adverse effects on the aquatic environment are minimal.
    Activities Associated with Restoration of Uplands: Paragraph (iii) 
of the proposed modification of NWP 3

[[Page 39290]]

authorizes discharges of dredged or fill material into all waters of 
the United States for activities associated with the restoration of 
upland areas damaged by a storm, flood, or other discrete event. Many 
commenters stated that the restoration of uplands should be removed 
entirely from this NWP because it has nothing to do with the 
maintenance of currently serviceable structures and the Corps does not 
have jurisdiction over any activity in uplands. Many of these 
commenters believe that the Corps is asserting jurisdiction over 
uplands and requested the removal of paragraph (iii) from NWP 3. One 
commenter suggested that instead of authorizing the project proponent 
to rebuild an upland area to ``pre-event'' conditions, the permittee 
should only be authorized to stabilize the remaining uplands. Another 
commenter objected to modifying NWP 3 to authorize the restoration of 
eroded banks because bank erosion is a natural process and there are no 
limits in the NWP. This commenter believes that an individual permit 
should be required, with conditions requiring the use of coarse woody 
debris or other bioengineering methods to prevent further erosion of 
the bank.
    The purpose of paragraph (iii) of this NWP is to authorize those 
activities in waters of the United States that are associated with the 
restoration of uplands damaged by a storm or other discrete event. The 
restoration of uplands lost as a result of a discrete natural event 
does not require a Section 404 permit, because that activity is subject 
to the Clean Water Act Section 404(f) exemptions. However, some work in 
waters of the United States may be necessary to complete the 
restoration work. It is this associated work in waters of the United 
States that is authorized by this NWP. For example, the permittee may 
want to install structures to protect the restored uplands or remove 
obstructions in waters of the United States in the vicinity of the 
affected uplands. Through paragraph (iii) of this NWP, we are not 
attempting to regulate activities in uplands. We agree that paragraph 
(iii) requires clarification as to the extent of the Corps jurisdiction 
for upland restoration activities and we have rewritten paragraph (iii) 
to state that NWP 3 authorizes discharges ``* * * into all waters of 
the United States for activities associated with the restoration of 
upland areas damaged by a storm, flood, or other discrete event * * *'' 
Paragraph (iii) of the proposed modification does not authorize 
activities in waters of the United States associated with the 
replacement of uplands lost through gradual erosion processes; the loss 
of uplands must be due to a specific event, such as a hurricane or 
flood. Permittees are encouraged, but not required, to utilize 
bioengineering methods to stabilize the restored bank.
    One commenter objected to the proposed paragraph (iii) of the NWP, 
stating that previous conditions of the site are too difficult to 
document. Some commenters recommended that the Corps require the use of 
field evidence to estimate the prior extent of uplands, such as 
contours adjacent to the damaged areas, or as-built plans for the 
waterway to determine the extent of activities authorized by this NWP. 
Two commenters suggested that paragraph (iii) of NWP 3 should be 
applicable for smaller events over a specific time period (e.g., one 
year) rather than one catastrophic event.
    We have made the requirement for the prospective permittee to 
provide evidence to the District Engineer to justify the extent of the 
proposed restoration less stringent, to allow the District Engineer 
more flexibility to determine if a proposed activity can be authorized 
by paragraph (iii) of this NWP. Evidence of the pre-event extent of 
uplands can be provided by a recent topographic survey or photographic 
evidence. District engineers may also assess the surrounding landscape, 
including field evidence, to evaluate the extent of the proposed 
restoration and determine if it complies with the NWP. The location of 
the ordinary high water mark that existed prior to the storm event may 
be obvious when visiting the site. We realize that most property owners 
will not have a recent topographic survey showing the extent of the 
uplands on their property.
    Paragraph (iii) of the proposed modification of NWP 3 specifically 
does not authorize the reclamation of lands lost over an extended 
period of time due to normal erosion processes. If the land is subject 
to normal erosion processes, the landowner can prevent or reduce 
further erosion through bank stabilization measures, many of which are 
authorized by NWP 13. If the proposed bank stabilization measure does 
not qualify for authorization under NWP 13, then the landowner can 
apply for authorization by another NWP, a regional general permit, or 
an individual permit. We will retain the provision of the NWP to 
authorize only activities in waters of the United States for 
restoration of uplands lost due to specific events, such as storms and 
floods, and specifically exclude lands lost through normal erosion 
processes.
    For paragraph (iii) of the NWP, PCN thresholds of 1/4 acre, 10 
cubic yards, and up to 200 linear feet of stream bed were suggested by 
commenters and some commenters recommended requiring notification only 
for activities in special aquatic sites. One commenter recommended 
notification and agency coordination for all activities authorized 
under paragraph (iii).
    In the July 1, 1998, proposal to modify NWP 3, there was an 
inconsistency in the notification requirements. In subparagraph (c) of 
the proposed modification, notification was required for activities 
affecting greater than 1/3 acre of waters of the United States. 
Subparagraph (e) of the proposed modification stated that notification 
is required for all activities associated with the restoration of 
uplands. We have determined that notification should be required for 
all activities authorized under paragraph (iii) of this NWP, and have 
modified the NWP to state that notification is required for all 
activities authorized by paragraph (iii) of NWP 3.
    One commenter suggested that the Corps reduce the amount of time 
required to submit a PCN from one year after the date of the damage to 
two or three months. They believe that two or three months is 
sufficient time for the landowner to realize that damage to uplands has 
occurred due to a discrete event and determine if restoration of the 
uplands will be done by the property owner. Another commenter suggested 
that while a 12-month time limit after the damage event may be enough 
time to plan restoration, it does not provide enough time to obtain 
financing for the restoration effort. Some commenters recommended 
requiring compensatory mitigation at a 1:1 ratio for activities 
authorized by paragraph (iii) of this NWP.
    Although landowners are usually immediately aware that they have 
lost uplands due to a storm, flood, or other discrete event, we believe 
that they should be allowed one year to determine if they want to 
restore the lost uplands and submit a notification to the District 
Engineer. After a catastrophic event, many landowners require time to 
recover from the event and conduct repairs to their homes and other 
structures. Restoration of their land is often less urgent and the 
landowners should be allowed adequate time to carefully plan their 
upland restoration efforts. It should also be noted that the one year 
deadline in paragraph (iii) of the NWP applies only to the notification 
requirement and that the permittee has two years to start the 
restoration work or execute a construction contract. Two

[[Page 39291]]

years should be an adequate amount of time to conduct the upland 
restoration activity.
    Since the purpose of paragraph (iii) is to authorize activities in 
waters of the United States associated with the restoration of uplands 
lost due to a storm event, in most cases compensatory mitigation should 
not be required because the purpose of the work is to return the area 
to approximately the same conditions that existed prior to the storm 
event. Activities in waters of the United States associated with the 
restoration of uplands typically do not result in more than minimal 
adverse effects on the aquatic environment and should not require 
compensatory mitigation. Carefully planned and implemented restoration 
efforts may benefit the overall aquatic environment by repairing the 
damaged areas and reducing sediment loads to the waterbody, thereby 
improving water quality. As with all NWPs, district engineers may 
require compensatory mitigation to ensure that the adverse effects of 
the work on the aquatic environment are minimal, but we believe that 
compensatory mitigation should not be required in most cases.
    To make NWP 3 easier to understand, we are proposing to combine all 
of the conditions in subparagraphs (a) through (e) and subparagraph (h) 
of paragraph (iii) to form a single paragraph. We have also added a 
note at the end of this NWP to clarify that NWP 3 authorizes repair, 
rehabilitation, or replacement activities that do not qualify for the 
Section 404(f) exemption for maintenance.
    This NWP is subject to the requirements of proposed General 
Conditions 25 and 26. General Condition 25 requires the prospective 
permittee to notify the District Engineer in accordance with General 
Condition 13 for activities in designated critical resource waters, 
including wetlands adjacent to those waters. The District Engineer may 
authorize NWP 3 activities in designated critical resource waters and 
adjacent wetlands if the adverse effects on the aquatic environment are 
no more than minimal. General Condition 26 does not prohibit the use of 
this NWP to authorize discharges resulting in the loss of greater than 
1 acre of impaired waters, including adjacent wetlands. However, NWP 3 
activities in impaired waters and adjacent wetlands require 
notification to the District Engineer in accordance with General 
Condition 13. The proposed work can be authorized by NWP 3 if the 
permittee demonstrates to the District Engineer that the work will not 
result in further impairment of the waterbody.
    In response to a PCN, district engineers can require special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. This NWP, as 
with any NWP, provides for the use of discretionary authority when 
valuable or unique aquatic areas may be affected by these activities.
7. Outfall Structures and Maintenance
    In the July 1, 1998, Federal Register notice, the Corps proposed to 
modify this NWP to authorize the removal of accumulated sediments from 
outfall and intake structures and associated canals. All of the 
original terms and limitations of NWP 7 have been retained. Numerous 
commenters expressed their support for the proposed modifications to 
NWP 7. A number of commenters objected to the inclusion of excavation 
activities in associated canals and impoundments and questioned whether 
such activities are related and similar in nature. A couple of 
commenters questioned the need for the proposed modification. Some 
commenters requested acreage and cubic yardage limits for the 
additional activities authorized by the proposed modification of NWP 7. 
Several commenters recommended restricting excavation in wetlands.
    Outfalls, intakes, and associated canals accumulate sediment and 
require periodic excavation or maintenance dredging to restore flow 
capacities to the facility. Most of the dredging is required in the 
vicinity of intake structures and their canals because circulation 
patterns result in the deposition of sediment in these areas. This 
sediment must be removed to ensure that the facility has an adequate 
supply of water for its operations. Water discharged from outfall 
structures usually has little or no sediment load and maintenance 
dredging is not often required in these areas. In situations where a 
utility company's intake or outfall canal is also used by barges to 
travel to the utility facility, part (ii) of the proposed modification 
of NWP 7 will allow continued access by those barges because the 
removal of accumulated sediments will return the intake or outfall 
canal to its originally designed dimensions and restore its navigable 
capacity.
    We believe that authorizing some dredging or excavation to maintain 
the effectiveness of the outfall or intake structure is necessary and 
an integral part of this NWP. This NWP is conditioned to authorize only 
the minimum work necessary to maintain the facility, and requires the 
prospective permittee to provide the District Engineer with information 
on the design capacities and configuration of the intake or outfall 
structure, impoundment, or canal. The prospective permittee will also 
be required to submit a delineation of affected special aquatic sites 
with the PCN to allow district engineers to better assess potential 
adverse effects on the aquatic environment, especially in vegetated 
shallows that may occur in the canal or in the vicinity of the intake 
or outfall structure. No acreage limits have been placed upon this NWP. 
Most activities authorized by this NWP will take place in existing 
canals, which have been repeatedly dredged and maintained and often 
support some kind of industrial or commercial activity for public 
benefit. Furthermore, existing deposit areas for the dredged or 
excavated sediment will typically be present and available for use. 
Where maintenance dredging or excavation is proposed, notification is 
required and the District Engineer can exercise discretionary authority 
if the adverse effects on the aquatic environment will be more than 
minimal. Compensatory mitigation will also be required where 
appropriate, but in most cases we believe that compensatory mitigation 
should not be required for activities authorized by part (ii), since it 
is a maintenance activity. Division engineers can also impose regional 
conditions on this NWP to add limits to the NWP or restrict or prohibit 
its use in certain waterbodies.
    Several commenters supported the proposed notification 
requirements. Several commenters recommended requiring notification for 
all activities whereas other commenters suggested specific distance and 
acreage thresholds for notification.
    We are proposing to retain the notification requirement to allow 
district engineers to review all activities authorized by this NWP. 
Evidence of the original design capacity and configuration of the 
facility must be submitted with the notification. This information 
allows district engineers to review the proposed work to ensure that 
the removal of sediment is for maintenance, not new dredging or 
excavation.
    Two commenters stated that irrigation and farm ponds should be 
removed from the proposal as they are not related to outfalls, while 
many commenters objected to the inclusion of excavation in small 
impoundments under this NWP. Another commenter stated that the 
maintenance of water treatment facilities, irrigation ponds, and farm

[[Page 39292]]

ponds, is exempt from Section 404 permit requirements.
    In the July 1, 1998, Federal Register notice, we stated that the 
proposed modifications to NWP 7 could be used to authorize the removal 
of accumulated sediments from intake and outfall structures in small 
impoundments, such as irrigation ponds and farm ponds. This statement 
is in error, since the construction and maintenance of farm, stock, and 
irrigation ponds does not require a Section 404 permit (see 33 CFR Part 
323.4(a)(3)), provided the work does not trigger the recapture 
provision of Section 404(f)(2) of the Clean Water Act (see 33 CFR Part 
323.4(c)). The removal of sediments from small impoundments is limited 
to the excavation of sediment around the intake or outfall structure, 
if that activity is not exempt under Section 404(f). Water treatment 
facilities may be constructed waters of the United States, and possibly 
Section 10 waters. The proposed modification of NWP 7 authorizes 
removal of accumulated sediments in the vicinity of intake and outfall 
structures constructed in waters of the United States for water 
treatment facilities.
    One commenter opposed modifying NWP 7 to authorize activities in 
non-tidal waters, believing that this would open up thousands of acres 
of wetlands and streams to destruction. One commenter stated that since 
the proposed modification had no quantitative limits for impacts, this 
NWP could cause significant and unmitigated individual and cumulative 
adverse impacts. Two commenters stated that no activities in tidal 
areas or areas adjacent to, or contiguous with, tidal waters should be 
authorized by this NWP. Two commenters further requested that outfall 
structures associated with large facilities, such as aquaculture 
facilities or power plants, should be reviewed under an individual 
permit.
    NWP 7 is applicable in all waters of the United States, including 
navigable waters. The proposed modification of NWP 7 authorizes only 
the construction of outfall structures and associated intake structures 
and maintenance dredging or excavation of accumulated sediments in the 
vicinity of outfall and intake structures and associated canals. These 
activities will not result in the destruction of thousands of acres of 
wetlands and streams, because most outfall structures are fairly small 
and the authorized excavation or dredging activities are only for 
maintenance. The removal of accumulated sediments from an existing 
intake or outfall structure or canal will not open up thousands of 
wetlands and streams to destruction. Furthermore, since the authorized 
removal of accumulated sediment will be limited to the minimum 
necessary to restore the facility to its original design capacity, the 
adverse effects on the aquatic environment will usually be minimal. The 
District Engineer will have the opportunity to review all proposed NWP 
7 activities on a case-by-case basis and will be able to add any 
necessary conditions, including compensatory mitigation requirements, 
to ensure that this NWP authorizes only those activities with minimal 
adverse effects on the aquatic environment, individually or 
cumulatively. For those activities that may result in more than minimal 
adverse effects on the aquatic environment, district engineers will 
exercise discretionary authority. This NWP can be utilized for outfalls 
associated with aquaculture or power plants. All outfalls proposed 
under this NWP must be authorized, exempted, or otherwise in compliance 
with regulations issued under the National Pollutant Discharge 
Elimination System program.
    Several commenters suggested adding restrictions during fish 
spawning and nesting periods. One commenter recommended adding two 
additional conditions because of potential impacts to manatees. Another 
commenter recommended that this permit contain a condition requiring 
that shorelines affected by activities authorized under this permit 
should be revegetated.
    General Condition 20 states that activities including structures 
and work in navigable waters of the United States or discharges of 
dredged or fill material, in spawning areas during spawning seasons 
must be avoided to the maximum extent practicable. This condition 
further states that activities that physically destroy important 
spawning areas are not authorized. In addition, limitations in specific 
waters for certain species are more appropriately addressed as regional 
conditions or case-specific special conditions. Activities that may 
affect Federally-listed endangered or threatened species or designated 
critical habitat must comply with General Condition 11. Districts are 
encouraged establish local operating procedures to provide better 
protection for these species and their critical habitat.
    General Condition 3, Soil Erosion and Sediment Control, requires 
the permittee to utilize appropriate soil erosion and sediment controls 
during construction and permanently stabilize the site at the earliest 
practicable date. This requirement may be fulfilled through vegetative 
stabilization methods. In addition, following project completion, some 
areas may naturally revegetate. We do not believe that it is necessary 
to incorporate an additional requirement into the NWP. Where necessary, 
revegetation can be required by district engineers on a case-by-case 
basis through special conditions or regional conditions. In some cases, 
mitigation requirements may also address this issue, particularly where 
the permittee is required to establish and maintain a vegetated buffer.
    One commenter stated that NWP 7 should clearly state that it 
authorizes removal of accumulated sediment in and around intake pipes 
and not just around intake pipes. Several commenters requested that 
this NWP authorize removal of accumulated sediment in the vicinity of 
intake and outfall structures for engineered flood control facilities, 
including dams, flood control facilities, and large reservoirs. One 
commenter asked why NWP 7 does not authorize the construction of intake 
structures only, because they result in similar adverse effects on the 
aquatic environment as outfalls.
    The proposed modification of this NWP authorizes the removal of 
sediments blocking or restricting outfall or intake structures. This 
includes sediment removal from inside of the intake structure. This NWP 
does not authorize the construction of new canals or the removal of 
sediment from the head works of large dams, flood control facilities, 
or large reservoirs. Individual permits, regional general permits, or 
other NWPs such as NWPs 19 or 31, may authorize these activities. NWP 7 
does not authorize the construction of intake structures without 
associated outfall structures because of the potential for more than 
minimal adverse effects on the aquatic environment where an intake 
structure may be constructed in a waterbody to withdraw water. If the 
water is not returned to the waterbody through an outfall structure, 
there may be more than minimal adverse effects to aquatic organisms and 
local water supplies, especially in arid regions of the country.
    This NWP is subject to proposed General Conditions 25 and 26, which 
will reduce its applicability. General Condition 25 prohibits the use 
of this NWP to authorize discharges into designated critical resource 
waters and wetlands adjacent to those waters. General Condition 26 
prohibits the use of this NWP to authorize discharges resulting in the 
loss of greater than 1 acre of impaired waters, including adjacent 
wetlands. NWP 7 activities resulting in the loss of 1 acre or less of 
impaired waters, including adjacent

[[Page 39293]]

wetlands, are prohibited unless prospective permittee demonstrates to 
the District Engineer that the activity will not result in further 
impairment of the waterbody.
    In response to a PCN, district engineers can require special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, provides for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities.
12. Utility Line Activities
    In the July 1, 1998, Federal Register notice, we proposed to modify 
this NWP to authorize activities commonly associated with utility 
lines, such as the construction of electric or pumping substations, 
foundations for overhead utility line towers, poles, and anchors, and 
access roads. Many of these activities may have been authorized by NWP 
26.
    General comments: We received many comments addressing the proposed 
changes to NWP 12. Some commenters suggested leaving NWP 12 unchanged. 
Other comments ranged from supporting the issuance of the proposed 
modifications of NWP 12 to recommending the revocation of NWP 12. Many 
commenters concurred with the proposed acreage limits and PCN 
thresholds for the additional activities included in this NWP. Some 
commenters proposed higher acreage limits and PCN thresholds. Other 
commenters recommended lower acreage limits and PCN thresholds for the 
additional activities. Many commenters stated that the proposed changes 
would improve the efficiency of the NWP program and prevent the 
increase of regulatory burdens, without causing more than minimal 
adverse effects on the aquatic environment.
    Many commenters expressed opposition to the expansion of NWP 12 to 
authorize utility line substations, foundations for utility towers, and 
permanent access roads. These commenters stated that this proposal 
would be a major expansion of the limits of NWP 12, resulting in 
significant losses of wetlands and other waters of the United States. 
Several commenters stated that there would no longer be any incentive 
to locate these facilities in uplands because the proposed modification 
would authorize their construction in wetlands. Some commenters believe 
that concerns regarding individual and cumulative adverse effects on 
the aquatic environment resulting from the modification of NWP 12 could 
be addressed through the regional conditioning process.
    We believe the NWP terms, limits, and notification requirements, 
will help to ensure that the proposed modification of NWP 12 authorizes 
only those utility activities with minimal adverse effects on the 
aquatic environment. The review of PCNs by district engineers and the 
regional conditioning process will ensure that the NWP authorizes only 
those activities with minimal adverse effects on the aquatic 
environment and will address regional and watershed concerns. The 
notification provisions of NWP 12 will allow district engineers to 
exercise discretionary authority for those utility line activities that 
may result in more than minimal adverse effects on the aquatic 
environment.
    One commenter recommended combining utility lines with roads and 
other linear projects into one NWP permit and authorizing other utility 
line activities that are not linear in nature, such as substations and 
foundations for overhead utility lines, by another NWP because they are 
more similar in nature.
    We believe that utility line substations, foundations for utility 
line towers, and permanent access roads for utility line maintenance 
are more appropriately authorized by NWP 12, instead of a separate NWP 
for these activities, because these activities are integral to single 
and complete utility line projects and the adverse effects for these 
activities should be considered under one NWP. All of the activities 
identified in NWP 12 are associated with typical utility projects and 
are similar in nature to other utility projects. We have changed the 
title of this NWP from ``Utility Activities'' to ``Utility Line 
Activities'' to better reflect the related nature of these activities 
for utility line construction, maintenance, and operation. We also 
believe that most of these projects, when conducted within the 
specified limits of the NWP, will have no more than minimal adverse 
impact on the aquatic environment. Finally, in those cases where 
proposed activities may have more than minimal adverse effects on the 
aquatic environment, we believe that the notification and regional 
conditioning processes will serve to ensure that the NWP authorizes 
only utility line activities with minimal adverse effects on the 
aquatic environment.
    One commenter made the following recommendations concerning NWP 12: 
(1) The NWP should apply only to previously developed areas and well-
established utility corridors; (2) the clearing of forested wetlands 
should be excluded from this NWP; (3) the NWP should be excluded from 
wetlands in migratory corridors or near wetlands heavily used by 
migratory birds; and (4) the NWP should contain a provision requiring 
the planting of native species in disturbed areas and the removal of 
noxious and invasive plant species. Another commenter recommended 
excluding the use of NWP 12 in special aquatic sites and endangered 
species habitat.
    We do not agree with the recommendations in the previous paragraph. 
NWP 12 authorizes only those utility activities that result in minimal 
adverse effects on the aquatic environment, individually or 
cumulatively. It is unnecessary and impractical to limit NWP 12 only to 
activities in existing utility corridors. If the proposed utility line 
will result in more than minimal adverse effects on the aquatic 
environment, district engineers can exercise discretionary authority 
and require an individual permit. Regional conditioning or case-by-case 
discretionary authority is the best mechanism to address potential 
adverse effects to wetland habitat. Regional conditions can also 
address concerns for revegetating areas temporarily affected by the 
authorized work. District engineers can add special conditions to NWP 
12 authorizations to specify certain plant species to be planted in 
disturbed areas. General Condition 11 adequately addresses potential 
effects of the use of NWP 12 on Federally-listed endangered or 
threatened species or designated critical habitat.
    Utility lines: One commenter recommended limiting NWP 12 to utility 
lines that are less than 10 miles in length and six inches in diameter, 
with an acreage limit of 2 acres. Other recommended acreage limits 
included 1 acre and \1/3\ acre. One commenter expressed concern about 
allowing sidecast material to remain in waters of the United States for 
up to six months, particularly in tidally influenced waters. To 
minimize adverse effects to marine fisheries, this commenter 
recommended conditioning NWP 12 to require the permittee to leave gaps 
in sidecast material at minimum intervals of 500 feet and prohibiting 
the placement of sidecast material in a manner that blocks natural 
surface water flows. Another commenter recommended prohibiting 
sidecasting of material during utility line maintenance activities to 
protect unique wetland functions. Some commenters questioned the 
requirement that excess material

[[Page 39294]]

must be removed to upland areas immediately upon completion of 
construction and one recommended that, in light of the recent Fifth 
Circuit Court of Appeals ruling in American Mining Congress, et al. v. 
Corps of Engineers, the Corps move the sentence concerning excess 
material to paragraph (i) of NWP 12. This commenter also stated that 
they assume that this requirement is intended to apply only to soil or 
other material that is dredged or excavated in significant quantities 
and redeposited at another location within a water of the United 
States, and not to clearing vegetation above ground.
    Regional conditioning is the best mechanism for placing acreage 
limits on utility line construction, if division engineers believe that 
the cumulative adverse effects of utility line construction may result 
in more than minimal adverse effects on the aquatic environment within 
a particular region. Regional conditions are also the best way to 
address concerns regarding the maximum amount of time sidecast material 
should remain in waters of the United States and whether or not gaps or 
culverts should be placed in the temporary piles of excavated material 
to maintain surface water flows. In addition, General Condition 21, 
Management of Water Flows, requires that the permittee conduct the work 
so that preconstruction water flow patterns are maintained to the 
maximum extent practicable after completion of the authorized work.
    The requirement for removing excess fill materials upon completion 
of construction will be retained in this NWP. This NWP authorizes 
temporary fills to install the utility line, such as sidecasting into 
waters of the United States during installation, provided the permittee 
backfills the trench. Any excavated material placed in waters of the 
United States that is not used to backfill the trench must be removed 
upon completion of the work or it will be considered a permanent fill 
requiring a separate Section 404 permit. An important requirement to 
ensure that activities authorized by NWP 12 will have no more than 
minimal adverse effects on the aquatic environment is the requirement 
to maintain preconstruction contours and elevations as close as 
possible after completion of the authorized work. Clearing vegetation 
by cutting it above the soil surface does not require a Section 404 
permit, as long as there is no discharge of dredged or fill material 
into waters of the United States. In addition, if the proposed work is 
in a forested wetland, any mechanized landclearing which results in a 
discharge of dredged or fill material will require a PCN. The Corps 
believes it is necessary to retain this provision to ensure that this 
NWP authorizes activities with only minimal adverse effects on the 
aquatic environment.
    One commenter recommended that the NWP contain a requirement that 
all wastewater lines have no-seam pipes beneath perennial or 
intermittent streams to reduce the potential for untreated wastewater 
leaking into these streams. Another commenter recommended conditioning 
NWP 12 to require the installation of anti-seep collars at the 
downstream wetland boundary and every 150 feet up the gradient until 
the utility line exits the wetland at the upstream or up-slope end to 
prevent the lateral draining of the wetland caused by the gravel bed 
beneath the utility line. One commenter recommended requiring 
perpendicular (between 75 and 105 degrees) stream crossings.
    General Condition 2, Proper Maintenance, requires that permittees 
maintain all authorized structures or fills to ensure public safety. 
Permittees must also comply with Section 402 of the Clean Water Act, 
which requires a permit for the discharge of effluent into waters of 
the United States. Wastewater lines must be designed and maintained so 
that they do not leak untreated wastewater into waters of the United 
States. NWP 12 also includes a requirement that a utility line may not 
be constructed in such a manner as to drain waters of the United States 
(e.g., backfilling with extensive gravel layers, which may create a 
french drain effect, and failing to take appropriate measures to 
prevent the lateral draining of a wetland).
    We believe that perpendicular stream crossings are environmentally 
preferable in many situations. However, these types of crossings are 
not always feasible and we have determined that it is better to require 
notification where a utility line is proposed to be placed within a 
water of the United States and runs parallel to a stream bed within 
that jurisdictional area. These projects will be reviewed on a case-by-
case basis to determine if the activities would have more than minimal 
adverse effects on the aquatic environment. In addition, regional 
conditions can address concerns about certain activities and/or impacts 
to certain waters of the United States.
    Many commenters concurred with the statement in the preamble that 
the installation of subaqueous utility lines in waters of the United 
States should not be considered as resulting in a loss of waters of the 
United States if the area impacted by installation of the utility line 
is the minimum necessary and preconstruction contours and elevations 
are restored after construction. A number of commenters expressed 
concern about adverse effects associated with utility projects and 
believe that compensatory mitigation should be required to offset those 
adverse effects. Some commenters also questioned why the term ``loss'' 
only applies to permanently affected waters of the United States. One 
commenter stated that the term ``loss'' should apply to the clearing of 
forested wetlands for the construction of overhead power transmission 
lines where the forest will not be allowed to grow back.
    We believe that the installation of utility lines that results only 
in temporary adverse effects on waters of the United States should not 
be considered a loss if preconstruction contours and elevations are 
restored after construction and there are no permanent adverse effects 
to the aquatic environment resulting from the activity. While temporary 
adverse effects to water quality, fish and wildlife habitat, and other 
components of the aquatic environment may result, the areas typically 
return to preconstruction conditions if the terms and conditions of the 
NWP are met. In these cases, compensatory mitigation should not be 
required. However, should the installation of a utility line result in 
the permanent conversion of a forested wetland to another wetland type 
in a permanently maintained right-of-way, compensatory mitigation may 
be required by the District Engineer if it is necessary to ensure that 
the authorized work will result in minimal adverse effects on the 
aquatic environment. Finally, in those cases where the proposed work 
may result in more than minimal adverse impact on the aquatic 
environment, we believe the notification and regional conditioning 
processes will ensure that the NWP authorizes only activities with 
minimal adverse effects on the aquatic environment. In addition, 
compensatory mitigation can be required for any NWP 12 activity 
requiring a PCN to ensure that the adverse effects of the authorized 
work on the aquatic environment are minimal, individually or 
cumulatively. The NWP already contains provisions addressing the 
clearing of forested wetlands. District engineers will determine if 
compensatory mitigation should be required for the conversion of a 
forested wetland to an emergent or scrub-shrub wetland in a maintained 
utility line corridor.
    In the first sentence of paragraph (i), we have stated that NWP 12 
authorizes the maintenance and repair of utility

[[Page 39295]]

lines in addition to their construction. Since NWP 12 can be used to 
authorize the construction of utility lines in both Section 10 and 
Section 404 waters, we have added the phrase ``in all waters of the 
United States'' to the text of paragraph (i).
    Utility line substations: Some commenters recommended that the 
Corps withdraw this part of the proposed modification of NWP 12. Many 
commenters recommended higher acreage limits, ranging from 2 to 3 
acres. A number of commenters recommended lower acreage limits. One 
commenter requested that the Corps clarify what is meant by the term 
``pumping substations'' and suggested using the term ``compressor 
station'' instead.
    We believe that the 1 acre limit for the construction of utility 
line substations is appropriate to authorize the construction of most 
utility line substations with minimal adverse effects on the aquatic 
environment. However, we have lowered the PCN threshold for the 
construction of utility line substations to \1/4\ acre, to make it more 
consistent with the other proposed new and modified NWPs. We also agree 
that some clarification is appropriate to specify the types of utility 
line substations are authorized by paragraph (ii). The term ``utility 
line substations'' includes power line substations, lift stations, 
pumping stations, meter stations, compressor stations, valve stations, 
small pipeline platforms, and other facilities integral to the 
operation of a utility line.
    For the proposed modification of NWP 12, the construction or 
expansion of utility line substations in waters of the United States is 
limited to non-tidal waters, excluding non-tidal wetlands adjacent to 
tidal waters. We have added this language to paragraph (ii) to clarify 
the applicable waters for utility line substations authorized by NWP 
12, and to make those applicable waters consistent with most of the 
other proposed NWPs.
    Foundations for overhead utility line towers, poles, and anchors: 
One commenter recommended eliminating the requirement to use separate 
footings for utility line towers where feasible. Another commenter 
noted that in certain situations where hurricanes, high winds, and 
lightning occasionally cause damage to power line structures and 
conductors, it is better to construct a single pad beneath the 
footings. The commenter requested modification of the NWP to allow 
single pad fills as long as they result in the loss of less than \1/3\ 
acre of waters of the United States.
    We have decided to retain the proposed language because it provides 
flexibility. The phrase ``where feasible'' does not prohibit the 
construction of a single pad to support the utility line tower; it 
merely encourages the construction of separate footings. This phrase 
provides district engineers with the flexibility to use NWP 12 to 
authorize the construction of single pads where there are concerns due 
to hurricanes, high winds, and other dangerous conditions. District 
engineers can require the permittee to provide justification as to why 
a single pad should be constructed instead of separate footings. The 
only requirement is that the pads result in minimal adverse effects on 
the aquatic environment. District engineers can require compensatory 
mitigation for the losses of waters of the United States resulting from 
the construction of single pads for overhead utility line towers.
    Since the proposed modification of NWP 12 can be used to authorize 
the construction of foundations for overhead utility line towers, 
poles, and anchors in both Section 10 and Section 404 waters, we have 
added the phrase ``in all waters of the United States'' to the text of 
paragraph (iii).
    Access roads: Many commenters recommended increasing the acreage 
limit for permanent access roads to 2 or 5 acres. One commenter 
recommended limiting permanent access roads to \1/3\ acre of loss of 
waters of the United States and a maximum width of 15 feet. Several 
commenters recommended excluding permanent access roads from this NWP. 
One of these commenters objected to the inclusion of permanent utility 
access roads because access roads fragment the landscape, which can 
adversely affect fish and wildlife habitat and the water quality 
functions of many wetland ecosystems. Another commenter requested that 
the NWP contain a provision requiring the permittee to submit 
justification explaining why permanent access roads are needed. One 
commenter suggested that the PCN contain a requirement for the 
submission of an engineering analysis demonstrating that the culvert 
size for the permanent access road is adequate, based on watershed 
acreage and the appropriate rainfall coefficient. One commenter 
expressed concern about inconsistent statements in paragraph (iv) and 
the preamble discussion relating to the effects of the access roads on 
subsurface flows. This commenter questioned whether the Corps had the 
authority to regulate subsurface waters. A commenter asked the Corps to 
clarify the meaning of ``minimum width necessary'' as well as the 
acceptable length of road, and questioned who would make such 
determinations. Further, this commenter asked who decides whether 
preconstruction contours are maintained as near as possible. One 
commenter recommended adding a term to the NWP requiring that access 
roads be constructed with pervious surfaces.
    We believe that the 1 acre limit for permanent access roads is 
appropriate to ensure that the NWP authorizes only those permanent 
access roads that result in minimal adverse effects on the aquatic 
environment. The PCN threshold remains the same as proposed in the July 
1, 1998, Federal Register notice. The construction of permanent access 
roads for utility line maintenance has the same effects on landscapes 
as the construction of utility line right-of-ways because the access 
roads are usually constructed within the right-of-way. We do not 
believe that it is necessary for the applicant to provide justification 
for the construction of permanent access roads or an engineering 
analysis demonstrating the appropriateness of the culvert size. For 
those activities that require notification, district engineers will 
review the PCN and determine if the construction of permanent access 
roads will result in more than minimal adverse effects on the aquatic 
environment. Division engineers can also regionally condition NWP 12 to 
ensure that the construction of permanent access roads will result in 
minimal adverse effects.
    We agree that we do not have the authority under Section 404 of the 
Clean Water Act to regulate groundwater flows. Therefore, we have 
deleted the reference to subsurface flows in paragraph (iv). The 
District Engineer determines if the access road is the minimum width 
necessary, as well as the appropriate length of access road, and if the 
access road will result in minimal adverse effects on the aquatic 
environment. Division engineers can regionally condition NWP 12 to 
specify maximum widths and lengths of permanent access roads that can 
be authorized by this NWP. In cases where a PCN is required, the Corps 
will review the proposed work for compliance with the terms and 
conditions of the NWP. If a certain activity does not meet the terms 
and conditions of the NWP, another form of authorization must be 
obtained.
    For the proposed modification of NWP 12, the construction of 
permanent access roads for the construction or maintenance of utility 
lines in waters of the United States is limited to non-tidal waters of 
the United States, excluding non-tidal wetlands adjacent to tidal 
waters. We have added this language to paragraph (iv) to clarify the 
applicable

[[Page 39296]]

waters for utility line access roads authorized by NWP 12. We have also 
added a provision stating that permanent access roads must be 
constructed with pervious surfaces.
    Notification Requirements: Many commenters recommended eliminating 
the PCN requirement for mechanized landclearing in forested wetlands. 
One commenter questioned the requirement for notification in forested 
wetlands and requested an explanation for that requirement. Several 
commenters said that the PCN requirements for access roads should be 
consistent with the PCN requirements for roads under NWP 14. One 
commenter recommended decreasing the PCN threshold for utility lines 
installed in waters of the United States from 500 linear feet to 300 
linear feet. Several commenters supported a minimum notification 
threshold of \1/3\ acre. Several commenters requested reduced 
thresholds for notification to ensure minimal impacts.
    The PCN requirement for mechanized landclearing in a forested 
wetland has not been changed. This requirement was originally 
incorporated into NWP 12 for the December 13, 1996, reissuance of this 
NWP. The purpose of this notification requirement is to ensure that 
only minimal adverse effects on the aquatic environment will occur when 
the installation of a utility line occurs in forested wetlands. In the 
proposed modification of NWP 12 published in the July 1, 1998, Federal 
Register, we proposed to modify this notification requirement by 
limiting the circumstances requiring notification only to the 
establishment of the utility line right of way in a forested wetland, 
so that PCNs would not be required for any utility activity that 
involves mechanized landclearing of a forested wetland, such as the 
construction of a utility line substation. We are proposing to retain 
this requirement.
    We disagree that the notification requirements for permanent access 
roads authorized by NWP 12 and linear transportation crossings 
authorized by NWP 14 should be the same. NWP 12 and NWP 14 authorize 
different types of roads utilized for different purposes. Permanent 
access roads authorized by NWP 12 must be constructed as close to 
preconstruction contours as possible and at the minimum width 
necessary. We expect most permanent access roads for utility lines to 
be a maximum of 15 feet wide. Because of construction and safety 
standards, many roads authorized by NWP 14 are likely to be wider than 
15 feet, resulting in greater impacts to waters of the United States. 
We are proposing to retain the PCN thresholds for the construction of 
utility lines in waters of the United States and the construction of 
access roads as proposed in the July 1, 1998, Federal Register notice.
    Two commenters requested that the District Engineer, instead of the 
prospective permittee, notify the National Ocean Service (NOS) in cases 
where the utility line is to be constructed or installed in navigable 
waters of the United States.
    We agree that it is more appropriate for the District Engineer to 
provide NOS with a copy of the PCN and NWP authorization, since the 
requirement at 33 CFR Part 325.2(a)(9)(iii) is to provide NOS with a 
copy of the permit for utility lines in navigable waters of the United 
States. We are proposing to add a note (Note 3) to the end of the text 
of NWP 12, reminding the District Engineer to send copies of the PCN 
and the NWP 12 authorization to NOS if the utility line is constructed 
in navigable waters of the United States.
    Some commenters stated that the Corps should not require a 
delineation of special aquatic sites, including wetlands, as part of 
the NWP 12 PCN, or at least apply that requirement only to those 
projects that are subject to an acreage limitation. Some commenters 
recommended using simpler methods to delineate special aquatic sites. 
Other commenters suggested that the Corps adopt a procedure requiring 
Corps approval of a delineation of special aquatic sites within a 
reasonable period of time.
    We disagree with the first comment in the previous paragraph 
because it is important to identify the limits and amounts of special 
aquatic sites that might be lost as a result of the proposed work to 
determine if additional on-site avoidance and minimization is possible 
and if the proposed project would have more than minimal adverse 
effects on the aquatic environment. The only approved method of 
determining the extent of wetlands is by the procedures in the 1987 
Corps of Engineers Wetlands Delineation Manual (Technical Report Y-87-
1). Other special aquatic sites are identified through other methods. 
For activities requiring notification, district engineers have 45 days 
from the date of receipt of a complete PCN to determine if the proposed 
work qualifies for NWP authorization. During the 45-day period, the 
District Engineer must determine if the delineation is accurate. 
District engineers cannot consider a PCN incomplete solely because they 
have not verified the delineation of special aquatic sites.
    Other issues: One commenter recommended that the Corps add language 
to NWP 12 to waive the PCN requirement for cases where a prospective 
permittee is working under a valid NPDES stormwater management permit.
    We disagree, since the NPDES permit does not satisfy the permit 
requirements of Section 404 of the Clean Water Act. Review by the 
District Engineer is necessary to ensure that the authorized work 
complies with the terms and conditions of NWP 12 and results in minimal 
adverse effects on the aquatic environment.
    Some commenters objected to compensatory mitigation requirements 
for public utility projects and others suggested that mitigation should 
only be required to the extent necessary to ensure that an activity has 
minimal adverse effects on the aquatic environment. Other commenters 
recommended requiring complete or partial restoration of areas altered 
by mechanized landclearing.
    Public projects may have more adverse effects on the aquatic 
environment than private projects since they may be larger in size. 
Project proponents will be required to provide compensatory mitigation, 
if necessary, to ensure that the authorized work results in minimal 
adverse effects on the aquatic environment regardless of whether the 
project is for public or private purposes. For activities that require 
notification, compensatory mitigation may be required by district 
engineers to ensure that the net adverse effects to the aquatic 
environment are minimal, individually and cumulatively. Utility line 
right-of-ways in waters of the United States can be cleared for the 
construction, maintenance, or repair of utility lines, but the cleared 
area must be the minimum necessary and preconstruction contours must be 
maintained as close as possible. Wetland vegetation will grow back if 
the right-of-way is constructed in wetlands and preconstruction 
contours and elevations are restored after construction. However, the 
plant community may be maintained as shrubs or herbaceous plants, to 
prevent damage to the utility line and facilitate repairs. We believe 
that the conditions of NWP 12 adequately address temporary impacts to 
waters of the United States and that additional restoration 
requirements are not necessary.
    Some commenters emphasized the importance of the regional 
conditioning process to address regionally significant resources such 
as vernal pools, headwater springs, prairie potholes, certain coastal 
wetlands to ensure protection of unique wetland functions.

[[Page 39297]]

Many commenters made recommendations for regional conditions.
    We recognize that the regional conditioning process is a very 
important element in the implementation of the new and modified NWPs 
but that specific recommendations for regional conditions must be 
addressed by division and district engineers.
    This NWP is subject to proposed General Conditions 25, 26, and 27, 
which will substantially reduce its applicability. General Condition 25 
prohibits the use of this NWP to authorize discharges into designated 
critical resource waters and wetlands adjacent to those waters. General 
Condition 26 prohibits the use of this NWP to authorize discharges 
resulting in the loss of greater than 1 acre of impaired waters, 
including adjacent wetlands. NWP 12 activities resulting in the loss of 
1 acre or less of impaired waters, including adjacent wetlands, are 
prohibited unless prospective permittee demonstrates to the District 
Engineer that the activity will not result in further impairment of the 
waterbody. General Condition 27 prohibits the use of NWP 12 to 
authorize permanent, above-grade wetland fills in waters of the United 
States within the 100-year floodplain, unless the prospective permittee 
clearly demonstrates that the project and associated mitigation will 
not decrease the flood-holding capacity and no more than minimally 
alter the hydrology, flow regime, or volume of waters associated with 
the 100-year floodplain.
    In response to a PCN, district engineers can require special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, provides for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities.
14. Linear Transportation Crossings
    In the July 1, 1998, Federal Register notice, we proposed several 
changes to this NWP. We proposed to modify this NWP to have a larger 
acreage limit for public transportation crossings, such as roads, 
railroads, and airport runways, in non-tidal waters of the United 
States, excluding non-tidal wetlands contiguous to tidal waters. We 
also requested comments on whether the acreage limit for public 
transportation crossings in non-tidal waters should be 1 or 2 acres. 
For private crossings and public linear transportation crossings in 
tidal waters, or non-tidal wetlands contiguous to tidal waters, we did 
not propose to change the original acreage limits of NWP 14.
    One commenter stated that the NWP should not authorize public 
transportation crossings. A number of commenters said that the 
distinction between public and private transportation crossings is 
unnecessary. Many commenters requested that the Corps clarify what is 
meant by private and public transportation crossings. Several 
commenters asked whether roads to residential developments would be 
considered public or private.
    NWP 14 previously authorized both public and private road 
crossings. Due to public interest factors, we proposed to increase the 
acreage limit for public transportation crossings for this NWP, with 
acreage limits based on the types of waters affected by the work. For 
the purposes of this NWP, a private crossing is restricted to the use 
of a particular person or group, and is not freely available to the 
public. An example is a driveway crossing a stream to provide access to 
a single family residence. A public crossing is a crossing which is 
intended to serve all citizens, rather than a specific limited group. 
As further clarification, if the responsibility for the highway or road 
maintenance and repair is a county, state, or government entity, the 
road will be considered public. To increase protection of the aquatic 
environment, we are proposing to change the applicable waters for 
linear transportation crossings as follows: (1) Public linear 
transportation crossings constructed in non-tidal waters, excluding 
non-tidal wetlands adjacent to tidal waters, (2) public linear 
transportation crossings constructed in tidal waters and non-tidal 
wetlands adjacent to tidal waters, and (3) private linear 
transportation crossings constructed in all waters of the United 
States.
    Many commenters requested that NWP 14 remain unchanged. Several 
commenters suggested that the acreage limit for public projects should 
be limited to 1 acre and the length of the crossing to no more than 200 
feet. Other commenters stated that the proposed 2 acre limit for public 
transportation crossings is too low and would prefer the original 10 
acre limit that NWP 26 had prior to December 1996. Many commenters said 
that 2 acres is sufficient for public highways, which often have 2 to 4 
lanes. Several commenters stated that public linear transportation 
crossings should have no acreage limit while others said the limit is 
too high and that the proposed modification should be withdrawn. 
Another commenter recommended removing the 200 linear foot limit for 
private crossings and replacing it with a 500 linear foot limit.
    We have carefully considered all comments on the proposed acreage 
limits. The existing limit for private crossings is retained at \1/3\ 
acre and 200 linear feet. For public projects in non-tidal waters, 
excluding non-tidal wetlands adjacent to tidal waters, we have decided 
the proposed 1 acre limit for public linear transportation crossings is 
appropriate to authorize most public linear transportation crossings 
that have minimal adverse effects on the aquatic environment in non-
tidal waters. It is important to note that each crossing of a separate 
waterbody is a single and complete project (see 33 CFR Part 330.2(i)). 
The \1/3\ acre and 200 linear foot limits will be retained for private 
linear transportation crossings and public linear transportation 
crossings in tidal waters and non-tidal wetlands adjacent to tidal 
waters.
    Some commenters asked why the acreage limit for public projects was 
higher than the acreage limit for private projects. Many objected to 
the differences in acreage limits. Several commenters were concerned 
that the proposed modification establishes different thresholds based 
upon whether a project is private or public.
    During our review of transportation projects authorized by NWP 26, 
we found that there were a substantial number of public linear 
transportation crossings with minimal adverse effects on the aquatic 
environment. Approximately 90% of the transportation projects 
authorized by NWP 26 during 1997 resulted in the loss of less than 1 
acre of non-tidal waters. The proposed modification of NWP 14 is 
intended to authorize these types of projects, since NWP 26 will be 
replaced by the proposed new and modified NWPs announced in this 
Federal Register notice. Public linear transportation crossings need to 
be larger, because they must have larger capacities. Private crossings, 
on the other hand, are typically small. Public linear transportation 
crossings also fulfill a greater proportion of public interest factors, 
and the government entities that typically sponsor or build these 
projects have the resources and experience necessary to design these 
projects and provide necessary compensatory mitigation to ensure that 
these projects have minimal adverse effects on the aquatic environment. 
Consequently, these projects are less likely to be contrary to the 
public interest. Public transportation projects often require detailed 
planning

[[Page 39298]]

processes to document compliance with NEPA, Section 404 of the Clean 
Water Act, and many other applicable laws. As a result, we have decided 
that it is appropriate to impose a higher acreage limit for public 
linear transportation projects in non-tidal waters, excluding non-tidal 
wetlands adjacent to tidal waters.
    Public roads serve the general public and allow access for entire 
communities. Other transportation facilities, such as municipal airport 
runways or railroads are constructed for public transportation needs, 
and are considered public if they are accessible to the public as a 
whole. Railroad crossings may be constructed by private entities, but 
may be used by public transportation agencies for mass transit, such as 
commuter rail services. As long as these transportation facilities are 
used by the general public, providing a means of transportation for an 
entire community, these linear transportation crossings will be 
considered public for the purposes of this NWP.
    Many comments were received regarding PCN thresholds. Several 
commenters suggested that notification should be required for all 
projects authorized by this NWP. Some commenters stated that the 
proposed notification requirements were too stringent and some wetland 
impacts should be authorized without any PCN requirements. These 
commenters stated that the PCN requirement should be consistent with 
the notification requirements of NWP 12, and recommended that 
notification should be required if the activity results in the loss of 
more than \1/3\ acre of non-tidal wetlands or the impact exceeds 500 
linear feet in waters of the United States. Another commenter said that 
the PCN threshold should be raised to \1/2\ acre. One commenter stated 
the notification requirements for public and private linear 
transportation projects should be the same. Another commenter wanted to 
know how Corps Districts would identify areas of high value that could 
trigger lower PCN thresholds.
    To make the PCN thresholds of NWP 14 more consistent with the new 
NWPs, the proposed notification threshold has been modified. The 
proposed PCN thresholds for public and private linear transportation 
crossings are the same. Notification will be required for activities 
that result in the loss of greater than \1/4\ acre of waters of the 
United States. Notification will also be required for all activities 
that result in a discharge into special aquatic sites, including 
wetlands. We do not agree that the PCN thresholds of NWP 14 should be 
the same as the PCN thresholds of NWP 12 because the activities 
authorized by these NWPs have different adverse effects on the aquatic 
environment. High value waters will be identified through the regional 
conditioning process. Division engineers can regionally condition this 
NWP to lower the PCN threshold or require notification for all 
activities in specific high value waters.
    Numerous commenters requested clarification concerning what 
constitutes a single and complete linear project. Several commenters 
recommended that the Corps eliminate the practice of piecemealing road 
projects so that NWP 14 authorizes each separate wetland or stream 
impact along the construction corridor. Another commenter suggested 
that the Corps consider allowing the use of this NWP for multiple 
crossings provided the ``no net loss'' goal is met.
    Our NWP regulations already address linear projects and what 
constitutes a single and complete linear project (see 33 CFR Part 
320.2(i)). In paragraph (h) of the proposed modification of this NWP, 
we have provided additional clarification concerning when discretionary 
authority may be exercised for road segments with multiple crossings of 
streams.
    Many commenters believe that airports and runways should not be 
authorized by this NWP. Several commenters suggested that the secondary 
impacts of airport runway construction, such as chemicals and 
pollutants, are a serious concern. Several commenters questioned 
whether railroads are considered public entities.
    The construction, improvement, and expansion of airport runways can 
be authorized by this proposed modification of this NWP, provided the 
adverse effects on the aquatic environment are minimal. These 
facilities are often subject to additional rigorous regulation by other 
State and Federal agencies. Airports will have existing stormwater and 
water quality management plans, and are likely to be closely regulated 
with regard to air quality, noise pollution, point and non-point source 
pollution, and hazardous and toxic substances. Since this NWP requires 
a PCN for most projects, district engineers will have the opportunity 
to review the impacts of the proposed activity. If a project will have 
more than minimal adverse effects on the aquatic environment, the 
District Engineer will assert discretionary authority and require an 
individual permit. Railroads will typically be considered public 
transportation because, as previously discussed, a railroad may be 
constructed by a private entity, but the tracks are often utilized by 
the general public for public transportation. As long as these 
facilities are generally accessible to the public, by providing a means 
of mass transit or services for a community, railway crossings will be 
considered public.
    One commenter stated that regional conditions should prohibit the 
disruption of water flows by requiring culverts, bridges, etc. Another 
commenter asked for clarification of the terms in paragraph (g) of the 
proposed NWP 14 modification. Another commenter requested that 
applicants provide detailed engineering information on the crossings to 
ensure that they are designed properly.
    General Condition 21, Management of Water Flows, requires NWP 
activities to be designed and constructed to maintain preconstruction 
downstream flow conditions, to the maximum extent practicable. 
Activities authorized by this NWP should not result in more than minor 
changes to the hydraulic flow of a stream and should not result in an 
increase in flooding upstream or downstream of the crossing. Proposed 
General Condition 27 also applies to activities authorized by this NWP. 
To construct the crossing, some work in the stream channel is 
necessary. Examples include bank stabilization, the placement of fill 
and culverts, depressing the culvert into the stream bed, etc. All of 
this work should take place only in the immediate vicinity of the 
crossing. The construction of the crossing should result in only minor 
impacts to the hydraulic characteristics of the stream. General 
Condition 9, Water Quality, requires the permittee to implement a water 
quality management plan to ensure the work does not cause more than 
minimal adverse effects to the downstream aquatic system. In general, 
where a state or tribal entity requires such a plan, this requirement 
will be considered fulfilled. If a water quality management plan is not 
required by the state, the District Engineer must decide if one is 
needed for the proposed activity. We do not agree that applicants 
should be required to provide detailed engineering information 
concerning the crossing. It is incumbent upon the permittee to ensure 
that the crossing is designed so that it complies with all of the 
conditions of the NWP, especially General Condition 21.
    One commenter questioned why a mitigation plan was required for 
public linear transportation projects but not for private crossings. 
Several commenters asked whether compensatory mitigation would be 
required for all crossings.
    We have modified this provision of NWP to require a mitigation 
proposal

[[Page 39299]]

for both public and private linear transportation crossings. Paragraph 
(c) of the proposed modification of NWP 14 requires the prospective 
permittee to submit a mitigation proposal to offset permanent losses of 
waters of the United States and a statement describing how temporary 
losses will be minimized to the extent practicable.
    Many commenters objected to the inclusion of attendant features to 
the linear transportation project, such as interchanges, stormwater 
detention basins, rail spurs, or water quality enhancement measures in 
the NWP. Many commenters approved the inclusion of such features, and a 
couple of commenters requested that the NWP authorize non-linear 
features such as vehicle maintenance or storage buildings, parking 
lots, train stations, and hangars. One commenter said that this NWP 
should not authorize new transportation facilities, which typically 
result in significant indirect and cumulative impacts.
    Features integral to the crossing, such as interchanges, rail 
spurs, stormwater detention basins, and water quality enhancement 
measures are authorized by this NWP. This requirement will help ensure 
that the adverse effects of the entire single and complete project are 
considered. The attendant features must be integral to the crossing, 
however, and the combined loss of waters of the United States for a 
single and complete project cannot exceed the acreage limit of this 
NWP. We are not proposing to modify NWP 14 to authorize non-linear 
transportation activities, because these activities have greater 
potential to result in more than minimal adverse effects on the aquatic 
environment.
    The proposed modification of this NWP can authorize the 
construction of new linear transportation crossings, provided the 
proposed work results in minimal adverse effects on the aquatic 
environment. The notification requirements, the District Engineer's 
ability to impose special conditions on a particular activity, and the 
District Engineer's ability to exercise discretionary authority and 
require an individual permit will ensure that the activities authorized 
by this NWP result in minimal adverse effects on the aquatic 
environment.
    Several commenters recommended adding conditions that appear to 
apply to specific regions. One commenter requested that: this NWP 
should be prohibited in watersheds with substantial aquatic resource 
losses and in watersheds which have impervious surfaces over a 
substantial percentage of the landscape; the acreage limits be modified 
to protect regionally significant resources; linear foot limitations 
should be imposed on activities in streams with regionally important 
resources; kick-out provisions should be provided for Federal agencies; 
and compensatory mitigation should be required to fully offset all 
impacts to ensure no net loss of aquatic resources. Another commenter 
requested that this NWP: prohibit activities below the existing water 
level of the stream, limit work affecting water quality between March 
15 and June 15, prohibit the use of stream bed material for erosion 
control, limit the use of rip rap, limit clearing of forested stream 
corridors to the minimum necessary, require revegetation of disturbed 
areas to reduce erosion, require culverts for temporary rock stream 
crossings higher than 18 inches, maintain stream bed gradient during 
construction, and size and place culverts to avoid creating a drop 
between the downstream end of the culvert and the downstream water 
surface elevation.
    All of the recommendations cited in the previous paragraph are best 
addressed as regional conditions and case-specific special conditions 
for an NWP authorization.
    A couple of commenters requested that this NWP authorize some 
stream channelization. Several commenters requested that this NWP 
prohibit stream channelization.
    Paragraph (f) of the proposed modification of NWP 14 states that 
this NWP cannot be used to channelize a stream, but some channel 
modification in the immediate vicinity of the crossing can be conducted 
to ensure that water flow through the crossing does not result in 
additional flooding, erosion, or other adverse impacts that may 
compromise public safety.
    One commenter was confused about the manner in which the authorized 
activities and applicable waters were described. We have clarified this 
section, with the acreage limits for each category of activities and 
applicable waters.
    This NWP is subject to proposed General Conditions 25, 26, and 27, 
which will substantially reduce its applicability. General Condition 25 
prohibits the use of this NWP to authorize discharges into designated 
critical resource waters and wetlands adjacent to those waters. Due to 
the requirements of General Condition 26, NWP 14 activities resulting 
in the loss of impaired waters, including adjacent wetlands, are 
prohibited unless prospective permittee demonstrates to the District 
Engineer that the activity will not result in further impairment of the 
waterbody. General Condition 27 prohibits the use of NWP 14 to 
authorize permanent, above-grade wetland fills in waters of the United 
States within the 100-year floodplain, unless the prospective permittee 
clearly demonstrates that the project and associated mitigation will 
not decrease the flood-holding capacity and no more than minimally 
alter the hydrology, flow regime, or volume of waters associated with 
the 100-year floodplain.
    In response to a PCN, district engineers can require special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, provides for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities.
27. Stream and Wetland Restoration Activities
    In the July 1, 1998, Federal Register notice, we proposed to modify 
NWP 27 to authorize the restoration of non-Section 10 streams, in 
addition to the wetland and riparian restoration and enhancement 
activities already authorized by this NWP.
    Some commenters supported the proposed modifications. Other 
commenters said that no restrictions should be placed on the NWP. 
Several commenters stated that the NWP meets the criteria for minimal 
effects. One commenter supported modification of NWP 27 to authorize 
activities on private property. Several commenters opposed the proposed 
modifications to NWP 27 because they believe that wetlands and streams 
would be adversely affected by the proposed changes.
    The purpose of the proposed modification of NWP 27 is to authorize 
the restoration of non-tidal streams. NWP 27 previously authorized only 
the restoration former non-tidal wetlands and riparian areas, the 
enhancement of degraded wetlands and riparian areas, and the creation 
of wetlands and riparian areas. We are also proposing to modify NWP 27 
to authorize the restoration of tidal waters. Currently, NWP 27 only 
authorizes the restoration of non-tidal wetlands and riparian areas. 
The enhancement of degraded wetlands and riparian areas and the 
creation of wetlands and riparian areas is authorized in all waters of 
the United States, including tidal waters. We believe, that by adding 
stream and tidal wetland restoration activities to this NWP, that the 
overall aquatic

[[Page 39300]]

environment will benefit by providing an efficient means of authorizing 
the restoration and enhancement of these areas.
    One commenter recommended eliminating wetland restoration 
activities from this NWP and limiting it only to enhancement 
activities. This commenter believes that restoration activities do not 
require a Section 404 permit because the project area is not currently 
a wetland. Another commenter asked if NWP 27 applies to the restoration 
of riparian zones outside of wetlands and other waters of the United 
States.
    Many wetland restoration activities require a Section 404 permit 
because there are discharges into waters of the United States that are 
necessary to conduct the restoration activity, such as connecting the 
restored wetland to other waters of the United States. The same 
principle applies to wetland creation activities. NWP 27 authorizes the 
restoration of riparian zones that are waters of the United States 
(e.g., wetlands adjacent to a stream) and activities in waters of the 
United States associated with the restoration of upland riparian zones. 
For example, to establish a vegetated upland riparian zone, some bank 
stabilization activities in waters of the United States may be 
necessary, such as the planting of willows along the bank. If the 
proposed riparian zone restoration activity is conducted entirely 
outside of waters of the United States, then no Corps permit is 
required.
    One commenter requested the inclusion of more examples of stream 
restoration and enhancement activities, such as the addition of 
spawning gravel and the removal of accumulated sediment from ponds to 
prevent sediments from being washed downstream. Another commenter 
stated that the list of examples of authorized activities in the NWP is 
too inclusive and vague. Other commenters expressed concern that 
activities not directly related to the restoration of ecological values 
or aquatic functions could be authorized by this NWP. Several 
commenters recommended excluding the placement rip rap from NWP 27 and 
that the appropriate use of biological materials should be encouraged.
    The list of activities in the paragraph following paragraph (c) of 
the proposed modification of NWP 27 is intended only to provide 
examples and is not a complete list of activities authorized by this 
NWP. The next paragraph in NWP 27 lists activities that are not 
authorized by the NWP. If the prospective permittee has questions about 
a particular stream and wetland restoration or enhancement activity, 
then he or she should contact the District Engineer to determine if the 
proposed work can be authorized by NWP 27. For those projects requiring 
notification, the District Engineer will determine if the proposed work 
satisfies the terms and conditions of NWP 27 and will exercise 
discretionary authority if the proposed work will result in more than 
minimal adverse effects on the aquatic environment. Division engineers 
can also regionally condition this NWP to exclude certain activities or 
prohibit its use in specific waterbodies or geographic regions. We do 
not agree that the use of rip rap should be excluded from this NWP, 
because rip rap provides habitat for many aquatic organisms and can 
help reduce adverse effects to water quality resulting from soil 
erosion on the project site.
    A number of commenters were confused about the scope of this NWP 
and asked which types of waters are subject to this NWP. Several 
commenters recommended expanding the applicable waters for this NWP to 
include Section 10 waters. Other commenters suggested excluding tidal 
wetlands from this NWP. One commenter stated that the NWP should be 
used only in small lengths of streams or small wetland areas.
    We have modified the first paragraph of the proposed modification 
of this NWP to clarify the scope of applicable waters for this NWP. 
Since its issuance in 1991, NWP 27 has authorized wetland and riparian 
restoration, enhancement, and creation activities in Section 10 waters, 
although certain activities were restricted to non-tidal Section 10 
waters. This NWP authorizes activities that restore former waters, 
including tidal and non-tidal wetlands, enhance degraded tidal and non-
tidal wetlands and riparian areas, create tidal and non-tidal wetlands 
and riparian areas, and restore and enhance non-tidal streams and non-
tidal open waters. This NWP can be used to restore and enhance Section 
10 streams and open waters, as long as they are non-tidal. Other 
Section 10 activities authorized by this NWP include the restoration of 
former non-tidal wetlands in Section 10 waters, the enhancement of 
degraded wetlands in navigable waters, and the creation of wetlands in 
navigable waters.
    Restricting the use of this NWP to small segments of streams and 
small wetlands is unnecessary because this NWP authorizes only those 
activities that improve the aquatic environment. Adding such a 
restriction is also likely to discourage larger stream and wetland 
restoration and enhancement projects by requiring prospective 
permittees to go through a more complicated and expensive permit 
process.
    Many commenters recommended conditioning this NWP to prohibit 
conversion and alteration of habitat. One of these commenters 
recommended prohibiting the conversion of one aquatic habitat type to 
another type unless the intent of the conversion is to restore the area 
to an aquatic habitat type that historically existed on that site. One 
commenter recommended including a provision in the NWP to allow the 
construction of small impoundments in ephemeral and/or intermittent 
reaches of streams to benefit water quality and waterfowl.
    The proposed modification of this NWP prohibits the conversion of 
natural streams or wetlands to another aquatic use, unless the 
permittee recreates similar aquatic habitat types in a different 
location on the project site and the project results in aquatic 
resource functional gains. However, only non-tidal waters can be 
converted to other types of aquatic habitat. We are proposing to modify 
the text of the NWP to specify that any relocated non-tidal aquatic 
habitat type must be created on the project site, so that the 
relocation is not limited to creating the aquatic habitat type in 
adjacent uplands. We have added a prohibition against converting tidal 
waters, including tidal wetlands, to other aquatic uses or relocating 
tidal waters. We do not believe that is necessary to limit the 
conversion to aquatic habitat types that historically existed on the 
project site, because the permittee may want to conduct activities that 
provide more benefits to the aquatic environment than the historic 
aquatic habitat type provided. This NWP can authorize small 
impoundments in ephemeral and/or intermittent streams, provided those 
aquatic habitat types are recreated on the project site, the adverse 
effects on the aquatic environment are minimal, and there are net 
functional gains.
    Several commenters expressed concern with the use of this NWP with 
other permits. Other commenters were uncertain as to whether General 
Condition 15 applies to NWP 27.
    NWP 27 may be used with other NWPs to authorize a single and 
complete project, provided the authorized work results in minimal 
adverse effects on the aquatic environment, individually or 
cumulatively. For example, NWP 33 may be used to provide temporary 
access to the construction site for activities authorized by NWP 27. 
The proposed modification of General

[[Page 39301]]

Condition 15 applies to NWP 27 and all other NWPs.
    We have also been made aware of situations where participants in 
wetland restoration programs, such as the U.S. Department of 
Agriculture's Wetlands Reserve Program, want to revert their land back 
to its prior condition. If the land was prior converted cropland before 
the implementation of the wetland restoration activity, and no 
associated discharge of dredged or fill material into waters of the 
United States was required to conduct the wetland restoration activity, 
the landowner did not require a Section 404 permit. If the landowner 
wants to revert the land back to its prior condition, he or she could 
not utilize the reversion provision of NWP 27, because NWP 27 was not 
needed to restore wetlands on the prior converted wetland. To address 
this issue, we are proposing to add a provision to NWP 27 that allows 
the landowner to revert the land back to its prior condition using NWP 
27, even though no Section 404 permit was needed to conduct the wetland 
restoration activity, provided the prior-converted cropland has not 
been abandoned. We believe this provision is necessary to provide 
equity for landowners. This provision may encourage more landowners to 
restore wetlands on prior converted cropland because they will not have 
to apply for an individual permit at a later date to revert the land 
back to its prior condition.
    Several commenters stated that notification to the resource 
agencies should be required for all activities authorized by this NWP. 
One commenter recommended requiring agency coordination for all 
activities authorized under part (iv) of this NWP. This commenter also 
recommended that project proponents for stream restoration activities 
should be required to coordinate with the Corps and Federal and State 
fish and wildlife agencies prior to submitting a PCN under part (iv). 
Many commenters suggested PCN thresholds, ranging from \1/10\ acre to 1 
acre. One commenter stated that downstream landowners should be 
notified of proposed stream restoration projects.
    To clarify the notification requirements of this NWP, we are 
proposing to restructure NWP 27 to make it easier to understand which 
activities require notification to the District Engineer. Notification 
is not required for: (1) activities on public or private land where the 
landowner has an agreement with the FWS or NRCS, (2) activities on 
Federal land, or (3) activities on reclaimed surface coal mined land in 
accordance with a Surface Mining Control and Reclamation Act permit 
issued by the Office of Surface Mining or the applicable state agency. 
Notification is also required if a permittee wants to use NWP 27 to 
authorize the construction of a compensatory mitigation site (see the 
Note at the end of NWP 27). We disagree that agency coordination should 
be conducted for all activities authorized by this NWP, because this 
NWP authorizes activities that benefit the aquatic environment. Corps 
district personnel possess the knowledge and experience to assess the 
environmental effects, both beneficial and adverse, of those activities 
requiring notification. If the proposed work will result in more than 
minimal adverse effects on the aquatic environment, the District 
Engineer will exercise discretionary authority and require an 
individual permit. Requiring project proponents to coordinate with the 
Corps and fish and wildlife agencies prior to submitting a PCN is 
unlikely to provide any benefits for the aquatic environment, and will 
serve only to discourage stream restoration projects because the 
authorization process will become too burdensome for many landowners. 
For many of the reasons cited above, we do not believe it is necessary 
to place a PCN threshold based on acreage on this NWP, or to notify 
downstream landowners of proposed stream restoration projects.
    Several commenters stated that the NWP is too vague and is 
vulnerable to abuse. A number of commenters requested the inclusion of 
narrow definitions of authorized activities in the NWP. Two commenters 
asked how the Corps will assess functional gains. One commenter stated 
that NWP 27 should authorize only ecological-based stream restoration. 
One commenter asked if NWP 27 was intended to apply to the compensatory 
mitigation requirements of other Corps permits. Another commenter 
recommended that the NWP require the planting of native species at the 
site.
    No activities or discharges not directly related to the restoration 
of ecological values or aquatic functions are authorized by this NWP. 
This NWP can be used to authorize wetland and stream restoration 
activities required by other Corps permits. The intent of the proposed 
modification of this permit is to facilitate the restoration of 
degraded or altered streams and wetlands. The goals of the proposed 
activities must be based upon the enhancement, restoration, or creation 
of the ecological conditions that existed, or may have existed, in the 
stream or wetland prior to disturbance, or to otherwise improve the 
aquatic functions and values of such areas. The activities may include, 
but are not limited to, the modification of the hydrology, vegetation, 
or physical structure of the altered or degraded stream or wetland. If 
additional protection is necessary, division engineers can add regional 
conditions to this NWP. We have added a provision to the proposed 
modification of NWP 27 that requires the permittee to utilize native 
plant species if he or she is vegetating the project site. We are 
limiting this requirement to plant species installed by the permittee, 
because non-native plant species may naturally colonize the project 
site and we cannot require the permittee to remove those plants.
    Some commenters recommended requiring binding agreements for 
activities authorized by this NWP. One commenter stated that management 
plans were needed in all cases. One commenter recommended requiring 
detailed restoration plans. One commenter recommended prohibiting 
future fills in areas that have reverted to prior condition under parts 
(ii) and (iii). Another commenter stated that wetland and stream 
restoration and enhancement activities by State resource management 
agencies should be included in NWP.
    We do not believe that binding agreements or detailed restoration 
plans are necessary in all cases. Where the NWP authorizes reversion of 
the created or restored wetlands to its non-wetland state (i.e., in 
those cases involving private parties entering into contracts or 
agreements with, or documentation of prior condition by, the NRCS or 
FWS under special wetland programs or an Office of Surface Mining (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 is required. This 
reversion can only occur when these instruments clearly document the 
prior condition. In all other cases where the reversion opportunity is 
not included, a Corps permit would be required for alteration of the 
site. Therefore, no binding agreement, detailed restoration plan, or 
documentation of the prior conditions will be required. Because the 
permit is limited to restoration, enhancement, and creation activities 
and because authorizations for those projects do not provide the 
opportunity for reversion, except as noted above, without a permit from 
the Corps, we believe that a management plan would be unnecessarily 
burdensome without

[[Page 39302]]

additional environmental benefits. Activities by State natural resource 
management agencies are already authorized by this NWP, but may require 
notification to the Corps unless those activities are in the categories 
described by paragraphs (a)(1), (a)(2), or (a)(3).
    One commenter stated that evaluation of upstream and downstream 
impacts should be conducted. Another commenter stated that NWP 27 
should not authorize activities that impede fish passage. A couple of 
commenters requested that the NWP should not be allowed in exceptional 
use waters and wild and scenic rivers.
    All activities authorized by this NWP must comply with General 
Condition 21, Management of Water Flows. Compliance with this condition 
will ensure that the authorized activity results in minimal adverse 
effects on hydrology upstream and downstream of the project site. 
Similarly, all activities authorized by this NWP must comply with 
General Condition 4, Aquatic Life Movements, to ensure that the 
authorized work results in no more than minimal adverse effects on 
aquatic life movements. The requirement to comply with General 
Condition 7 will ensure the proper coordination to prevent adverse 
impacts to Federally-designated wild and scenic rivers. In addition, 
districts have coordinated with Federal and State natural resource 
agencies to discuss appropriate regional conditioning for the NWPs. 
Proposed General Condition 25 requires notification to the District 
Engineer if the proposed activity will occur in NOAA-designated marine 
sanctuaries, National Estuarine Research Reserves, National Wild and 
Scenic Rivers, critical habitat for Federally-listed threatened or 
endangered species, coral reefs, State natural heritage sites, and 
outstanding national resource waters or other waters officially 
designated by a State. Restricting the use of NWP 27 in exceptional use 
waters will also be considered at the district level.
    This NWP is subject to the requirements of proposed General 
Conditions 25 and 26. General Condition 25 requires the prospective 
permittee to notify the District Engineer in accordance with General 
Condition 13 for activities in designated critical resource waters, 
including wetlands adjacent to those waters. The District Engineer may 
authorize NWP 27 activities in these waters if the adverse effects are 
no more than minimal. General Condition 26 prohibits the use of this 
NWP to authorize discharges resulting in the loss of greater than 1 
acre of impaired waters, including adjacent wetlands. NWP 27 activities 
resulting in the loss of 1 acre or less of impaired waters, including 
adjacent wetlands, are prohibited unless prospective permittee 
demonstrates to the District Engineer that the activity will not result 
in further impairment of the waterbody.
    In the proposed modification of NWP 27, we are proposing to add a 
note to the NWP to clarify the compensatory mitigation is not required 
for activities authorized by this NWP, provided the work results in a 
net increase in aquatic resource functions and values in the area. The 
note also states that NWP 27 can be used to authorize compensatory 
mitigation projects, including mitigation banks, as long as the project 
includes compensatory mitigation for any losses of waters of the United 
States that may occur as a result of constructing the compensatory 
mitigation project. The proposed note also states that NWP 27 does not 
authorize reversion of sites used as compensatory mitigation projects 
to prior conditions.
    In response to a PCN, district engineers can require special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, provides for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities.
39. Residential, Commercial, and Institutional Developments
    This NWP was proposed as NWP A in the July 1, 1998, Federal 
Register notice. NWP 26 has been used extensively to authorize 
discharges of dredged or fill material into waters of the United States 
for residential, commercial, industrial, and institutional development 
activities. Based on the comments received in response to the July 1, 
1998, Federal Register notice, we have made changes to the proposed 
NWP, which are discussed in further detail below. We are proposing to 
use an index to determine the acreage limit for this NWP. The index 
will be based on a percentage of the project area, with a \1/4\ acre 
base limit. The maximum acreage loss that can be authorized by this NWP 
is 3 acres. We are also proposing to restrict the list of activities 
authorized by this NWP to building pads, building foundations, and 
attendant features for residential, commercial, and institutional 
development activities. We have reduced the PCN threshold from \1/3\ 
acre to \1/4\ acre. A PCN will be required for all activities that 
involve discharges of dredged or fill material into open waters. We 
believe that these changes will ensure that this NWP authorizes only 
those development activities that are similar in nature and have 
minimal adverse effects on the aquatic environment, individually or 
cumulatively. In addition, to further ensure that the NWP authorizes 
activities with only minimal adverse effects on the aquatic 
environment, most, if not all, Corps districts will impose regional 
conditions on this NWP.
    General: Nearly 350 comments were received that specifically 
addressed this NWP. Many commenters opposed the issuance of this NWP, 
but a few favored its issuance. Many of the commenters who objected to 
the issuance of this NWP believe that it authorizes activities with 
more than minimal impacts, resulting in excessive cumulative adverse 
effects on the aquatic environment. Several commenters stated that the 
types of activities authorized by this NWP should be subject to the 
individual permit process and public comment. Another commenter stated 
that this NWP is essentially the same as NWP 26, with an expanded scope 
of waters where it can be used.
    NWPs can only authorize activities that have minimal adverse 
effects on the aquatic environment, individually or cumulatively. We 
have established PCN thresholds to allow district engineers to review 
all activities authorized by this NWP that could potentially result in 
more than minimal adverse effects on the aquatic environment. We 
believe that, in most cases, residential, commercial, and institutional 
development activities that result in the loss of less than \1/4\ acre 
of wetlands have minimal adverse effects on the aquatic environment. In 
watersheds or waterbodies where losses of less than \1/4\ acre of 
waters of the United States may result in more than minimal adverse 
effects, division engineers can regionally condition this NWP to lower 
the notification threshold or require notification for all activities. 
This NWP can also be revoked by division engineers in those watersheds 
or geographic regions where use of the NWP will cause more than minimal 
cumulative adverse effects on the aquatic environment. By restricting 
the proposed NWP to the construction of building pads, building 
foundations, and attendant features, we are limiting the use of this 
NWP to the development activity, which is much narrower than the scope 
of activities that could be authorized by NWP 26.

[[Page 39303]]

    Types of Waters Affected: Several commenters objected to this NWP 
because it authorizes residential, commercial, and institutional 
development activities in all non-tidal waters of the United States, 
excluding non-tidal wetlands contiguous to tidal waters. They believe 
that the scope of applicable waters for this NWP will increase wetland 
destruction. In contrast, two commenters stated that this NWP should be 
applicable in all non-tidal waters, including non-tidal wetlands 
contiguous to tidal waters. Another commenter recommended that wetlands 
and waters adjacent to tidal waters should be excluded from the use of 
this NWP as are contiguous wetlands. Two commenters stated that this 
NWP should authorize only activities in isolated wetlands less than 1 
acre in size.
    To increase protection of the aquatic environment, we are proposing 
to change the applicable waters of this NWP to: non-tidal waters, 
excluding non-tidal wetlands adjacent to tidal waters. This change in 
applicable waters will reduce the geographic extent in which NWP 39 can 
be used. High value isolated waters can receive additional protection 
through regional conditions to restrict or prohibit the use of this NWP 
in those waters.
    Another commenter stated that the expansion of applicable waters 
from headwaters and isolated wetlands will result in degradation of 
water quality by destroying wetlands which trap sediments and take up 
pollutants. This commenter also stated that the NWP does not specify 
stormwater management requirements needed to prevent water quality 
degradation.
    We are proposing to modify General Condition 9, Water Quality, to 
require a water quality management plan for activities authorized by 
this NWP. The purpose of the water quality management plan is to ensure 
that the activities authorized by this NWP result in only minimal 
degradation of downstream water quality. The permittee must utilize 
stormwater management techniques and vegetated buffers to ensure that 
the project complies with this condition and does not result in 
substantial degradation of downstream water quality. The requirements 
of proposed General Condition 26 will also prevent further degradation 
of impaired waters by limiting the use of this NWP to authorize 
discharges in impaired waterbodies and adjacent wetlands.
    Types of Activities Authorized: Many commenters stated that this 
NWP does not comply with Section 404(e) of the Clean Water Act, which 
requires activities authorized by general permits to be ``similar in 
nature.'' They believe that this NWP authorizes a wide variety of 
activities and does not comply with this requirement. One commenter 
recommended that the Corps develop a more limited list of activities 
authorized by this NWP. Another commenter suggested that a separate NWP 
should be developed for each category of activities. Several other 
commenters objected to this NWP because they believe that it authorizes 
activities that are not water dependent and that these activities 
should not be authorized in wetlands. One commenter suggested that the 
NWP should authorize only the construction of buildings and attendant 
features and should not authorize ball fields and golf courses.
    In response to these comments, we have restricted the list of 
activities authorized by the proposed NWP to building pads, 
foundations, and attendant features constructed for residential, 
commercial, and institutional purposes. A structure must be built on 
the building pad or foundation to quality for authorization under this 
NWP. Attendant features, as defined for the purposes of this NWP, are 
those features necessary for the use, operation, and maintenance of the 
residential, commercial, or institutional building. District engineers 
will determine whether or not a particular attendant feature can be 
authorized by this NWP. Attendant features can include, but are not 
limited to: roads constructed within the development project area, 
parking lots, storage buildings, garages, physical plant, sidewalks, 
stormwater management facilities, utilities, lawns and landscaped 
features, and recreational facilities such as playgrounds for schools 
and day care centers. We do not believe that it is necessary to develop 
a separate NWP for each category of activity because limiting the 
proposed NWP to building pads and attendant features necessary for the 
operation and use of those buildings complies with the similar in 
nature requirement of Section 404(e) of the Clean Water Act. The 
purpose of the building and attendant features (i.e., whether it is for 
residential, commercial, industrial, or institutional purposes) is 
usually irrelevant in terms of adverse effects on the aquatic 
environment. The construction of a building pad or foundation for a 
residential, commercial, or institutional building has the same effects 
on aquatic habitat because it replaces an aquatic area with a building. 
Issuing a separate NWP for each type of development activity would also 
result in a much more complex NWP program with a substantially larger 
number of NWPs. Authorization of the necessary attendant features with 
the building pad or foundation will help ensure that the NWP authorizes 
all activities associated with a single and complete project and avoid 
piecemealing of projects. In addition, by authorizing the entire 
development project with one NWP, we will be better able to assess the 
adverse effects of the entire development on the aquatic environment.
    Residential developments include single and multiple unit 
developments. A residential subdivision may be authorized by this NWP 
as a single and complete project. This NWP also authorizes the 
construction of apartment complexes. Developers and speculative 
builders can use this NWP to construct single family residences. We 
have removed the language from the proposed NWP A published in the July 
1, 1998, Federal Register notice that prohibited the use of this NWP to 
authorize the construction of a single family residence and attendant 
features for personal residence for the permittee. Although this change 
results in some overlap between this NWP and NWP 29 because they both 
can authorize single family residences, we believe that this overlap 
does not result in less protection of the aquatic environment. The 
construction of a single family residence, whether it is constructed by 
the property owner who will live in the residence or by a contractor or 
speculative builder who will later sell the completed residence, has 
the same adverse effects on the aquatic environment. Although NWP 39 
may have a higher indexed acreage limit than NWP 29, the geographic 
scope of applicable waters for NWP 39 is much less than the scope of 
applicable waters for NWP 29. NWP 39 cannot be used to authorize 
discharges into non-tidal wetlands adjacent to tidal waters, but NWP 29 
can authorize discharges in those non-tidal wetlands. NWP 39 has a more 
stringent avoidance and minimization requirement than NWP 29 because it 
requires the permittee explain, in the notification submitted to the 
District Engineer, how avoidance and minimization was achieved on the 
project site. District engineers will receive PCNs for activities that 
result in the loss of greater than 1/4 acre of waters of the United 
States or involve discharges into open waters, such as streams. Based 
on the review of the PCN, the District Engineer will determine if the 
proposed work results in minimal adverse effects on the

[[Page 39304]]

aquatic environment and qualifies for authorization under NWP 39. We 
also believe that prohibiting the use of NWP 39 to authorize the 
construction of a single family home for the property owner, but 
allowing a contractor or speculative builder to use NWP 39 to construct 
a single family residence, is unfair to the regulated public because it 
places different restrictions based solely on who the applicant is 
(i.e., whether the applicant will be the resident of the home or if the 
applicant is a contractor or a speculative builder will sell the 
completed home at a later time to a future occupant). Such inequities 
are likely to lead to selective use of these two NWPs. A property owner 
can ask a contractor to apply for NWP 39 authorization for a higher 
acreage limit, instead of applying for an NWP 29 authorization. Since 
NWPs can authorize only those activities that result in more than 
minimal adverse effects on the aquatic environment, individually or 
cumulatively, we believe this overlap between NWPs 29 and 39 is not 
contrary to Section 404(e) of the Clean Water Act.
    Commercial developments authorized by this NWP include, but are not 
limited to, retail and wholesale stores, shopping centers, industrial 
facilities, malls, restaurants, hotels, business parks, and other 
buildings for the production, distribution, and selling of goods and 
services, as well as attendant features for those buildings. 
Institutional developments include, but are not limited to, schools, 
police stations, fire stations, government office buildings, libraries, 
courthouses, public works buildings, college or university buildings, 
hospitals, and places of worship. This NWP does not authorize the 
construction of new ski areas or the installation of oil or gas wells.
    One commenter stated that the term ``infrastructure'' is poorly 
defined in the NWP. Another commenter suggested that infrastructure 
should be authorized by a separate NWP. Three commenters recommended 
that this NWP authorize the roads constructed by State or local 
governments to the development, not just the roads within the 
development.
    For the purposes of the proposed NWP, infrastructure includes 
attendant features necessary for the operation of the residential, 
commercial, or institutional development or building, such as 
utilities, roads, and stormwater management facilities. Utilities that 
are not an integral part of the development, but are shared with other 
developments, may be authorized by other NWPs, such as NWP 12, regional 
general permits, or individual permits. The proposed NWP authorizes 
only those roads within the project area (e.g., the subdivision). Roads 
leading to the project area, including those roads constructed by State 
or local governments, may be authorized by NWP 14, another NWP, 
regional general permit, or individual permit. These roads typically 
serve other areas and may be considered as separate single and complete 
projects.
    The proposed NWP does not authorize discharges of dredged or fill 
material into waters of the United States for the construction or 
expansion of golf courses unless the golf course is an integral part of 
a residential subdivision. However, this NWP may be used to authorize 
the clubhouse, storage buildings, or garage for a golf course. A golf 
course that is not an integral part of a residential subdivision may be 
authorized by proposed NWP 42, Recreational Facilities, provided the 
golf course is designed and constructed in a manner that complies with 
the terms of that NWP. Golf courses as primary projects are not 
authorized by this NWP because they do not require building pads or 
foundations to fulfill their primary purpose. Rather, the clubhouse, 
storage building, or garage is an attendant feature of the golf course, 
not vice versa. Golf courses can also be authorized by other NWPs, 
regional general permits, or individual permits.
    One commenter requested that the Corps develop a separate NWP for 
shopping centers because shopping centers differ from residential, 
commercial, and institutional developments. Another commenter stated 
that institutional facilities should include reuse plants, wastewater 
treatment facilities, and water treatment plants. One commenter stated 
that community recreation activities should not be authorized by this 
NWP.
    We do not believe it is necessary to issue a separate NWP for 
shopping centers because shopping centers are a specific type of 
commercial development. The adverse effects on the aquatic environment 
resulting from the construction and use of shopping centers are similar 
to the impacts of other types of commercial developments. Reuse plants, 
wastewater treatment facilities, and water treatment plants may be 
authorized by this NWP, at the discretion of the District Engineer. We 
cannot list every type of residential, commercial, or institutional 
development that is authorized by the proposed NWP because such a list 
would be impractical and unnecessarily restrict the use of this NWP for 
other development activities that have minimal adverse effects on the 
aquatic environment. For those discharges that require notification the 
District Engineer will determine if the proposed activity qualifies for 
authorization under this NWP. For discharges that do not require 
notification, a permittee can contact the appropriate Corps district 
office to determine if his or her development activity is eligible for 
this NWP.
    A commenter requested that the NWP explicitly authorize all 
commercial and industrial activities because this NWP could be 
interpreted as not authorizing general industry construction. This 
commenter stated that there is no difference between commercial 
developments and general industrial developments. Another commenter 
requested clarification as to whether the term ``institutional 
developments'' includes government facilities.
    We agree with these commenters and have stated in the text of the 
proposed NWP that industrial facilities and government office building 
pads, foundations, and attendant features may be authorized by this 
NWP.
    We do not agree that community recreation activities should not be 
authorized by this NWP, because NWP 39 authorizes attendant features 
associated with a residential, commercial, or institutional 
development. These attendant features may include playgrounds and 
playing fields, provided those facilities are constructed in 
conjunction with a residential subdivision or school building. 
Excluding these features would be contrary to the purpose of the 
proposed NWP, which is to authorize all necessary attendant features 
associated with the buildings as part of a single and complete project. 
This NWP does not authorize discharges of dredged or fill material into 
waters of the United States for the construction of recreational 
facilities unless those recreational facilities are attendant features 
for residential, commercial, or institutional buildings. However, the 
building need not be constructed in waters of the United States for the 
attendant features to be authorized by NWP 39. Recreational facilities 
not constructed with residential, commercial, or institutional 
buildings may be authorized by proposed NWP 42, other NWPs, regional 
general permits, or individual permits.
    Several commenters stated that rechannelization of streams should 
not be authorized by this NWP. One commenter said that stream 
rechannelization would not comply with the proposed modifications to 
General Conditions 21 and 9 because rechannelization causes more than 
minor changes in flow characteristics and could measurably degrade 
water quality. Another commenter stated that

[[Page 39305]]

the list of authorized activities should include drainage facilities, 
culverts, and drainage ditches.
    To address concerns regarding stream channelization associated with 
residential, commercial, and institutional development projects, we 
have added paragraph (j) to proposed NWP 39. Paragraph (j) prohibits 
the channelization or relocation of stream beds downstream of the point 
on the stream where the average annual flow is 1 cubic foot per second. 
Therefore, only small streams can be channelized or relocated by this 
NWP. We believe that this restriction will help ensure that 
residential, commercial, and institutional development activities will 
result in minimal adverse effects on the aquatic environment. It should 
also be noted that notification is required for all discharges 
resulting in the loss of open waters, which allows district engineers 
to review all proposed activities in streams and other open waters. 
Division engineers can also regionally condition this NWP to prohibit 
the channelization or relocation of high value streams with average 
annual flows of 1 cubic foot per second or less. Channelization or 
relocation of stream segments with average annual discharges of greater 
than 1 cubic foot per second may be authorized by regional general 
permits or individual permits. The construction or maintenance of 
drainage facilities, culverts, and drainage ditches may be authorized 
by this NWP only if they are attendant features necessary for the 
residential, commercial, or institutional building. Drainage facilities 
and ditches may be part of a stormwater management facility or road. 
Culverts may be used to construct road crossings in the residential, 
commercial, or institutional development.
    Acreage Limit: In the July 1, 1998, Federal Register notice, we 
requested comments on whether a simple acreage limit should be used for 
this NWP or whether the acreage limit should be indexed or based on a 
sliding scale. We proposed options for a simple limit of 3 acres and an 
indexed acreage limit based on parcel size. Many commenters said that a 
simple acreage limit should be used instead of indexing or a sliding 
scale. A few commenters stated that the 3 acre limit is adequate. Many 
commenters believe that the proposed acreage limit is too high. A 
number of commenters recommended an acreage limit of 1 acre. Other 
commenters proposed limits of \1/2\ acre and 2 acres. One commenter 
recommended acreage limits of 2 acres of isolated wetlands and \1/3\ 
acre of headwater wetlands. Numerous commenters said that the 3 acre 
limit is too low and that the acreage limit should be 5 acres. They 
believe that the NWPs should be more flexible and should authorize all 
activities that result in minimal adverse effects. They recommended 
that PCNs should be used to determine whether or not a particular 
project would result in more than minimal adverse effects. Two 
commenters recommended a 10-acre limit and another commenter suggested 
a 25-acre limit for this NWP. Some commenters remarked that the acreage 
limit should be higher because the Corps has not demonstrated that 
higher acreage limits will result in significant direct or cumulative 
adverse effects.
    Many of the commenters who stated that the 3 acre limit is too high 
referred to the recent United States District Court decision in the 
District of Alaska on NWP 29. They cited this court decision as 
evidence that the acreage limit for NWP 39 is too high because the 
Corps was enjoined from accepting NWP 29 preconstruction notifications 
after June 30, 1998. Two commenters stated that the acreage limits and 
PCN thresholds of this NWP and NWPs 29 and 40 should be similar.
    In its decision, the District Court did not rule that the acreage 
limit for NWP 29 (i.e., \1/2\ acre of non-tidal waters) was too high. 
The District Court merely required the Corps to consider lower acreage 
limits and the exclusion of high value waters in its environmental 
assessment.
    For activities in non-tidal wetlands, NWPs 39 and 40 have different 
acreage limits. NWP 39 utilizes an indexed acreage limit, as does NWP 
40 for discharges into playas, prairie potholes, and vernal pools. NWP 
40 utilizes a simple acreage limit of 2 acres for discharges into other 
types of non-tidal wetlands. We are not proposing an indexed acreage 
limit for discharges authorized by NWP 40 into non-tidal wetlands 
because the national average for farm tract size is approximately 275 
acres, which means that most agricultural producers would qualify for 
the maximum acreage limit of 2 acres. However, we are proposing to 
utilize an indexed acreage limit for discharges into playas, prairie 
potholes, and vernal pools. Most residential, commercial, and 
institutional developments, on the other hand, would be subject to the 
indexed acreage limit since most of these developments occur on 
relatively small parcels of land and the indexed acreage limit would 
encourage avoidance and minimization of impacts to waters of the United 
States. It would be impractical for this NWP to have the same acreage 
limit as NWP 29 because these NWPs fulfill different purposes. NWP 29 
applies solely to the construction of a single family residence whereas 
NWP 39 may be used to authorize the construction of a large residential 
subdivision, a commercial development, or an institutional development. 
The PCN requirements of NWPs 29 and 39 are different. NWP 29 requires 
notification for all activities authorized by that NWP. NWP 39 requires 
notification for activities resulting in the loss of greater than \1/4\ 
acre of non-tidal waters and any discharges resulting in the loss of 
open waters.
    Several commenters favored the use of a sliding scale or indexing 
to determine the acreage limit for this NWP. A few commenters noted 
that the sliding scale is too complex to implement. Some of the 
commenters endorsing the use of a sliding scale recommend basing the 
indexing on a percentage of the development size. One commenter 
suggested that the acreage limit should be based on 10% of the parcel 
size, another commenter suggested that the maximum acreage should be 5% 
of the parcel size, several commenters recommended an acreage limit 2% 
of the parcel size, and two commenters recommended using 1% of the 
parcel size as the acreage limit. Another commenter recommended a 
minimum acreage limit of \1/3\ acre plus 10% of the wetlands on the 
parcel for this NWP.
    One commenter stated that a percentage of parcel size should be 
used as the basis for the index because if the indexing scheme proposed 
in the July 1, 1998, Federal Register is used, a small increase in 
parcel size could allow a much larger loss of wetlands. For example, a 
parcel size of 14.4 acres would have an acreage limit of 1 acre whereas 
a 15.1 acre parcel would have an acreage limit of 2 acres. In contrast, 
an index based on the percentage of parcel size or project area would 
result in a small increase in the acreage limit with a small increase 
in parcel size or project area.
    Other commenters remarked that the indexing scheme proposed in the 
July 1, 1998, Federal Register notice has acreage limits so low for 
each size category that it is useless. If indexing is used to determine 
the acreage limit, these commenters requested that the Corps base the 
index on higher acreage limits. In contrast, some commenters stated 
that the indexing should be based on lower acreage limits. One 
commenter recommended an indexed acreage limit of \1/4\ acre for every 
5 acres of parcel size.
    In response to these comments, we have decided to utilize an 
indexed acreage limit for this NWP. The

[[Page 39306]]

proposed index begins with a base acreage limit of \1/4\ acre and 
increases as 2% of the project area, in acres. The maximum acreage 
limit for this NWP is 3 acres of non-tidal waters of the United States, 
excluding non-tidal wetlands adjacent to tidal waters. The acreage 
limit for this NWP is calculated as follows:
    Acreage limit = \1/4\ acre + 2% of the project area (in acres) For 
example if the project area is 5 acres, the acreage limit would be 0.35 
acres. If the project area is 80 acres, the acreage limit would be 1.85 
acres. With this indexed acreage limit, the maximum limit of 3 acres is 
reached at a project area of 137.5 acres. If the project area is 
greater than 137.5 acres, the acreage limit is 3 acres.
    Two commenters said that indexing should be based on the quality or 
values of the aquatic resource lost due to the authorized work. They 
stated that such a basis for indexing would ensure that only projects 
with minimal adverse effects are authorized.
    We believe that using functions and values of aquatic resources to 
determine the maximum acreage limit for an NWP is impractical because 
we do not currently have a standard method for measuring or assessing 
aquatic resource functions and values.
    One commenter stated that indexing duplicates requirements for 
avoidance and minimization, including the statement required in 
paragraph (f) of the proposed NWP A. Two commenters believe that 
indexing is counter to the requirements for avoidance and minimization 
and provides incentives for developers to build larger projects.
    We disagree with these comments, because the purpose of using an 
indexed acreage limit for this NWP is to have a proportionally smaller 
acreage limit for smaller projects, which reduces the potential for 
losses of waters of the United States. An indexed acreage limit 
encourages avoidance and minimization because it imposes smaller 
acreage limits on smaller projects rather than a single larger acreage 
limit. With an indexed acreage limit, NWP applicants are still required 
to avoid and minimize impacts to waters of the United States on-site to 
the maximum extent practicable (see General Condition 19).
    Another commenter asserted that project proponents will attempt to 
get around indexing requirements by artificially defining the parcel as 
larger than it really is to avoid going through the individual permit 
process. Two commenters remarked that developers may phase projects so 
that they can build projects with higher impact acreage limits using 
the indexing scheme proposed in the July 1, 1998, Federal Register 
notice. In this case, the Corps would have to determine if phasing 
meets the criteria for a single and complete project. They believe that 
the use of a sliding scale will encourage piecemealing of projects. One 
commenter recommended that the term ``parcel size'' used in the 
proposed indexing scheme should be replaced with the term ``single and 
complete project,'' as defined by subdivision criteria.
    We are proposing to base the indexed acreage limit on a percentage 
of project area, not parcel size, to ensure that the NWP authorizes 
only single and complete projects. Basing the indexed acreage limit on 
project area will result in an acreage limit that reflects the actual 
size of the proposed activity, which cannot be artificially inflated in 
an attempt to get a higher acreage limit. Using the project area to 
determine the acreage limit, a particular parcel could have separate 
projects built upon it, with acreage limits based on the size of each 
project, as long as each separate project has independent utility. If 
the separate projects do not have independent utility, then the acreage 
limit would be determined by the sum of the project areas for each 
dependent component of the entire single and complete project.
    Two commenters said that the proposed acreage limit will allow long 
segments of streams to be impacted. Some commenters recommended limits 
for the amount of linear feet of stream bed that may be filled or 
excavated under this NWP. Commenters recommended limits of 50, 100, or 
150 linear feet of stream bed.
    It should be noted that the proposed NWP has a PCN requirement for 
any loss of open waters, including streams. By reviewing the PCN, 
district engineers will be able to determine if the loss of stream bed 
will result in more than minimal adverse effects. If the stream bed 
impacts are more than minimal, discretionary authority will be 
exercised by the District Engineer, and the applicant will have to 
apply for authorization through another permit process or modify the 
project to comply with the NWP. Therefore, we do not believe that it is 
necessary to impose a limit on the quantity of stream bed that can be 
filled or excavated under this NWP.
    Preconstruction Notification: We received a variety of comments 
concerning the notification requirements for this NWP. A couple of 
commenters supported the proposed PCN threshold of \1/3\ acre. Several 
commenters stated that the PCN threshold should be \1/4\ acre. Two 
commenters recommended a \1/2\ acre PCN threshold. Two commenters 
believe that the PCN threshold should be 1 acre and a few commenters 
stated that a PCN should be required for all activities authorized by 
this NWP.
    We believe that the PCN threshold should be \1/4\ acre, to be 
consistent with the other new NWPs.
    For this NWP, we also proposed to require notification for all 
activities that involve filling or excavating open waters, such as 
perennial or intermittent streams and lakes. One commenter stated that 
this PCN requirement is excessive and would mean that a PCN will be 
required for virtually all projects. This commenter also stated that 
this PCN requirement implies that open waters are more important than 
special aquatic sites and is contrary to the Section 404(b)(1) 
guidelines. The commenter recommended that the Corps establish other 
PCN thresholds for open water impacts instead, such as a 500 linear 
foot PCN threshold for intermittent stream impacts, and require a PCN 
for all perennial stream impacts. Another commenter recommended using 
the size of the drainage area to determine when a PCN is required for 
open water impacts. This commenter recommended requiring a PCN when the 
drainage area is 1 square mile or greater. Another commenter believes 
that the PCN requirement for open waters demonstrates a lack of 
understanding that not all significant wetlands have open waters and 
that this PCN requirement redefines wetlands.
    We disagree with the assertion that this PCN requirement is 
excessive and would result in PCNs for nearly all projects authorized 
by this NWP. Many development projects authorized by this NWP would 
only impact wetlands and would require notification only for those 
activities that result in the loss of greater than \1/4\ acre of 
wetlands. In addition, most residential, commercial, or institutional 
development projects can be designed to avoid impacts to open waters. 
Road crossings of streams that are constructed with culverts would 
require submittal of a PCN. The purpose of this PCN requirement is to 
allow district engineers to review residential, commercial, and 
institutional development activities that result in a loss of open 
waters, such as streams, and ensure that activities in these waters 
will result only in minimal adverse effects on the aquatic environment. 
We are proposing to add Note 2 to the text of this NWP to help the 
regulated public identify those areas that require submission of a PCN 
for discharges into open waters.

[[Page 39307]]

    We are proposing to add the PCN requirement for discharges into 
open waters to provide district engineers with the opportunity to 
review activities in open waters and ensure that the authorized work 
results in minimal adverse effects on the aquatic environment. One 
intent of the proposed new and modified NWPs is to provide equal 
consideration for open and flowing waters and wetlands. The proposed 
NWPs focus on the aquatic environment as a whole, not just wetlands. 
Streams and other open waters are extremely important components of the 
overall aquatic environment. The proposed PCN requirement does not 
redefine wetlands; it merely places additional emphasis on other types 
of waters of the United States, such as lakes and streams. High value 
wetlands and other waters will receive additional protection through 
regional conditions and the use of discretionary authority where 
discharges into high value waters may result in more than minimal 
adverse effects on the aquatic environment.
    Several commenters stated that the PCN process for this NWP does 
not provide the Federal and State resource agencies the opportunity to 
comment on projects that adversely affect less than 1 acre of waters of 
the United States. These commenters believe that these agencies should 
be allowed the opportunity to comment on these projects. One commenter 
supported Corps-only review of projects that adversely affect between 
\1/3\ acre and 1 acre of waters of the United States. One commenter 
recommended agency coordination for activities resulting in the loss of 
greater than \1/2\ acre of waters of the United States.
    We are proposing to modify General Condition 13 to require agency 
coordination for NWP 39 activities that result in the loss of greater 
than 1 acre of waters of the United States. PCNs for activities that 
result in the loss of \1/4\ acre to 1 acre of waters of the United 
States will be reviewed solely by the Corps. Agency coordination for 
smaller projects is costly to the Corps and provides little value added 
in determining whether or not the work will result in minimal adverse 
effects on the aquatic environment. Corps district personnel are highly 
experienced in reviewing PCNs to assess the environmental effects of 
the proposed work and recommending special conditions or requiring 
compensatory mitigation to ensure that the adverse effects on the 
aquatic environment are minimal. If the District Engineer determines 
that the adverse effects are more than minimal, discretionary authority 
will be exercised and the applicant will be notified that another form 
of Corps authorization, such as an individual permit, is required for 
the proposed work.
    A few commenters stated that the PCN should include detailed plans 
and schedules for compensatory mitigation. Another commenter 
recommended that the PCN should include baseline data for stream flows 
and a detailed analysis of stormwater standards to ensure compliance 
with paragraph (g) (formerly paragraph (i) of NWP A) of the proposed 
NWP.
    We believe that it is unnecessary to require detailed plans and 
schedules for compensatory mitigation with the PCN to ensure that the 
adverse effects of the authorized work on the aquatic environment are 
minimal. Requiring the submission of detailed compensatory mitigation 
plans with the PCN will increase the amount of time required to review 
the PCN. For the PCN, the applicant need only provide a conceptual 
proposal for compensatory mitigation that will offset the loss of 
aquatic resource functions and values. However, a detailed mitigation 
plan may be submitted with the PCN if the applicant chooses to submit 
such a plan. The District Engineer will evaluate the compensatory 
mitigation proposal to determine if it is adequate to ensure that the 
adverse environmental effects of the proposed work are minimal. 
Detailed plans for project-specific compensatory mitigation projects 
are usually required as special conditions of the NWP authorization. If 
the proposed compensatory mitigation is provided through payment to an 
approved mitigation bank or in lieu fee program, detailed plans are not 
required because the Corps may have previously reviewed the plans for 
the mitigation bank or in lieu fee site. It should be noted that Corps 
must finish its review of the PCN within 45 days of receipt of a 
complete PCN; such a time limit makes it difficult to thoroughly review 
and approve detailed compensatory mitigation plans and schedules.
    District engineers will determine compliance with paragraph (g) of 
NWP 39 through qualitative methods or defer to State or local 
regulatory agencies, who may require quantitative analyses to ensure 
that the project does not result in more than minimal adverse effects 
to water quality or surface water flows.
    Statement of Avoidance: Paragraph (f) of the proposed NWP requires 
the applicant to submit a statement with the PCN which demonstrates 
that discharges into waters of the United States were avoided and 
minimized to the maximum extent practicable and that additional 
avoidance and minimization cannot be achieved. One commenter favored 
this requirement, but a few commenters remarked that the requirement is 
unnecessary and recommended that it be removed. One commenter stated 
that the NWP regulations already require on-site avoidance and 
minimization and that this requirement increases the burden on the 
landowner and provides no environmental benefit. This commenter went on 
to say that the Federal Register notice does not provide any guidance 
as to what information is necessary to fulfill this requirement. 
Another commenter stated that this requirement will be impossible to 
implement. Several commenters stated that this requirement is 
insufficient, and that projects should be subject to more comprehensive 
alternatives analysis.
    This requirement (now in paragraph (e) of NWP 39) is similar to the 
requirements of General Condition 19, Mitigation. It merely requires 
that the applicant provide a statement explaining how he or she is 
complying with this general condition. We disagree that it will create 
an additional burden on the project proponent because it will provide 
the Corps with the relevant avoidance and minimization details early in 
the PCN review process. In fact, submission of such a statement with 
the PCN is likely to benefit project proponents because the Corps 
personnel evaluating the PCN will not have to ask during the PCN review 
period if additional avoidance and minimization can be achieved. We 
believe that this requirement will save time and make the PCN process 
more effective. This requirement will also encourage project proponents 
to think more carefully about how to further avoid and minimize adverse 
effects to waters of the United States on the project site.
    To require a more comprehensive alternatives analysis is contrary 
to the NWPs. NWPs authorize activities with minimal adverse effects on 
the aquatic environment, and if the proposed work meets the terms and 
limits of the NWP, the applicant cannot be required to consider off-
site alternatives. If the adverse effects of a particular project are 
more than minimal the District Engineer will exercise discretionary 
authority and require an individual permit for the proposed work. The 
individual permit process requires a full alternatives analysis, 
including the consideration of off-site alternatives.
    Since the avoidance and minimization requirement and the 
compensatory mitigation requirement of the NWP are related, we have 
combined paragraphs (f) and (g) of proposed NWP

[[Page 39308]]

A into paragraph (e) of NWP 39. Compensatory mitigation requirements 
for this NWP are discussed below.
    Compensatory Mitigation: Paragraph (g) of the proposed NWP A stated 
that the permittee must submit a mitigation proposal to offset the loss 
of waters of the United States for activities that require 
notification. One commenter recommended changing this requirement to 
specify that the losses of wetland functions and values should be 
offset, not just the acreage loss. This commenter stated that the 
proposed wording is unclear and subject to various interpretations and 
should be consistent with the mitigation memorandum of agreement (MOA) 
signed in 1990.
    This requirement has been incorporated into paragraph (e) of NWP 
39. The purpose of compensatory mitigation is to offset losses of 
functions and values of waters of the United States and ensure that the 
net adverse effects on the aquatic environment are minimal. However, it 
is important to allow district engineers the flexibility to require 
compensatory mitigation that provides more benefits to the aquatic 
environment. Out-of-kind compensatory mitigation, such as the 
establishment and maintenance of vegetated buffers adjacent to streams, 
may provide more benefits to the local aquatic environment than 
replacing the wetland filled by the authorized work. It is also 
important to note that compensatory mitigation may be required for 
losses of other types of waters of the United States, not only 
wetlands. District engineers can require a greater acreage of 
compensatory mitigation to replace the aquatic resource functions and 
values lost due the authorized work if the compensatory mitigation 
cannot readily replace the lost functions and values. On the other 
hand, if the waters of the United States lost as a result of the 
authorized work are low value, providing few functions and values, a 
smaller acreage of compensatory mitigation may be appropriate to offset 
the lost functions and values of that area.
    The mitigation process, as defined in the Council on Environmental 
Quality's regulations at 40 CFR Part 1508.20, includes avoidance, 
minimization, and compensation. Therefore, we are providing further 
clarification for this requirement by inserting the word 
``compensatory'' in front of the word ``mitigation'' to state that the 
type of mitigation required by the District Engineer is compensation to 
replace losses of functions and values of waters of the United States.
    Two commenters support the requirement for compensatory mitigation 
for losses that require a PCN. Several commenters objected to this NWP 
because this condition does not specifically require compensatory 
mitigation for losses of less than \1/3\ acre, which they believe will 
result in substantial cumulative adverse effects on the aquatic 
environment. Another commenter suggested that compensatory mitigation 
should be required for impacts to perennial streams. One commenter 
stated that mitigation proposals should be subject to agency review. A 
commenter recommended modifying this paragraph to allow the permittee 
the opportunity to justify why compensatory mitigation should not be 
required for a particular project.
    It should be noted that paragraph (e) only requires the submission 
of a compensatory mitigation proposal to the District Engineer with the 
notification, and is not a requirement for compensatory mitigation. The 
prospective permittee may submit either a conceptual or detailed 
compensatory mitigation proposal. District engineers will determine on 
a case-by-case basis if compensatory mitigation is necessary to ensure 
that the proposed activity will result in minimal adverse effects on 
the aquatic environment, individually or cumulatively. However, in most 
cases, compensatory mitigation will be required for activities that 
require notification to ensure that those activities result only in 
minimal adverse effects on the aquatic environment. In paragraph (e), 
we have stated that compensatory mitigation will normally be required 
to offset losses of waters of the United States, but if the applicant 
believes that the adverse effects of the project on the aquatic 
environment are minimal without compensatory mitigation, then the 
applicant can provide justification with the PCN for the District 
Engineer's consideration.
    Compensatory mitigation is not required for activities that do not 
require preconstruction notification, because the adverse effects on 
the aquatic environment caused by those activities are minimal. In 
watersheds where small losses of waters of the United States have 
greater potential for more than minimal adverse effects, division 
engineers can regionally condition the NWP to lower the notification 
threshold, which will allow district engineers to require compensatory 
mitigation for losses of less than 1/4 acre of waters of the United 
States. For activities that require Corps-only review of the PCN, 
agency review is not required to review the compensatory mitigation 
proposal because the District Engineer will determine whether or not 
the proposed mitigation is appropriate. For PCNs subject to agency 
coordination, Federal and State resource agencies will have the 
opportunity to review the compensatory mitigation proposal submitted 
with the notification.
    One commenter stated that buffers adjacent to any waters of the 
United States, not just open water, should be part of any required 
compensatory mitigation.
    We concur with this comment and have stated elsewhere in this 
notice that district engineers can consider the establishment and 
maintenance of vegetated buffers adjacent to waters of the United 
States, including wetlands, as compensatory mitigation for losses of 
waters of the United States. Vegetated buffers adjacent to waters of 
the United States, including open waters and wetlands, can be 
considered as out-of-kind compensatory mitigation because vegetated 
buffers are important components of the aquatic environment due to the 
functions they provide, especially for maintaining water quality and 
habitat for aquatic organisms. Vegetated buffers reduce adverse effects 
to local water quality caused by adjacent land use. Forested riparian 
buffers provide shade to streams, supporting cool water fisheries. When 
determining the appropriate amount of compensatory mitigation required 
for particular projects, district engineers should reduce the amount of 
``replacement acreage'' required as compensatory mitigation by an 
amount that recognizes the value of the vegetated buffer to the aquatic 
environment.
    One commenter recommended that on-site mitigation should be 
considered before off-site mitigation and that off-site mitigation 
should be accepted only if on-site mitigation is not environmentally 
beneficial. Two commenters oppose the use of mitigation banks and in 
lieu fee programs to provide compensatory mitigation for activities 
authorized by this NWP. Another commenter recommended that where 
compensatory mitigation is required, it should be done in a State-
sponsored mitigation bank within the same drainage basin.
    The sequencing requirements for compensatory mitigation recommended 
in the previous paragraph have limitations. Compensatory mitigation 
projects, whether they are individual projects that restore, enhance, 
or create aquatic areas or are payments to mitigation banks or in lieu 
fee programs, should be selected on the basis of their chance for 
success and their

[[Page 39309]]

effectiveness at offsetting authorized losses of waters of the United 
States. In-kind and on-site requirements for compensatory mitigation 
should be considered, but not to the exclusion of what is best for the 
aquatic environment. If off-site compensatory mitigation will provide 
more benefits to the local aquatic environment, then that form of 
compensatory mitigation should be selected. On-site wetland creation 
projects are often unsuccessful because of changes to local hydrology 
caused by the authorized activity, which may prevent the development of 
a functional replacement wetland. On-site restoration may have a better 
chance of success, but success may not be achieved because of changes 
in land use in the vicinity of the authorized work. It is often better 
to utilize off-site wetland creation, restoration, and enhancement 
projects, including mitigation banks and in lieu fee programs, if they 
are appropriate and available. The use of mitigation banks to provide 
compensatory mitigation for losses of waters of the United States 
authorized by NWPs should not be limited to State-sponsored mitigation 
banks. Permittees should be allowed to use any mitigation bank in the 
area that replaces functions and values of waters of the United States, 
including wetlands, lost due to the authorized work. When reviewing 
compensatory mitigation proposals, district engineers will consider 
what is best for the aquatic environment, including requiring vegetated 
buffers to open and flowing waters and wetlands.
    One commenter recommended that the NWP contain a provision 
requiring all remaining wetlands on the parcel to be protected by a 
conservation easement to prohibit any future development on the 
property.
    We disagree, because such a requirement can be considered a taking 
of private property, unless the applicant agrees to preserve the 
remaining wetlands on the property as compensatory mitigation for 
authorized losses of waters of the United States. If there are any 
streams or other open waters on the project site, the District Engineer 
can require the permittee to establish and maintain vegetated buffers 
adjacent to those waters as compensatory mitigation. The vegetated 
buffers should be protected by a conservation easement, deed 
restriction, or other legal means.
    Use of This NWP With Other NWPs: Paragraph (h) of the proposed NWP 
A addressed the use of this NWP with other NWPs. This paragraph has 
been changed to paragraph (f), and only addresses the PCN threshold 
when this NWP is used with other NWPs. The use of NWP 39 with other 
NWPs is addressed in the proposed modification of General Condition 15. 
Paragraph (f) has been modified to reflect the changes in the PCN 
threshold discussed above.
    One commenter supported this requirement of paragraph (h) of the 
proposed NWP A. Another commenter stated that this NWP should not be 
stacked with other NWPs because this NWP authorizes all activities 
associated with the single and complete project. One commenter said 
that this NWP should not be combined with other NWPs to authorize 
permanent, above-grade fills. One commenter stated that this NWP should 
not be combined with other NWPs.
    Although the proposed NWP 39 authorizes the construction of 
building pads, foundations, and attendant features for a single and 
complete residential, commercial, or institutional development, there 
may be circumstances where other NWPs are necessary to authorize 
discharges of dredged or fill material into waters of the United States 
for related activities that occur in types of waters not covered by 
this NWP. It is important to consider these additional activities as 
part of the single and complete project. For example, a community boat 
ramp that can be authorized by NWP 36 may be constructed in tidal 
waters for a new residential subdivision that is authorized by NWP 39. 
In this situation, when NWP 39 is combined with NWP 36, the total loss 
of waters of the United States cannot exceed the indexed acreage limit 
for NWP 39. The use of more than one NWP to authorize a single and 
complete project is addressed in the proposed modification of General 
Condition 15.
    One commenter stated that the stacking limitation assumes that 
projects with greater than 3 acres of impact to waters of the United 
States exceed the minimal adverse effects threshold and that it is 
illogical for the Corps to assume that each NWP, if used alone, will 
result in minimal impacts, but if used with other NWPs will result in 
more than minimal adverse effects. This commenter asserted that the 
Corps has no evidence to support its contention that NWP stacking in 
excess of 3 acres will result in more than minimal impacts and 
recommended that the Corps eliminate this condition of the NWP because 
the PCN requirement is sufficient to ensure that the NWP authorizes 
only those activities with minimal adverse effects. This commenter also 
stated that the stacking restriction is contrary to 33 CFR Part 
330.6(c).
    For the NWPs, we establish acreage limits that will ensure that the 
authorized activities will not result in more than minimal adverse 
effects on the aquatic environment, individually or cumulatively. There 
may be some circumstances (e.g., projects in low value waters of the 
United States) where larger impacts result in minimal adverse effects. 
If a particular district has a large number of these types of projects, 
then that district can develop a regional general permit to authorize 
those activities. When more than one NWP is used to authorize a single 
and complete project, the District Engineer must consider the additive 
adverse effects on the aquatic environment. Each NWP has an acreage 
limit based on a minimal adverse effects determination made only for 
that NWP. By combining NWPs, the sum of the acreage losses and the sum 
of the adverse effects of those losses on the aquatic environment 
increases the probability that the minimal adverse effects threshold 
will be exceeded. Since the NWPs can authorize only those activities 
that result in minimal adverse effects on the aquatic environment, 
individually or cumulatively, a prohibition against stacking NWPs to 
exceed a specified acreage limit is necessary. General Condition 15 is 
not contrary to 33 CFR Part 330.6(c) because this regulation does not 
eliminate the need to comply with Section 404(e) of the Clean Water Act 
and 33 CFR Part 323.2(h).
    Two commenters stated that any stacking that occurs with this NWP 
should have an acreage limit equal to the lower acreage limit for any 
of the NWPs involved. Another commenter suggested that any stacking 
that occurs with this NWP should have an acreage limit equal to the 
higher acreage limit for any of the NWPs involved. Two other commenters 
stated that paragraph (h) of the proposed NWP A should be revised to 
specify that total acreage cannot exceed 3 acres or the indexed acreage 
limit of the NWP, whichever is less. One commenter recommended that 
this NWP should not be stacked with NWP 29.
    We disagree with the first comment in the previous paragraph 
because it would render this NWP useless in most situations. For 
example, NWP 36 limits the construction of boat ramps to a maximum 
width of 20 feet and a maximum discharge of 50 cubic yards. By 
requiring a combination of this NWP and NWP 36 to be subject to the 
lesser acreage limit of NWP 36, NWP 39 would essentially authorize no 
residential, commercial, or institutional development activities when 
combined with NWP 36. We are proposing to

[[Page 39310]]

modify General Condition 15 to allow the use of more than one NWP to 
authorize a single and complete project, as long as the acreage loss 
does not exceed the highest specified acreage limit of the NWPs used to 
authorize that activity. The statement in paragraph (f) regarding the 
PCN threshold has been changed to include the PCN threshold of \1/4\ 
acre.
    We believe that prohibiting the use of NWP 29 with NWP 39 is 
unnecessary and have not added it to the NWP. NWPs 29 and 39 are used 
by different groups of landowners. NWP 29 can be used only by the 
present or future occupants of the single family residence. NWP 39, on 
the other hand, can be used by others, such as contract builders and 
developers, to construct single family residences. Paragraph (d) states 
that only single and complete projects can be authorized by NWP 39. If 
the District Engineer establishes an exemption to the subdivision 
provision of this NWP, NWP 29 may be used by an owner of a subdivided 
parcel to construct a single family residence. If the construction of 
another single family residence on the property has independent utility 
and is not part of the previously authorized single and complete 
project, then either NWP 29 or NWP 39 may be used to authorize that 
single family residence, provided the authorized work results in 
minimal adverse effects on the aquatic environment.
    Other comments: A few commenters recommended that the Corps add a 
definition of the term ``single and complete project'' to the NWP.
    The Corps has defined the term ``single and complete project'' in 
the regulations governing the NWP program (see 33 CFR 330.2(i)). This 
definition applies to all of the NWPs, including the new NWPs proposed 
today. This definition is repeated in the ``Definitions'' section of 
the NWPs. For NWP 39, the acreage limit is based on the size of the 
single and complete project (i.e., the footprint or areal extent of the 
project). For the purposes of this NWP, a definition of ``project 
area'' is included in the ``Definitions'' section. The concepts of 
``single and complete project'' and ``project area'' must also be 
considered in the context of the subdivision provision of this NWP. In 
the July 1, 1998, Federal Register notice, we proposed General 
Condition 16, entitled ``Subdivisions.'' The purpose of proposed 
General Condition 16 was to define, for proposed NWPs A and B, the 
single and complete project in terms of land parcels. Since proposed 
NWP B was withdrawn, we have determined that a separate general 
condition addressing subdivision of land is unnecessary since it would 
only apply to NWP 39. Therefore, we have incorporated the text of 
proposed General Condition 16 into the text of NWP 39, with some minor 
changes. The term ``parcel'' is used in the subdivision provision of 
NWP 39 to determine the aggregate total loss authorized by the NWP and 
the appropriate NWP acreage limit. The project area may be the same as 
the size of the parcel, but more than one single and complete project 
may be built on a single parcel.
    Multi-phase projects may be considered as separate single and 
complete projects depending on whether or not one phase has independent 
utility from another phase. If a phase of a multi-phase project has 
independent utility from the other phases, then that independent phase 
can be considered as a separate single and complete project and may be 
eligible for the maximum acreage limit as determined by the project 
area. Each phase of a project can be authorized with the maximum 
acreage, provided each phase has independent utility from the other 
phases and the work results only in minimal adverse effects on the 
aquatic environment. Multiple parcels can also be combined for a larger 
single project. The acreage limit for a combined larger project is 
based on the indexed acreage limit for the project area.
    Two commenters suggested that authorizing the expansion of projects 
with this NWP is contradictory since this NWP is applicable only for 
single and complete projects.
    We disagree, since a project proponent can expand an existing 
single and complete project provided the terms and limits of the NWP 
are not exceeded and the adverse effects on the aquatic environment are 
minimal. When evaluating such requests for NWP authorization, we add 
the previously authorized impacts to the proposed impacts to determine 
if the proposed expansion exceeds the acreage limit. If the PCN 
threshold is exceeded, the applicant is required to notify the District 
Engineer. The District Engineer reviews the PCN and determines if the 
proposed work is authorized by NWP.
    One commenter expressed concern that a subdivision developer could 
construct the project, sell the lots, and the new owners would be 
eligible for NWP authorization to do further work on their lots. 
Another commenter stated that after a project is authorized by this 
NWP, further development on the property should be prohibited.
    We are proposing to add a subdivision provision to this NWP to 
prevent piecemealing of projects that exceed the acreage limit. For 
real estate subdivisions created or subdivided after October 5, 1984, 
the aggregate loss of waters of the United States authorized by this 
NWP cannot exceed the acreage limit based on the index in paragraph 
(a). If the owners of the property want to do additional work that 
would exceed the indexed acreage limit under paragraph (a), then they 
must obtain another type of Corps permit, such as an individual permit 
or a regional general permit, unless the additional work has 
independent utility. We cannot prohibit additional activities on the 
project site unless it is in the public interest to do so.
    Three commenters believe that this NWP would authorize considerable 
impacts to floodplains and riparian zones and should not authorize 
activities in these areas, or should be limited to those activities 
with unavoidable impacts that provide essential public services. One 
commenter stated that a net gain in wetlands cannot be achieved if 
residential, commercial, and institutional development activities are 
authorized in wetlands.
    In the October 14, 1998, Federal Register notice we requested 
comments on limiting the use of the NWPs to authorize activities in the 
100-year floodplain as mapped by the Federal Emergency Management 
Agency (FEMA) on its Flood Insurance Rate Maps. In response to the 
October 14, 1998, Federal Register notice, proposed General Condition 
27 has been added to the NWPs. General Condition 27 prohibits the use 
of NWP 39 to authorize permanent, above-grade fills in waters of the 
United States within the 100-year floodplain.
    Property owners are entitled to reasonable use of their property, 
the Corps cannot prohibit all of these activities in wetlands. However, 
NWP applicants are required to avoid and minimize adverse effects to 
waters of the United States on-site to the maximum extent practicable 
(see General Condition 19). For those unavoidable impacts, we can 
require compensatory mitigation to ensure that the adverse effects on 
the aquatic environment are minimal. In the July 1, 1998, Federal 
Register notice, we cited data from the past use of NWP 26, which 
demonstrates that during the period of May 1, 1997, through December 
31, 1997, more than 3 acres of compensatory mitigation was required for 
every acre of wetland lost as a result of residential, commercial, and 
institutional development activities.

[[Page 39311]]

    One commenter stated that the term ``measurably degrade'' in 
paragraph (i) of the proposed NWP A needs to be defined. Another 
commenter said that this term is unnecessary because any measurable 
degradation of water quality would occur after the work is completed. 
This commenter went on to say that this condition implies that if the 
degradation is not measurable, then it is authorized by the NWP.
    We have rewritten this condition (now in paragraph (g)) to replace 
the term ``measurably degrade'' with language that is more consistent 
with General Condition 9. The intent of this condition is to ensure 
that the authorized work does not result in more than minimal 
degradation of local water quality. Vegetated buffers adjacent to open 
or flowing waters and wetlands and adequate stormwater management 
facilities can minimize the adverse effects of the development on local 
water quality.
    One commenter stated that the preamble for this NWP in the July 1, 
1998, Federal Register notice contains several conditions that are not 
included in the text of the NWP and that these conditions should be 
consistent with the final NWP.
    In the preamble discussion of the proposed NWP, we did not include 
conditions that were not incorporated into the text of the NWP itself. 
In the preamble for the NWP, we reiterated some of the terms and 
conditions of this NWP, with discussions of the intent and meaning of 
those conditions.
    A commenter stated that the eight months of data presented by the 
Corps in the July 1, 1998, Federal Register notice is inadequate to 
assess the adverse effects that may result from the use of this NWP. 
The commenter recommended that at least one and a half years of data 
should be used.
    We have collected additional data since the July 1, 1998, Federal 
Register notice for the use of NWP 26 for activities that could be 
authorized by this NWP. We have collected this data for over a year and 
will consider this data in our Environmental Assessment for NWP 39. 
This data will be used to estimate the potential losses of waters of 
the United States that will result from the use of this NWP. This data 
will include the losses of waters of the United States authorized by 
NWP 26, as well as the gains provided by compensatory mitigation.
    One commenter requested that this NWP require the establishment and 
maintenance of vegetated buffers adjacent to open waters and streams, 
and that these vegetated buffers should be protected by deed 
restrictions, conservation easements, or other legal means.
    We concur with this comment, and have added a new paragraph (i) to 
NWP 39 to require, to the maximum extent practicable, the establishment 
and maintenance of vegetated buffers adjacent to open waters and 
streams, if those types of waters of the United States are present on 
the project site. Paragraph (i) also requires the protection of these 
vegetated buffers by deed restrictions, conservation easements, or 
other legal methods. For activities requiring notification, the 
composition of the vegetated buffer, in terms of plant species, and the 
appropriate width of the vegetated buffer, are determined by the 
District Engineer. For activities authorized by this NWP that do not 
require notification, the permittee should establish and maintain 
vegetated buffers that are wide enough to protect water quality and are 
comprised of native plant species. Division engineers can also 
regionally condition this NWP to prescribe vegetated buffer 
requirements for activities that do not require notification.
    One commenter stated that this NWP would be overly burdensome to 
builders. Another commenter believes that authorizing residential, 
commercial, and institutional development activities in all non-tidal 
waters of the United States will result in too much workload for Corps 
districts.
    The purpose of the proposed NWP is to efficiently authorize 
residential, commercial, and institutional development activities that 
result in minimal adverse effects on the aquatic environment. NWP 26 
authorized many of these same activities in isolated waters and 
headwaters. The proposed NWP authorizes these activities in all non-
tidal waters of the United States, excluding non-tidal wetlands 
adjacent to tidal waters. Proposed General Condition 27 prohibits the 
use of NWP 39 to authorize permanent, above-grade fills in waters of 
the United States within the 100-year floodplain, which will further 
limit the use of NWP 39 in non-tidal waters. It is our experience that 
many builders design their projects to comply with the NWPs, rather 
than construct larger projects that require individual permits. 
Although the proposed NWP has additional conditions that were not 
previously included with NWP 26, these conditions are intended to 
reduce adverse effects on the aquatic environment. Developers should be 
able to design their projects to comply with these conditions and 
qualify for NWP authorization. Another important point to consider is 
that NWPs are optional permits. If the permittee does not want to 
comply with all of the terms and conditions of an NWP, then he or she 
may request authorization through the individual permit process or 
apply for authorization by a regional general permit, if such a general 
permit is available.
    This NWP is subject to proposed General Conditions 25, 26, and 27, 
which will substantially reduce its applicability. General Condition 25 
prohibits the use of this NWP to authorize discharges into designated 
critical resource waters and wetlands adjacent to those waters. General 
Condition 26 prohibits the use of this NWP to authorize discharges 
resulting in the loss of greater than 1 acre of impaired waters, 
including adjacent wetlands. NWP 39 activities resulting in the loss of 
1 acre or less of impaired waters, including adjacent wetlands, are 
prohibited unless prospective permittee demonstrates to the District 
Engineer that the activity will not result in further impairment of the 
waterbody. Notification to the District Engineer is required for all 
discharges into impaired waters and their adjacent wetlands. General 
Condition 27 prohibits the use of NWP 39 to authorize permanent, above-
grade fills in waters of the United States within the 100-year 
floodplain.
    We believe that the terms and conditions of the proposed new and 
modified NWPs, especially the requirements of the three new NWP general 
conditions, will result in a substantial increase in the number of 
individual permits processed by our district offices. Districts will 
use the proposed new and modified NWPs, with regional conditions, to 
prioritize their workload in non-tidal waters. In response to a PCN, 
district engineers can require special conditions on a case-by-case 
basis to ensure that the adverse effects on the aquatic environment are 
minimal or exercise discretionary authority to require an individual 
permit for the work. The issuance of this NWP, as with any NWP, 
provides for the use of discretionary authority when valuable or unique 
aquatic areas may be affected by these activities. Proposed NWP A is 
designated as NWP 39, with the modifications discussed above.
40. Agricultural Activities
    In the July 1, 1998, Federal Register notice, we proposed to modify 
this NWP, which originally authorized only the construction of 
foundations or building pads for farm buildings in farmed wetlands, to 
authorize discharges into non-tidal wetlands for the purposes of 
increasing agricultural

[[Page 39312]]

production. As a result of the comments we received concerning this 
NWP, we have substantially changed the proposed modification of NWP 40 
to authorize the following activities: (1) Discharges into non-tidal 
wetlands, excluding other waters of the United States (e.g., open or 
flowing waters) and non-tidal wetlands adjacent to tidal waters, 
conducted by participants in 
U.S. Department of Agriculture (USDA) programs to increase agricultural 
production, (2) discharges into non-tidal wetlands, excluding other 
waters of the United States (e.g., open or flowing waters) and non-
tidal wetlands adjacent to tidal waters, conducted by agricultural 
producers that are not participants in USDA programs to increase 
agricultural production; (3) discharges into farmed wetlands for the 
construction of building pads for farm buildings, and (4) the 
relocation of existing serviceable drainage ditches constructed in non-
tidal streams. For activities authorized by paragraph (a) of this NWP, 
the Natural Resources Conservation Service (NRCS) will determine if the 
proposed work meets the terms and conditions of NWP 40, unless the 
permittee also proposes to construct building pads for farm buildings 
or relocate greater than 500 linear feet of existing serviceable 
drainage ditches constructed in non-tidal streams. For discharges 
resulting in the loss of greater than \1/4\ acre of non-tidal wetlands 
by non-participants in USDA programs to increase agricultural 
production, the construction of building pads for farm buildings, and/
or the relocation of greater than 500 linear feet of existing 
serviceable drainage ditches constructed in non-tidal streams, the 
Corps will determine if the proposed work is authorized by NWP 40. 
Division engineers will not regionally condition paragraph (a) of this 
NWP, to ensure that this NWP is consistently applied by NRCS and 
agricultural producers across the country. These proposed changes are 
discussed in more detail below.
    General Comments: Many commenters objected to the proposed 
modification and only a few supported the proposed modification of NWP 
40. Of those who objected to the proposed modification, the reasons for 
their objections include: (1) The NWP would authorize substantial 
cumulative losses of wetlands, especially in the prairie pothole 
region; (2) the use of the NWP would result in substantial degradation 
of water quality; (3) the NWP does not comply with Section 404(e) of 
the Clean Water Act; (4) the NWP delegates some of the Corps 
responsibilities to NRCS, which lacks the resources to implement the 
statutory requirements of the Clean Water Act; (5) the NWP is contrary 
to Swampbuster; and (6) the proposed modification is contrary to the 
goals of programs that restore and enhance wetlands, such as the 
Conservation Reserve Program (CRP) and the Wetlands Reserve Program 
(WRP).
    This NWP complies with the requirements of Section 404(e) of the 
Clean Water Act because it authorizes activities that are similar in 
nature and will result in minimal adverse effects on the aquatic 
environment. As with all other NWPs, district engineers will monitor 
the use of NWP 40 on a watershed basis to determine if the use of NWP 
40 and other NWPs results in more than minimal cumulative adverse 
effects on the aquatic environment, including degradation of local 
water quality. States, Tribes, and EPA will also make local 
determinations for compliance with Section 401 of the Clean Water Act 
and determine if activities authorized by NWP 40 will violate local or 
State water quality standards. If the cumulative adverse effects within 
a particular watershed are more than minimal, then the District 
Engineer will suspend or revoke the use of the NWPs in accordance with 
33 CFR Part 330.5. For activities in non-tidal wetlands by USDA program 
participants to increase agricultural production, NRCS will review the 
proposed work and determine if it is authorized by NWP 40. In these 
cases, each landowner must submit a report to the District Engineer so 
that the use of NWP 40, the losses of waters of the United States, and 
compensatory mitigation can be monitored. For activities that require 
notification to the District Engineer (i.e., discharges resulting in 
the loss of greater than \1/4\ acre of non-tidal wetlands by non-
participants in USDA programs to increase agricultural production, 
discharges into farmed wetlands for the construction of pads for farm 
buildings, or the relocation of greater than 500 linear feet of 
drainage ditches constructed in non-tidal streams), the District 
Engineer will review the PCN and determine if the adverse effects on 
the aquatic environment resulting from the proposed work will be 
minimal. If the proposed work involves both activities in non-tidal 
wetlands to increase agricultural production and either the relocation 
of greater than 500 linear feet of drainage ditches constructed in non-
tidal streams or the construction of pads for farm buildings, the 
landowner must submit a PCN to the Corps, and the District Engineer 
will determine if the proposed work is authorized by NWP 40. For those 
activities that require notification, the District Engineer will 
determine if the proposed work will result in minimal adverse effects 
on the aquatic environment. If the proposed work will result in more 
than minimal adverse effects on the aquatic environment, discretionary 
authority will be exercised and an individual permit will be required.
    One of the goals of the proposed modification of this NWP is to 
reduce duplication between the Corps and NRCS, reduce confusion, and 
provide some regulatory relief to agricultural producers. This is one 
of the goals of the Administration's wetlands plan, which is to make 
the wetlands regulatory program fair, flexible, and effective. This NWP 
does not delegate the Corps responsibilities under Section 404 of the 
Clean Water Act to NRCS, but allows activities with minimal adverse 
effects on the aquatic environment to proceed without duplicate review 
by two Federal agencies. This NWP does not require NRCS to implement 
the Clean Water Act. It merely addresses certain situations where the 
Clean Water Act and Swampbuster have duplicate requirements. District 
engineers will monitor the use of NWP 40 to assess the cumulative 
adverse effects on the aquatic environment, through reports submitted 
by landowners and those activities reviewed by the Corps on a case-by-
case basis.
    This proposed modification of NWP 40 is not contrary to the CRP and 
the WRP, which are voluntary programs. Participation in these programs 
by agricultural producers is not mandatory. Although the CRP and WRP 
are important conservation programs, it is important to note that 
agricultural producers may need to alter their land to increase 
production and remain competitive with other agricultural producers. 
NWP 40 authorizes activities in non-tidal waters of the United States, 
excluding non-tidal wetlands adjacent to tidal waters, to allow 
agricultural producers to increase production, as long as those 
activities have minimal adverse effects on the aquatic environment, 
individually or cumulatively. Both the Corps and NRCS can require 
compensatory mitigation to offset losses of waters of the United States 
authorized by this NWP to ensure that the adverse effects on the 
aquatic environment are minimal. It is important to note that draining 
and filling wetlands to increase agricultural production is often 
reversible. Agricultural lands that were previously wetlands are often 
the easiest to restore because they require less effort and expense to 
restore than wetlands that

[[Page 39313]]

were filled to create residential subdivisions or commercial 
facilities. Although this NWP may be used to fill a particular area to 
increase agricultural production, that area may be restored at a later 
time.
    A commenter stated that the proposed modification is too 
restrictive and should be equitable with other NWPs, because 
agricultural activities and other more potentially destructive 
activities, such as the construction of residential, commercial, and 
institutional developments, should be held to the same standard. One 
commenter requested that the preamble to the NWP state that the use of 
the NWP will help achieve the goal of the Clean Water Action Plan of 
``no net loss'' and ensure consistency with the Federal Agriculture 
Improvement and Reform Act of 1996, which exempts wetland conversions 
from the Swampbuster provisions of the Food Security Act as long as 
wetland functions, values, and acreage are fully offset. One commenter 
recommended modifying the NWP to be consistent with the limits 
associated with the minimal effects criteria regionally established 
under the Farm Bill. A number of commenters believe that the proposed 
modification of NWP 40 is unnecessary because ongoing farm operations 
in farmed wetlands are exempt under Section 404(f) of the Clean Water 
Act.
    We agree that the modifications to NWP 40 proposed in the July 1, 
1998, Federal Register notice placed greater restrictions on 
agricultural producers than proposed NWP A (now designated as NWP 39) 
did on residential, commercial, and institutional developers. We have 
attempted to make NWPs 39 and 40 more equitable in terms of applicable 
waters and determining what constitutes a single and complete project 
for these NWPs. Both NWPs 39 and 40 authorize activities in non-tidal 
waters of the United States, excluding non-tidal wetlands adjacent to 
tidal waters. We have retained the separate provisions for playas, 
prairie potholes, and vernal pools from NWP 40, with an indexed acreage 
limit and a maximum limit of 1 acre, which is achieved for farm tracts 
90 acres or greater in size. For proposed NWP 39, the single and 
complete project will be based on project area. For the proposed 
modification of NWP 40, a single and complete project will be based on 
farm tract size. Farm tracts will be identified by the Farm Service 
Agency. The definition of the term ``farm'' based on reporting to the 
Internal Revenue Service has been removed. In the ``Definitions'' 
section of the NWPs, the term ``farm'' has been replaced with ``farm 
tract.'' The definition of the term ``farm tract'' has been taken from 
the Farm Service Agency regulations at 7 CFR Part 718.2.
    In accordance with the provisions of the Food Security Act, 
compensatory mitigation will be required for activities authorized by 
paragraph (a) of this NWP to fully offset losses of non-tidal wetlands. 
District engineers will determine on a case-by-case basis if 
compensatory mitigation is necessary to offset losses of waters of the 
United States resulting from activities authorized by paragraphs (b), 
(c), and (d) of this NWP to ensure that those activities result in 
minimal adverse effects on the aquatic environment. NRCS and the Corps, 
in cooperation with EPA, FWS, and NMFS, will develop joint compensatory 
mitigation guidance to provide consistency in compensatory mitigation 
requirements necessary for the implementation of NWP 40. Since the 
proposed modification of NWP 40 is intended to have national 
applicability, it is impractical to modify the NWP to be consistent 
with local minimal effects criteria established regionally under the 
Farm Bill. This NWP is applicable in all non-tidal wetlands, not just 
farmed wetlands. The conversion of waters of the United States to 
another use is not exempt under Section 404(f) of the Clean Water Act, 
which makes these modifications to NWP 40 necessary to satisfy the 
requirements of Section 404.
    Activities Authorized by NWP 40: One commenter supported the intent 
of the proposed modification, but stated that the additional activities 
should be authorized by another NWP, not by modifying the existing NWP 
40. Another commenter stated that a separate NWP should be issued to 
authorize the installation of drainage tiles and drainage ditches, and 
that the structure of this new NWP should be more like the proposed NWP 
for residential, commercial, and institutional activities. A commenter 
suggested that NWP 39 should be used instead of NWP 40 to authorize 
discharges in waters of the United States to increase agricultural 
production. One commenter recommended limiting the NWP to maintaining 
farm acreage, not expanding productive farm area. Two commenters 
requested the removal of mechanized landclearing from the list of 
activities authorized by the NWP, stating that only activities in 
cropland should be authorized by the NWP. Two commenters stated that 
mechanized landclearing should be considered exempt under Section 
404(f)(1) of the Clean Water Act and not included in the NWP. One 
commenter stated that the proposed modification to NWP 40 illegally 
brings two Farm Bill exemptions into the Federal wetlands program, 
namely ``categorical minimal effects'' and ``minimal effects 
mitigation.''
    We disagree that there should be a separate NWP for activities that 
increase agricultural production. We believe that it is more 
appropriate to modify NWP 40, which previously authorized only the 
construction of building pads and foundations for farm buildings in 
farmed wetlands. The purpose of the proposed modification of NWP 40 is 
to authorize all activities for increasing agricultural production and 
constructing farm buildings. By including all of these activities in a 
single NWP, there will be less confusion for the regulated public and 
district engineers will be better able to assess the adverse effects on 
the aquatic environment for single and complete projects. We are 
proposing to make the modifications to NWP 40 similar to the proposed 
NWP 39 by utilizing indexed acreage limits and by making both NWPs 
applicable to non-tidal wetlands, excluding non-tidal wetlands adjacent 
to tidal waters. The indexed acreage limit for NWP is applicable only 
for discharges resulting in the loss of playas, prairie potholes, and 
vernal pools, with a maximum acreage limit of 1 acre. We are proposing 
to utilize a simple 2 acre limit for discharges into other types of 
non-tidal wetlands to increase agricultural production. The proposed 
modification of NWP 40 has a smaller maximum acreage limit (i.e., 2 
acres) than NWP 39 (i.e., 3 acres). The lower maximum acreage limit for 
NWP 40 is necessary to ensure that the NWP authorizes only activities 
with minimal adverse effects on the aquatic environment, because 
district engineers will not receive notifications for many activities 
authorized by this NWP. Division and district engineers cannot impose 
regional or case-specific conditions on paragraph (a) of this NWP, so 
that NRCS can implement this part of NWP 40 consistently throughout the 
country. In addition, district engineers cannot revoke authorizations 
for activities authorized by paragraph (a) of NWP 40 on a case-by-case 
basis, but division engineers can revoke the provisions of paragraph 
(a) of NWP 40 within a state, geographic region, or a particular 
waterbody. However, regional conditions can be added to paragraphs (b), 
(c), and (d) of NWP 40, since the Corps is responsible for reviewing 
these activities. We have changed the applicable waters for the 
proposed modification of NWP 40 to be consistent

[[Page 39314]]

with most of the new NWPs. Proposed NWP 39 cannot be used to increase 
agricultural production instead of NWP 40, because NWP 39 specifically 
authorizes only building pads and attendant features for residential, 
commercial, and institutional developments. Activities that increase 
agricultural production are not included in NWP 39, although the 
construction of a farm house used as a residence on a farm may be 
authorized by NWP 39.
    Mechanized landclearing may result in a discharge of dredged or 
fill material into waters of the United States and require a Section 
404 permit. We disagree that the NWP should be limited to areas 
currently used as cropland. It would be inequitable to agricultural 
producers to limit use of the NWP only to those areas currently used 
for agricultural production. Mechanized landclearing is not exempt 
under Section 404(f)(1) if it converts a water of the United States 
into a use to which it was not previously subject, such as the 
mechanized landclearing of a forested wetland to convert it into 
cropland (see Section 404(f)(2) of the Clean Water Act).
    Categorical minimal effect determinations and minimal effects 
mitigation are provisions of the 1996 Farm Bill and 1985 Food Security 
Act. The categorical minimal effects determination is not an exemption 
from the permit requirements of Section 404 of the Clean Water Act. It 
merely allows the landowner to maintain USDA farm program eligibility 
for activities that convert a wetland to increase agricultural 
production, provided the activity has minimal effects on the 
hydrological and biological functions of the wetlands in the vicinity.
    One commenter requested clarification of the NWP to state that it 
authorizes activities for the purposes of improving production on 
existing agricultural land, because the commenter believes that the 
proposed wording of the NWP allows conversion of land not previously 
used for agricultural purposes. Another commenter recommended that, in 
addition to activities regulated under the National Food Security Act 
Manual (NFSAM), those activities considered exempt under NFSAM (i.e., 
where the land is not currently in agricultural production) such as the 
construction of grassed waterways, storage facilities, and impoundments 
should be authorized by the NWP. One commenter recommended that the NWP 
authorize the construction of farm ponds, when they are subject to the 
recapture provision of Section 404(f)(2) and are not exempt from the 
Clean Water Act.
    The proposed modification of NWP 40 authorizes discharges of 
dredged or fill material into non-tidal waters of the United States, 
excluding non-tidal wetlands adjacent to tidal waters, for the purpose 
of increasing agricultural production, including areas not currently 
used for agricultural production. This NWP authorizes the construction 
of grassed waterways, storage facilities, and impoundments in non-tidal 
wetlands, provided their purpose is to increase agricultural 
production. In certain circumstances, the construction of farm ponds is 
exempt from Section 404 permit requirements. The proposed modification 
of this NWP authorizes the construction or expansion of farm ponds used 
for agricultural purposes (e.g., irrigation ponds) that are not 
eligible for the Section 404(f) exemption, if the farm ponds are 
constructed in non-tidal wetlands, excluding non-tidal wetlands 
adjacent to tidal waters, and do not involve discharges of dredged or 
fill material into stream beds or other open waters. The only activity 
authorized by this NWP in open waters is the relocation of non-tidal 
streams that have been channelized as drainage ditches. The 
construction of farm ponds in stream beds or the construction of ponds 
for purposes other than increasing agricultural production may be 
authorized by other NWPs, a regional general permit, or an individual 
permit.
    Scope of the NWP: A number of commenters recommended limiting the 
NWP only to wetlands that are currently frequently cropped. Two 
commenters suggested that the NWP should authorize discharges only in 
isolated wetlands and should not authorize draining of wetlands. 
Several commenters stated that agricultural activities in naturally 
vegetated playas, prairie potholes, and vernal pools should not be 
included in the NWP.
    Limiting the scope of applicable waters of the proposed 
modification of this NWP only to frequently cropped or farmed wetlands 
would be inequitable to farmers, when compared to the applicable waters 
for NWP 39. District engineers will monitor the use of this NWP to 
ensure that it authorizes only those agricultural activities in non-
tidal waters of the United States, excluding non-tidal wetlands 
adjacent to tidal waters, that result in minimal cumulative adverse 
effects on the aquatic environment. District engineers will receive 
notification for discharges into non-tidal wetlands by non-participants 
in USDA programs if the discharge results in the loss of greater than 
1/4 acre of non-tidal wetlands, the construction of building pads for 
farm buildings, and/or the relocation of greater than 500 linear feet 
of existing serviceable drainage ditches constructed in non-tidal 
streams. These notifications will be reviewed by District Engineers to 
ensure that the proposed work will result in minimal adverse effects on 
the aquatic environment. We have not removed the specific provisions 
relating to playas, prairie potholes, and vernal pools to ensure that 
discharges into those types of non-tidal wetlands do not result in more 
than minimal adverse effects on the aquatic environment. To ensure that 
the provisions for playas, prairie potholes, and vernal pools are 
implemented accurately for those wetland types, we are proposing 
definitions for these terms in the ``Definitions'' section of the NWPs. 
The proposed definitions are based on geographic, hydrological, and 
vegetation characteristics. The proposed definitions were derived from 
information from technical sources on identifying and delineating 
wetlands. We are proposing to modify the applicable scope of waters for 
NWP 40 from all non-tidal waters of the United States, as proposed in 
the July 1, 1998, Federal Register notice, to non-tidal waters, 
excluding non-tidal wetlands adjacent to tidal waters, to make it 
consistent with most of the new NWPs.
    Acreage limits: Comments on acreage limits for the proposed 
modification of this NWP are divided into two categories. One category 
addresses the basis for determining acreage limits for a single and 
complete project (i.e., whether NWP 40 should apply to one entire farm 
or to a single farm tract). The other category of comments addresses 
the maximum acreage loss authorized by this NWP.
    Two commenters favored the use of the term ``farm'' to define the 
single and complete project for the NWP. One commenter objected to the 
use of ``farm'' in the NWP, stating that a person who owns more than 
one farm could use the NWP at each farm for the maximum acreage limit. 
One commenter stated that the proposed definition of ``farm'' is 
confusing and would unfairly restrict the use of NWP 40. A few 
commenters stated that acreage limits should not be linked to farm 
size. One of these commenters objected to basing the acreage limit on 
the Internal Revenue Service's definition of a ``farm'' because NRCS 
personnel would have to review copies of the landowner's tax returns to 
verify the number of tracts with the farm. This commenter recommended 
that the Corps determine single and complete projects for NWP 40 based 
on ``farm tracts'' as identified by the Farm Service Agency. Other 
commenters

[[Page 39315]]

suggested applying the acreage limit to the individual USDA field 
number or the individual parcel. One commenter requested that the 
aggregate acreage limit apply only to the property, not the farmer. One 
commenter advocated the use of ``farm tracts'' for this NWP because the 
farm tract, not the farm, is the basic unit of land ownership. This 
commenter stated that many farms consist of different tracts 
geographically separated from each other. Farm tracts remain constant 
in size and configuration, but may be sold, leased, or traded between 
farms. A couple of commenters opposed the use of ``farm tracts'' to 
determine the acreage limit of NWP 40. One of these commenters reasoned 
that the use of farm tracts would result in substantial losses of 
wetlands because of multiple use of the NWP by a large farm operation 
that owns many farm tracts. One commenter stated that impacts to waters 
of the United States are not dependent on farm size.
    One of the objectives of the Administration is to make the Federal 
wetlands programs fair, flexible, and effective. Basing the single and 
complete project on Internal Revenue Service reporting of farms for the 
proposed modification of NWP 40 results in unfair restrictions on 
agricultural producers compared to residential, commercial, and 
institutional developers. Developers often own more than one parcel of 
land and may have several development projects occurring at the same 
time. The Corps considers each development a single and complete 
project, as long as each development has independent utility. Each 
development can qualify for separate NWP authorization even though the 
land may be owned by the same developer, if the proposed work meets the 
terms and conditions of the NWP and if the individual or cumulative 
adverse effects on the aquatic environment are minimal. We are 
proposing to base the single and complete project and indexed acreage 
limit of NWP 40 on farm tract size, instead of farms. The use of farm 
tracts for NWP 40 provides equitable treatment to agricultural 
producers, and each farm tract would be considered a single and 
complete project for the purposes of the NWPs.
    Several commenters stated that the proposed acreage limits are too 
high. Suggested acreage limits were 1, \1/3\, \1/4\, and \1/10\ acre. A 
few commenters suggested higher acreage limits. Several commenters 
stated that the proposed 3 acre limit is adequate. In the July 1, 1998, 
Federal Register notice, we requested comments on the use of a simple 
acreage limit versus a sliding scale for this NWP. Most commenters 
opposed the use of a sliding scale or indexing to determine the acreage 
limit for this NWP. One of these commenters stated that the indexing 
scheme proposed in the July 1, 1998, Federal Register notice is too 
burdensome, confusing, and without ecological justification. Two 
commenters favored the use of a sliding scale, but recommended basing 
the sliding scale on a percentage, either as 5% of the wetlands on a 
farm regardless of farm size or 2% of the project size, if the project 
is greater than 5 acres in size.
    A number of commenters stated that the acreage limit for NWP 40 
should be the same as for the NWP for residential, commercial, and 
institutional development activities (i.e., NWP 39). One of these 
commenters stated that the acreage limits proposed in the July 1, 1998, 
Federal Register notice are inequitable compared to the acreage limits 
developers are subject to in NWP 39, particularly to farmers who own 
smaller farms. This commenter also said that using acreage limits and 
farm size as a substitute to determine minimal adverse effects has not 
been applied in a consistent manner between similar activities, such as 
development or agricultural projects.
    Based on our review of comments received in response to the July 1, 
1998, Federal Register notice, and to provide agricultural producers 
and residential, commercial, and institutional developers with 
equitable NWPs, we are proposing to utilize a simple 2-acre limit for 
discharges into non-tidal wetlands and an indexed acreage limit for 
discharges into playas, prairie potholes, and vernal pools that are 
authorized by paragraphs (a) (for USDA program participants) or (b) 
(for non-participants in USDA programs) of NWP 40. The indexed acreage 
limit for playas, prairie potholes, and vernal pools has a maximum 
limit of 1 acre per farm tract. A lower maximum acreage limit (i.e., 2 
acres per farm tract) was selected to ensure that the NWP authorizes 
activities only with minimal adverse effects on the aquatic environment 
because preconstruction notification to the District Engineer is not 
required for activities authorized by paragraph (a) of this NWP (unless 
the project proponent is also requesting authorization for the 
construction of foundations for farm buildings or the relocation of 
greater than 500 linear feet of drainage ditches constructed in non-
tidal streams). We are proposing a 2-acre limit for discharges into 
non-tidal wetlands (except for playas, prairie potholes, and vernal 
pools) to increase production. For the proposed modification of NWP 40, 
the indexed acreage limit for discharges into playas, prairie potholes, 
and vernal pools is based upon 1% percent of the farm tract size, with 
a base limit of \1/10\ acre. The maximum acreage limit of 1 acre is 
achieved for farm tracts 90 acres or greater in size. We believe that 
the formula for the indexed acreage limit will be easy to use. An 
indexed acreage limit helps encourage avoidance and minimization of 
losses of waters of the United States.
    One commenter opposed the use of an aggregate acreage limit for NWP 
40, stating that the requirement for mitigation replaces the need for 
an acreage limit for activities authorized by the NWP. A couple of 
commenters said that the Corps cannot enforce the acreage limits of 
this NWP because land is reapportioned among farm tracts on an annual 
basis and the Corps does not have access to the farm tract history 
necessary to ensure compliance with the acreage limits.
    The acreage limit for NWP 40, as for all other NWPs, is based on a 
national determination that the NWP will authorize most activities that 
have minimal adverse effects on the aquatic environment, individually 
or cumulatively. For certain activities, preconstruction notification 
is required to allow district engineers to review these activities on a 
case-by-case basis and determine if they will result in minimal adverse 
effects on the aquatic environment, individually or cumulatively. 
Compensatory mitigation cannot be used to increase the acreage limit 
for an NWP, but discharges of dredged or fill material into waters of 
the United States to construct compensatory mitigation are not included 
in the calculation of acreage loss of waters of the United States to 
determine if the single and complete project exceeds the acreage limit 
of NWP 40. It is our understanding that farm tract designations change 
only when the land is subject to a real estate transaction, such as 
when a farmer subdivides a farm tract to sell a part of that farm tract 
to another person.
    Paragraph (a) of the proposed NWP 40 modification published in the 
July 1, 1998, Federal Register notice authorized activities that 
qualify for a minimal effects exemption under the Food Security Act and 
National Food Security Act Manual, provided the discharge does not 
cause the loss of greater than 1 acre of non-tidal wetlands or greater 
than \1/3\ acre of playas, prairie potholes, and vernal pools. One 
commenter supported the inclusion of minimal effects determinations in 
NWP 40. Two commenters opposed this

[[Page 39316]]

provision of the NWP. One commenter stated that the farm owner should 
not have to obtain an authorization from both the Corps and NRCS for 
work in wetlands. This commenter believes that the Corps should make 
the minimal effects determination and that USDA program participants 
should get an NWP authorization before they can get a minimal effects 
determination. Another commenter requested that the minimal effects 
determination should include non-participants in USDA programs. One 
commenter stated that it is inappropriate for the Corps to apply 
acreage limits under this part of the NWP to activities that receive 
minimal effects determinations. Another commenter recommended that this 
portion of the NWP should be removed and replaced with regional 
conditions. One commenter believes that NRCS does not currently monitor 
the indirect or cumulative adverse effects of projects that are 
eligible for minimal effects determinations, and that this is contrary 
to the Clean Water Act's general permit criteria. This commenter stated 
that the minimal effects determination does not assess the value for a 
watershed. Three commenters recommended that NRCS should receive 
concurrence from the FWS and/or NMFS prior to issuing a minimal effects 
determination.
    We are proposing to modify this NWP to authorize discharges in non-
tidal wetlands, excluding non-tidal wetlands adjacent to tidal waters, 
by USDA program participants and non-participants in USDA programs to 
increase agricultural production on a farm tract. For USDA program 
participants, the permittee must obtain an exemption or minimal effects 
with mitigation determination from NRCS and implement an NRCS-approved 
compensatory mitigation plan that fully offsets wetland losses. For 
non-participants in USDA programs, notification to the District 
Engineer is required for discharges resulting in the loss of greater 
than \1/4\ acre of non-tidal wetlands to increase agricultural 
production. The District Engineer will determine on a case-by-case 
basis if the activities authorized by paragraph (b) will result in 
minimal adverse effects on the aquatic environment. Compensatory 
mitigation will normally be required for activities that require 
notification to ensure that they result in minimal adverse effects on 
the aquatic environment. The 2 acre limit for discharges into non-tidal 
wetlands and the indexed acreage limit for discharges into playas, 
prairie potholes, and vernal pools will ensure that the NWP authorizes 
only activities with minimal adverse effects on the aquatic 
environment. District engineers will monitor the use of this NWP 
through postconstruction reports and preconstruction notifications 
submitted to the District Engineer. If the activities authorized by NWP 
40 result in more than minimal cumulative adverse effects on the 
aquatic environment, division engineers can suspend the use of this NWP 
in the watershed or Corps district.
    Paragraph (b) of the proposed modification of NWP 40 published in 
the July 1, 1998, Federal Register authorized activities in non-tidal 
wetlands, except for naturally vegetated playas, prairie potholes, and 
vernal pools for the purposes of increasing agricultural production. 
Two commenters recommended using a simple acreage limit, but two other 
commenters favored using a sliding scale. Two commenters opposed the 
proposed 3 acre limit, because they believe it is too high. One 
commenter stated that the proposed indexed acreage limit was too low, 
especially if mitigation is required. One commenter recommended a 1 
acre limit and another commenter recommended a \1/3\ acre limit. One 
commenter recommended basing the acreage limit on a sliding scale of 2% 
of the entire property, with a maximum of 3 acres. One commenter stated 
that this part of the NWP should apply to all non-tidal wetlands, with 
no exclusions for playas, prairie potholes, and vernal pools.
    We are proposing to modify NWP 40 to authorize agricultural 
activities in all non-tidal wetlands, excluding non-tidal wetlands 
adjacent to tidal waters. For discharges into non-tidal wetlands to 
increase production, we are proposing a simple acreage limit of 2 acres 
and an indexed acreage limit for discharges into playas, prairie 
potholes, and vernal pools. The indexed acreage limit for discharges 
into playas, prairie potholes, and vernal pools will have a maximum 
acreage limit of 1 acre. The acreage limit for the proposed 
modification of this NWP will be based on farm tracts.
    Paragraph (c) of the proposed modification of NWP 40 published in 
the July 1, 1998, Federal Register authorized activities in naturally 
vegetated playas, prairie potholes, and vernal pools for the purposes 
of increasing agricultural production. Two commenters concurred with 
the proposed acreage limit of 1 acre. One commenter objected to the 
lower acreage limit for activities in playas, prairie potholes, and 
vernal pools. One commenter stated that this portion of the NWP should 
apply only to frequently cropped playas, prairie potholes, and vernal 
pools and that naturally-vegetated wetlands should not be included in 
the NWP. Another commenter recommended including pocosins in this 
paragraph of the NWP. A commenter stated that the proposed 1 acre limit 
is too high. One commenter believes that a higher acreage limit should 
be used because the permittee is required to provide mitigation. Two 
commenters recommended using a simple acreage limit instead of a 
sliding scale acreage limit.
    As previously discussed, we are proposing to modify NWP 40 to 
include playas, prairie potholes, and vernal pools with an indexed 
acreage limit.
    Construction of Farm Buildings: Paragraph (d) of the proposed 
modification of NWP 40 contained the original provisions of NWP 40 and 
authorized discharges into wetlands, excluding playas, prairie 
potholes, and vernal pools, that were in agricultural production prior 
to December 23, 1985, for the construction of building pads for farm 
buildings, with an acreage limit of 1 acre.
    One commenter recommended increasing the acreage limit to 2 acres. 
Another commenter recommended an acreage limit of 1/4 acre, to be 
consistent with the acreage limit proposed for NWP 29 in the July 1, 
1998, Federal Register notice. One commenter stated that non-
agricultural buildings such as houses should not be authorized by this 
NWP. Three commenters stated that the December 23, 1985, date should be 
removed from this part of the NWP, based on the rationale that any area 
under agricultural production prior to that date should not be 
considered a jurisdictional wetland and subject to the limitations of 
the NWP.
    We are proposing to remove the exclusion for playas, prairie 
potholes, and vernal pools from this part of NWP 40. This provision is 
now in paragraph (c) of the proposed modification of this NWP, with a 
requirement that the permittee notify the District Engineer in 
accordance with General Condition 13. We are proposing to maintain the 
1 acre limit for this activity. One acre is adequate for the 
construction of most farm buildings. This acreage limit need not be 
consistent with the acreage limit of NWP 29, since farm buildings are 
constructed for the operation of the farm, not for residences. Farm 
buildings, such as barns, usually must be larger than houses to fulfill 
their purposes. In addition, this paragraph of NWP 40 encompasses a 
much smaller geographic scope than the other provisions of NWP 40, 
since it is limited to farmed wetlands. Paragraph (c) of NWP 40 
authorizes discharges only in farmed

[[Page 39317]]

wetlands for the construction of building pads for farm buildings, 
whereas NWP 29 authorizes discharges of dredged or fill material into 
all non-tidal wetlands. This NWP does not authorize the construction of 
non-agricultural buildings, such as residences. We do not agree that 
the December 23, 1985, date should be removed from the NWP because 
there are jurisdictional wetlands that have been used for agricultural 
production since that date. Although they are considered farmed 
wetlands, they are still waters of the United States and subject to 
Clean Water Act Section 404 permit requirements.
    Drainage Ditch Relocations: Paragraph (e) of the proposed NWP 40 
modification published in the July 1, 1998, Federal Register notice 
authorized the relocation of existing serviceable drainage ditches and 
previously substantially manipulated intermittent and small perennial 
streams. Two commenters supported the proposed provision of the NWP. 
Several commenters opposed this provision. Two commenters stated that 
the relocation of streams or drainage ditches may result in substantial 
adverse effects on the aquatic environment. One commenter recommended 
modification of this provision to limit the work only to the relocation 
of currently serviceable drainage ditches or manipulated streams that 
are not so degraded as to require reconstruction. Another commenter 
stated that it is unclear which other waters of the United States are 
included in this paragraph of the NWP. Two commenters suggested that 
this condition should not apply to perennial streams. Two commenters 
requested that the Corps define the term ``substantially manipulated 
stream.''
    The purpose of this provision of the proposed modification of NWP 
40 is to authorize relocation of drainage ditches constructed in waters 
of the United States to increase agricultural production. Based on 
comments received in response to our proposed definition of the term 
``drainage ditch,'' and in an effort to clarify this provision of NWP 
40, we are changing the language of this paragraph and designating it 
paragraph (d). Paragraph (d) of the proposed modification of NWP 40 
authorizes discharges of dredged or fill material to relocate existing 
serviceable drainage ditches constructed in non-tidal streams. The 
relocation of existing serviceable drainage ditches constructed in non-
tidal wetlands can be authorized by paragraphs (a) or (b) of this NWP. 
Notification to the District Engineer is required for the relocation of 
greater than 500 linear feet of drainage ditches constructed in non-
tidal streams. Since drainage ditches can be constructed in wetlands or 
by channelizing perennial, intermittent, or ephemeral stream beds to 
improve drainage, we have removed the phrase ``* * * and previously 
substantially manipulated intermittent and perennial streams'' and 
replaced it with ``* * * constructed in non-tidal streams'' to reflect 
the fact that drainage ditches may have been constructed in streams. As 
a result of this change, it is unnecessary to provide a definition for 
the term ``substantially manipulated stream.'' Relocation of drainage 
ditches constructed in uplands does not require a Section 404 permit 
because these ditches are not waters of the United States, except in 
certain circumstances.
    We do not believe that the relocation of existing serviceable 
drainage ditches constructed in waters of the United States will result 
in more than minimal adverse effects on the aquatic environment. The 
term ``existing serviceable drainage ditches'' adequately describes the 
limitation of paragraph (d) to only those drainage ditches that do not 
require reconstruction due to abandonment and neglect.
    One commenter asked why this provision was included in the NWP, 
since ditch maintenance is exempt under Section 404(f) of the Clean 
Water Act. One commenter stated that other NWPs should be used to 
authorize work in rivers and streams on agricultural lands. One 
commenter said that a provision should be added to this paragraph 
requiring the land to remain in agricultural use if the ditches are 
maintained. Another commenter recommended adding a 500 linear foot 
limit to this part of the NWP.
    The Section 404(f) exemption for drainage ditch maintenance does 
not apply to the relocation of drainage ditches. To qualify for the 
exemption, the landowner cannot change the location of the drainage 
ditch or modify it beyond the original design dimensions and 
configuration. Since the relocation of drainage ditches constructed in 
non-tidal streams can increase agricultural production, it would be 
inappropriate to require the use of other NWPs to authorize this 
activity. Other activities in waters of the United States on 
agricultural lands, such as bank stabilization, may be authorized by 
other NWPs, regional general permits, or individual permits. We cannot 
add a provision to paragraph (d) requiring the landowner to keep the 
land in agricultural use if the ditches are relocated because such a 
provision is beyond the Corps regulatory authority and unenforceable. 
We do not believe that is necessary to impose a 500 linear foot limit 
on relocating drainage ditches constructed in waters of the United 
States because district engineers will receive a PCN for the relocation 
of greater than 500 linear feet of drainage ditches constructed in non-
tidal streams to determine if the proposed work will result in minimal 
adverse effects on the aquatic environment and can qualify for 
authorization under this NWP.
    Notification: We proposed requiring notification for activities 
that cause the loss of greater than \1/3\ acre of non-tidal wetlands or 
the relocation of greater than 500 linear feet of drainage ditches and 
previously substantially manipulated intermittent and small perennial 
streams. One commenter recommended a 1 acre PCN threshold. Another 
commenter recommended a \1/4\ acre PCN threshold, with agency 
coordination. One commenter requested that PCNs should be required for 
all activities authorized by this NWP. Another commenter stated that 
the PCN requirements for NWP 40 should be the same as for NWP 39. For 
ditch and stream relocations, recommended PCN thresholds included 150, 
200, and 3,000 linear feet. One commenter requested agency coordination 
for all wetland losses of greater than \1/3\ acre and all ditch and 
stream relocations.
    Notification to the District Engineer is required for discharges by 
non-participants in USDA programs to increase agricultural production 
that result in the loss of greater than \1/4\ acre of non-tidal 
wetlands, the construction of building pads for farm buildings, and for 
the relocation of greater than 500 linear feet of drainage ditches 
constructed in non-tidal streams. For USDA program participants, 
notification to the District Engineer is required if the proposed work 
involves activities in non-tidal wetlands and the relocation of greater 
than 500 linear feet of drainage ditches constructed in non-tidal 
streams or the construction of building pads for farm buildings, agency 
coordination will be conducted for activities requiring notification to 
the District Engineer if the proposed work results in the loss of 
greater than 1 acre of waters of the United States.
    Mitigation: Paragraphs (b) and (c) of the proposed modification of 
NWP 40 published in the July 1, 1998, Federal Register notice required 
submission of a mitigation plan to fully offset wetland losses. One 
commenter stated that the Corps should not require avoidance and 
minimization for potential losses of frequently cropped, previously 
altered farmed wetlands, because mitigation sequencing is not required 
under the

[[Page 39318]]

Farm Bill. In other words, the 404(b)(1) guidelines are not applicable 
to farmed wetland conversions and compensatory mitigation will be 
required by NRCS. A few commenters recommended that both the Corps and 
NRCS approve the required compensatory mitigation. Two commenters 
stated that the required compensatory mitigation should be reviewed by 
all agencies, not just NRCS. One commenter requested that any 
compensatory mitigation requirements for this NWP be the same as for 
all Corps permits.
    Although mitigation sequencing may not be required under the 1996 
Farm Bill, discharges of dredged or fill material into waters of the 
United States, including farmed wetlands, require a Section 404 permit, 
which may be authorized by NWPs. General Condition 19 of the NWPs 
requires the permittee to avoid and minimize impacts to waters of the 
United States on-site to the maximum extent practicable. Compensatory 
mitigation is required for all activities authorized by paragraph (a) 
of this NWP. For activities requiring notification to the District 
Engineer, compensatory mitigation may be required to ensure that 
activities authorized by this NWP result in minimal adverse effects on 
the aquatic environment. For the purposes of this NWP, compensatory 
mitigation used to satisfy the requirements of NRCS will be accepted by 
the Corps. To provide consistency for compensatory mitigation 
requirements and reduce confusion, NRCS and the Corps will develop, in 
cooperation with EPA, FWS and NMFS, joint mitigation guidance for this 
NWP.
    One commenter expressed concern that compensatory mitigation 
requirements will decrease the available amount of farm land and 
requested that the Corps annually report the amount of farm land used 
as compensatory mitigation. Two commenters supported the requirement to 
fully offset losses of waters, but stated that the NWP should require a 
minimum 1:1 replacement ratio. Another commenter said that compensatory 
mitigation should be limited to the enhancement, restoration, and 
creation of aquatic resources and exclude preservation, because the 
Farm Bill does not authorize preservation and NRCS policy does not 
allow preservation for Swampbuster purposes.
    We do not believe that the compensatory mitigation requirements of 
this NWP will substantially decrease the amount of available farm land 
because landowners have the option of avoiding impacts to waters of the 
United States, which would decrease the amount of land needed for 
wetland restoration and creation. In addition, compensatory mitigation 
is often conducted on farm land with marginal productivity, due to soil 
characteristics or wetness, that has the highest potential for wetland 
restoration. We disagree that preservation should be prohibited as a 
means of providing compensatory mitigation for activities that require 
notification to the Corps. Preservation is an extremely important 
method for protecting rare and high value waters of the United States 
from future losses.
    Use of NWP 40 with Other NWPs: One commenter stated that the 
portion of the preamble to the proposed modification of NWP 40 
published in the July 1, 1998, Federal Register that prohibits the 
future use of NWP A (i.e., NWP 39) if the farm is developed by the 
farmer or sold, should be included in the text of NWP 40. However, this 
commenter questions the Corps ability to monitor compliance with this 
provision. Another commenter suggested that NWP 40 should not be used 
with NWPs 39 or 44. One commenter recommended a 3 acre stacking limit. 
Another commenter suggested that any use of this NWP with other NWPs 
should be subject to the lowest acreage limit allowed for any of the 
NWPs.
    We have incorporated into NWPs 39 and 40 the provision addressing 
the future use of NWP 39 on the farm if that farm or portions of the 
farm are converted to residential, commercial, or institutional 
developments by the farmer or sold to a developer. The indexed acreage 
limit of paragraph (a) of NWP 39 cannot be exceeded, based on the 
project area and the subdivision provision of NWP 39. The Corps will 
rely on its records to track the use of NWPs 39 and 40 for a particular 
parcel of land. The use of more than one NWP for a single and complete 
project is addressed in the proposed modification of General Condition 
15.
    Other Comments: A number of commenters objected to allowing the use 
of NWP 40 on a farm every 5 years, because it would result in 
substantial cumulative losses of waters. One commenter recommended that 
the NWP should be used only once per project and if the land is no 
longer used for agricultural production the fill should be removed and 
the new use repermitted. Several commenters believe that NWP 40 should 
be subject to the same conditions as the NWP for residential, 
commercial, and institutional development activities and the NWP for 
mining activities. One commenter recommended including a reference to 
the Memorandum of Agreement between the Corps and NRCS concerning 
wetland delineations. One commenter objected to this NWP, stating that 
it does not address indirect impacts to waters caused by converting 
wetlands to agricultural use and cited water quality problems that can 
be caused by ditching activities. Another commenter recommended that 
the NWP include a requirement for vegetated buffers around streams on 
farm land, to filter out pollutants and nutrients and prevent erosion.
    We have removed the provision allowing the use of NWP 40 on a farm 
every five years, to make it more consistent with other NWPs. 
Restricting the use of NWP 40 to a single and complete farm operation 
will avoid substantial losses that could occur due to repeated use of 
this NWP every 5 years. We disagree with the recommendation that land 
no longer in agricultural use should be restored and any new uses 
repermitted. Such a requirement is impractical, places unnecessary 
burdens on the regulated public and the Corps, and provides no benefits 
to the aquatic environment. Former wetlands on agricultural lands may 
be used for aquatic habitat restoration, including mitigation banks and 
in lieu fee programs.
    We have attempted to provide consistency between proposed NWPs 39, 
40, and 44, but due to the differences in the types of activities 
authorized by these NWPs and their potential adverse effects on the 
aquatic environment, it is impractical to make the conditions for these 
NWPs identical. We do not believe that it is necessary to cite the 
Memorandum of Agreement between the Corps and NRCS concerning wetland 
delineations in this NWP, partly because it is currently undergoing 
revisions and it is not essential to the implementation of NWP 40. In 
accordance with the proposed modification of General Condition 9, 
district engineers can require a water quality management plan for 
activities authorized by this NWP, if the 401 certification does not 
require such a plan or address potential adverse effects to water 
quality. Both the water quality management plan and General Condition 
19 allow the District Engineer to require, as compensatory mitigation, 
the establishment and maintenance of vegetated buffers adjacent to 
streams.
    This NWP is subject to proposed General Conditions 25, 26, and 27, 
which will reduce its applicability. General Condition 25 prohibits the 
use of this NWP to authorize discharges into designated critical 
resource waters and wetlands adjacent to those waters. General 
Condition 26 prohibits the use of this NWP to authorize discharges 
resulting in the loss of greater than 1

[[Page 39319]]

acre of impaired waters, including adjacent wetlands. NWP 40 activities 
resulting in the loss of 1 acre or less of impaired waters, including 
adjacent wetlands, are prohibited unless prospective permittee 
demonstrates that the activity will not result in further impairment of 
the waterbody. General Condition 27 prohibits the use of NWP 40 to 
authorize permanent, above-grade fills in waters of the United States 
within the 100-year floodplain.
    In response to a PCN, district engineers can require special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. To allow NRCS 
to implement paragraph (a) of this NWP consistently throughout the 
country, division engineers cannot add regional conditions to paragraph 
(a) of NWP 40. However, division engineers can add regional conditions 
to paragraphs (b), (c), and (d) of NWP 40, since the Corps is 
responsible for reviewing these activities.
41. Reshaping Existing Drainage Ditches
    In the July 1, 1998, Federal Register notice, we proposed a new NWP 
(designated as NWP F) to authorize discharges of dredged or fill 
material into non-Section 10 waters of the United States for reshaping 
existing drainage ditches constructed in waters of the United States by 
altering the cross-section of the ditch to benefit the aquatic 
environment.
    Comments both in support and in opposition of this NWP were 
received, but most commenters recommended conditions to minimize 
potential impacts. Those in support of the NWP believe that it would be 
acceptable with regional conditions or Section 401 water quality 
certification conditions and that it will provide oversight or 
enforcement in order to reduce abuse in rural areas. Comments opposing 
the NWP ranged from no permit should be required at all, as this is an 
activity which is exempt from Section 404 regulation, to all activities 
in all ditch types should be prohibited in order to prevent degradation 
of aquatic resources. One commenter stated that Corps regulation of wet 
weather conveyances would be a huge paperwork burden contributing 
little to environmental quality. Several commenters stated that it is 
not always in the overall best interest of the aquatic resource to 
attempt to achieve improvements in water quality by simply reshaping 
the banks of the drainage ditch. Many commenters who expressed 
opposition to the proposed new and modified NWPs in general stated that 
this NWP was an exception because it would meet the minimal effect 
requirement.
    Many comments regarding jurisdiction were received. One commenter 
requested a discussion on jurisdiction as some Corps personnel take 
jurisdiction over upland ditches based on wetland parameters. Some 
commenters requested the Corps further clarify the distinction between 
maintenance work and work that would be authorized by this permit. Some 
commenters recommending modifying the text of the NWP to exclude ditch 
maintenance projects while others recommended the new NWP include all 
ditches that are man-made, regardless of whether or not maintenance has 
been performed. One commenter suggested that permits should never be 
required for minor drainage activities on agricultural land and for the 
maintenance of drainage ditches. Several commenters stated that 
roadside ditches are not waters of the United States even if they 
contain wetland vegetation. Many believe this permit authorizes work 
that is actually exempt from regulation. Other commenters proposed that 
the NWP should be applicable in Section 10, including tidal waters, as 
well. One commenter suggested that all natural perennial streams, 
channelized perennial streams, and/or rechannelized perennial streams 
should be excluded from this permit. Some commenters said that the 
permit should authorize the reconversion of abandoned ditches, while 
others stated that the Corps should stress that abandoned ditches may 
not be reconverted. Several commenters stated that this permit should 
provide authorization for reshaping obstructed channels. One commenter 
said that the permit should be rewritten to clarify that open drainage 
ditches, including channelized streams, cannot be considered abandoned 
as long as the maintenance authority exists and as long as all cropland 
draining to the ditch has not been abandoned. Another stated that this 
permit should not be used for streams that are called ``ditches'' or in 
channelized portions of streams that convey surface runoff and/or 
groundwater.
    Several commenters believe the NWP should be more inclusive and 
should allow some realignment of the waterway if it is beneficial to 
the aquatic environment. One group recommended that ditch relocation 
should be allowed because when shopping centers are renovated or 
expanded, because the relocation of ditches is often the only activity 
regulated by the Corps. Several commenters recommended the permit 
should allow for a change in centerline location when the activity 
pertains to roadside ditches where transportation agencies are 
flattening the side slopes for safety purposes. Additionally, minor 
relocation of the ditch could have as much or more of a benefit on 
improving water quality and should be allowed under this permit. Some 
commenters requested that deepening of ditches should be included 
because some ditches were originally dug without enough grade to keep 
them from accumulating excess sediment. Other commenters stated that 
deepening of drainage ditches should not be allowed beyond the original 
configurations due to the resultant additional wetland drainage. One 
commenter suggested that this permit should not be used to authorize 
diversion or drainage of wetlands or the expansion of the drainage 
ditch size. And lastly, one commenter recommended that this permit be 
broadened to include all reshaping that might not be exempt as 
maintenance.
    Discharges associated with the maintenance of drainage ditches 
constructed in waters of the United States are exempt from regulation 
under Section 404, provided the drainage ditch is returned to its 
original dimensions and configuration (see 33 CFR Part 323.4(a)(3)). 
However, the modification or new construction of drainage ditches in 
waters of the United States requires a Section 404 permit. Since the 
maintenance of drainage ditches to their original dimensions and 
configurations is exempt from Section 404 permit requirements, the 
purpose of the proposed NWP is to encourage reshaping of ditches in a 
manner that provides benefits to the aquatic environment. This NWP is 
limited to reshaping currently serviceable drainage ditches constructed 
in non-tidal waters of the United States, excluding non-tidal wetlands 
adjacent to tidal waters, provided the activity does not change the 
capacity or location of the drainage ditch. We have changed the 
applicable waters for this NWP to make it more consistent with most of 
the proposed NWPs. The centerline of the reshaped drainage ditch must 
be in essentially the same location as the centerline of the existing 
ditch. The proposed NWP does not authorize reconstruction of drainage 
ditches that have become ineffective through abandonment or lack of 
regular maintenance. This NWP authorizes discharges to grade the banks 
of ditches at a gentler slope than they were originally constructed for 
the purpose of reducing erosion and decreasing sediment transport down 
the ditch by

[[Page 39320]]

trapping sediments. Shallower slopes may increase the amount of 
vegetation along the bank of the ditch, which can decrease erosion, 
increase nutrient and pollutant uptake by plants, and increase the 
amount of habitat for wildlife. We believe that the deepening and/or 
widening of a ditch, allowing the centerline to be relocated, and 
allowing abandoned ditches to be reconverted could result in more than 
minimal adverse effects on the aquatic environment.
    Several commenters suggested this permit should be removed from 
consideration until questions concerning the Tulloch Rule are resolved, 
because a landowner does not know if he or she is required to obtain a 
permit for excavation activities or reshaping existing ditches in 
wetlands that involve only ``incidental fallback.'' The intent of this 
NWP is to authorize a certain activity that does not qualify for the 
maintenance exemption and is not for the purpose of increasing drainage 
capacity. We believe that this NWP should not be made more inclusive. 
The intent of this NWP is to authorize those ditch reshaping activities 
that involve more than ``incidental fallback.''
    The proposed NWP may not be used to relocate drainage ditches or to 
modify drainage ditches to increase the area drained by the ditch 
(e.g., by widening or deepening the ditch beyond its original design 
dimensions or configuration) or to construct new drainage ditches if 
the previous drainage ditches have been neglected long enough to 
require reconstruction. This NWP does not authorize the channelization 
or relocation of streams to improve capacity of the streams to convey 
water. An individual permit, another NWP, or a regional general permit 
may authorize the construction of new drainage ditches or the 
reconstruction of drainage ditches. The proposed NWP does not authorize 
the maintenance or reshaping of drainage ditches constructed in 
navigable waters of the United States (non-tidal wetlands that are 
adjacent to tidal waters are also excluded). A Section 10 permit is 
required for the maintenance or modification of drainage ditches 
constructed in navigable waters of the United States. We believe that 
modifying this permit to authorize work in Section 10 waters could 
result in the authorization of activities that have more than minimal 
adverse effects on the aquatic environment.
    One commenter recommended that NWP 27 should be expanded to include 
this activity while another suggested that it should be authorized 
under NWP 3. We do not agree that this activity is similar enough to 
the activities authorized by NWP 27 to warrant its inclusion in NWP 27. 
The purpose of NWP 27 is to restore, enhance, and create wetland and 
riparian areas and restore and enhance non-tidal streams and open 
waters. The purpose of proposed NWP 41 is to improve water quality. NWP 
3 does not currently authorize reshaping of drainage ditches 
constructed in waters of the United States because this activity is not 
maintenance or repair. NWP 3 authorizes only maintenance activities 
with minor deviations from the previously authorized configuration; 
reshaping drainage ditches typically involves more than minor 
deviations in ditch cross sectional shape.
    Many commenters believe that this NWP will result in the 
destruction of riparian habitat, specifically adjacent plant 
communities, and degrade water quality through the sidecasting of 
excavated material into wetlands. One commenter stated that the permit 
would prevent the natural process that increases wetland acreage 
through natural deposition of detritus and sediment in natural cycles 
that create wetlands. Other commenters believe that this NWP would 
cause the degradation of salmon and other fisheries habitat through the 
removal of woody debris and that this permit would authorize activities 
that reduce the geomorphic ``complexity'' of a stream causing it to 
become more uniform and adversely affect some fisheries. One commenter 
said that activities authorized by this NWP will have a detrimental 
effect on water quality due to a decrease in the velocity of the stream 
and it is possible that the stability of the stream could be 
compromised due to an unbalanced width/depth ratio. Several commenters 
stated that the permit would result in more rapidly draining farm files 
in the Midwest, which would increase scouring of banks and waterways 
and degrade water quality. One commenter said that the permit should be 
modified to state that channel reshaping cannot change the discharge 
rate or volume of the ditch.
    To address concerns for vegetation adjacent to drainage ditches 
that may be removed as a result of the authorized activity, we have 
added a second notification requirement to the proposed NWP. The 
prospective permittee must notify the District Engineer if more than 
500 linear feet of drainage ditch is to be reshaped. District engineers 
can review the proposed work and determine if the clearing of adjacent 
vegetation will result in more than minimal adverse effects on the 
aquatic environment. We do not agree that the activities authorized by 
this NWP will disrupt the natural creation of wetlands or result in 
substantial degradation of aquatic habitat in streams. It is important 
to note that drainage ditch maintenance is exempt under Section 404(f). 
If a stream was channelized to improve drainage, the maintenance of the 
drainage ditch constructed in the stream is an exempt activity. The 
purpose of this NWP is to encourage landowners to maintain the drainage 
ditches constructed in waters of the United States in a manner that 
benefits the aquatic environment in most cases. Reshaping the drainage 
ditch with flatter side slopes will improve water quality and decrease 
the velocity of water flowing through the ditch. This NWP does not 
authorize modifications to the configuration of the drainage ditch to 
increase the area drained by the ditch. We believe that the proposed 
NWP adequately states this requirement. For those activities that 
require notification, district engineers can impose special conditions 
on the NWP authorization to ensure that the work results in minimal 
adverse effects or exercise discretionary authority and require an 
individual permit.
    Some commenters noted that over time, through natural processes, 
the side slopes of ditches often become flatter than they wee 
originally. In those cases, they say, it would not make sense to 
require a permit to maintain existing slopes, even if they are not the 
original slopes. This NWP does not require the landowner to maintain 
existing slopes, if they have eroded naturally.
    Many commenters stated that this NWP contains vague language and 
that many terms require clear definition in the context of this permit, 
especially ``maintenance,'' ``modification,'' ``reconstruction,'' 
``regular maintenance,'' ``abandonment,'' and ``loss of 
serviceability.'' One commenter stated the phrase ``reshaping to 
benefit the aquatic environment'' means significantly different things 
in different parts of the country.
    We do not agree that definitions of the terms ``maintenance,'' 
``modification,'' ``reconstruction,'' and ``regular maintenance,'' need 
to be provided with the proposed NWP. For the purposes of this NWP, the 
definitions of these terms are the same as the definitions in common 
usage today. District engineers will determine which ditch reshaping 
activities constitute maintenance and which activities constitute 
reconstruction. District engineers will determine when a particular 
drainage ditch is considered abandoned. Loss of

[[Page 39321]]

serviceability is considered to be the point at which a ditch no longer 
functions as a drainage ditch, and reconstruction is needed.
    Several commenters asked how the original ditch conditions would be 
determined and how the Corps would distinguish between 
``reconstruction'' and ``maintenance to original dimensions.'' Some 
asked on what basis it would be determined that the proposed project 
would improve water quality and how the area of wetland drained by the 
original ditch would be determined. Also, some commenters questioned 
how one would determine that the proposed channel shape would not 
change discharge rate or volume. These commenters also asked who would 
be responsible for making these determinations.
    District engineers will determine which activities constitute 
maintenance, reshaping, or reconstruction. They will use any available 
information to make these determinations, including field evidence. In 
general, changing the configuration of the drainage ditch to slow water 
flow and increase vegetation in the ditch will help improve water 
quality because the plants and microbes in the ditch will have more 
contact with the water and remove more nutrients and other compounds 
from the water. Slower water flow rates will also decrease the sediment 
load of the water. The area drained by the ditch can be determined by 
using available models, which consider factors such as soil type, ditch 
depth, ditch width, etc. The permittee may be required by the District 
Engineer to demonstrate that the proposed ditch reshaping activity will 
not increase the area drained by the ditch.
    Another subject that generated many comments is the definition of a 
drainage ditch. One commenter stated that while some drainage ditches 
were clearly excavated, either though uplands or wetlands, for the 
purpose of creating a drainage channel where one did not exist 
previously, in many other cases, natural streams or drainageways were 
excavated to increase drainage capacity. In many instances, this took 
place decades ago and the waterway has been considered a ``ditch'' by 
adjacent landowners since that time. Some commenters believe that 
channelized streams should not be considered ditches and that this NWP 
should apply only to ditches constructed in uplands and wetlands. 
Others, however, noted that in some parts of the country, most 
functioning ditches were once natural waterways.
    Understanding the differences in definitions of a ditch across the 
county, we have included a definition of the term ``drainage ditch'' in 
the ``Definitions'' section of the NWPs. This definition recognizes 
that drainage ditches may be constructed in uplands or waters of the 
United States, including wetlands and streams. A stream which has been 
channelized to improve surface drainage is considered a drainage ditch, 
for the purposes of the NWP program. District engineers will use 
judgement to determine whether a stream is a drainage ditch and 
eligible for the Section 404(f) exemption.
    Some commenters stated that, to meet minimal adverse effect 
criteria, this NWP should have acreage and/or stream length limits. The 
recommended acreage limits ranged from \1/10\ to 1 acre. Stream length 
limits ranged from zero to one mile. There were recommendations for 
compensatory mitigation requirements, such as requiring compensatory 
mitigation for impacts greater than 1 acre. Some commenters suggested 
PCN thresholds. Some commenters cautioned that when a PCN is not 
required, conditions are often ignored and that a PCN should always be 
required for work in drainage ditches. Other commenters stated that the 
NWP should not authorize discharges of excavated material into waters 
of the United States. One commenter believes the NWP should be 
conditioned to allow its use only once per watershed and should not be 
used in any area identified as having water quality problems or in any 
outstanding resource waters. At least one commenter stated that public 
review should be required for all work on public storm drain systems 
because they directly affect the public and are paid for with public 
funds.
    We have determined that no acreage limit is necessary for the 
proposed NWP, because the authorized work is intended to benefit the 
aquatic environment, by changing the shape of the drainage ditch to 
improve water quality and other aspects of the aquatic environment. 
Notification will be required when excavated material is sidecast into 
waters of the United States or greater than 500 linear feet of drainage 
ditch is reshaped. The latter PCN requirement was added to address 
concerns for adverse effects to riparian areas adjacent to ditches 
constructed in waters of the United States. District engineers will 
review the PCNs to determine if the proposed work will result in 
minimal adverse effects on the aquatic environment. Prohibiting the 
sidecasting of excavated material into waters of the United States 
would discourage ditch reshaping activities because the Section 404(f) 
exemption for ditch maintenance allows sidecasting. Such a prohibition 
would cause many landowners to maintain the ditch at its originally 
designed configuration to qualify for the exemption. Since the purpose 
of the proposed NWP is to encourage ditch maintenance activities that 
improve the aquatic environment, it would be counterproductive to limit 
its use to only once per watershed or require public review.
    Some commenters recommended that compensatory mitigation be 
required for all activities authorized by this NWP. Other commenters 
asked for clarification that compensatory mitigation is not required. 
One commenter believes that the applicants should be required to 
provide documentation regarding the scope and effect of the existing 
drainage ditch before and after the reshaping activity. Another 
commenter stated that the applicant should be required to obtain a 
minimal effect determination and certification from NRCS stating that 
best management practices have been employed. One commenter suggested 
that the Corps should require the submittal and review of an erosion 
and sediment control plan prior to authorizing use of this NWP because 
these conditions are generally ignored when placed on the permit 
itself. Another commenter suggested that a minimum riparian buffer 
should be established or maintained as part of the authorization. 
Several commenters believe that revegetation of ditch banks with tree 
or shrub species should be required after construction to minimize loss 
of riparian habitat and reduce the potential for increasing water 
temperatures within the ditch. Another commenter recommended: (1) 
Conditioning the NWP to prohibit alteration or replacement of one type 
of stream substrate with another type; (2) the NWP should not authorize 
more than minimal adverse effects to riparian corridors during 
construction activities; (3) the NWP should require the replacement of 
riparian corridors when they are destroyed during construction; and (4) 
the NWP should not authorize the sidecasting of material in such a 
manner that the material would block or impede overland surface flows 
into any jurisdiction water of the United States, including wetlands.
    We have determined that compensatory mitigation will normally not 
be required for the work authorized by this NWP because the purpose of 
the proposed NWP is to authorize ditch reshaping activities that 
improve water quality and aquatic habitat. If the project proponent did 
the work to qualify for the Section 404(f) exemption,

[[Page 39322]]

compensatory mitigation would not be required since the activity is 
exempt. Requiring compensatory mitigation for modifying the cross-
sectional configuration of the ditch may encourage maintenance to the 
original dimensions and configuration and discourage reshaping the 
ditch to benefit the aquatic environment. We do not agree that 
permittees should be required to provide a statement discussing the 
effects of ditch reshaping or that they should be required to obtain a 
certification from NRCS. Compliance with any required sediment and 
erosion control plan is the responsibility of the permittee. Permittees 
are encouraged to maintain a vegetated buffer along one side of the 
ditch, but regular maintenance activities will prevent the development 
of a woody vegetated buffer along the side of the ditch used by 
equipment to perform the excavation.
    Several commenters presented a variety of potential problems and 
concerns about this NWP. Some commenters believe that this permit will 
be very difficult to implement and will require substantial 
coordination with the Corps that previously was not required and will 
delay implementation of projects. Many commenters requested assurance 
that it would be used strictly and successfully for water quality 
improvement. They believe the existing drainage ditch exemption is 
often abused, resulting in the reditching of long-abandoned ditches, 
the excavation of natural streams, and the expansion of ditches beyond 
their original dimensions. They envision abuse of this NWP by 
applicants stating a water quality improvement purpose, but really 
intending to remove woody vegetation from the stream bank or increase 
channel capacity to drain a new area. This group of commenters was 
concerned that adverse effects on the aquatic environment resulting 
from activities authorized by this NWP would be more than minimal and 
could result in loss of important riparian habitat bordering 
naturalized drainage ditches. They were also concerned about filling 
and permanent loss of wetlands as a result of sidecasting. Several of 
these commenters pointed out that many of the conditions of this NWP 
are very difficult to measure, such as determining if the drainage area 
has been increased and determining the changes in ditch configuration 
without altering capacity. They caution that some channel reshaping 
projects might not be beneficial or would involve a complex trade-off 
between various environmental values including habitat, flood control, 
and water quality. One commenter said the permit should have language 
which encourages retaining the structure and functions of the wetland 
and stream habitats.
    In response to the comments in the previous paragraph, we must 
reiterate that the proposed NWP is intended to encourage ditch 
maintenance activities that benefit the aquatic environment. This NWP 
authorizes activities that are exempt from Section 404 permit 
requirements if those activities were done strictly as maintenance to 
the original ditch design configuration. Although the ditch may be a 
channelized stream, excavation activities to maintain the drainage 
ditch do not require a Section 404 permit. We believe that a drainage 
ditch can be reconfigured to provide water quality benefits without 
increasing the area drained by the ditch. The removal of riparian 
vegetation from uplands adjacent to a channelized stream is not 
regulated by the Corps under Section 404. Sidecasting of excavated 
material into waters of the United States is exempt from Section 404 
permit requirements if the activity is associated with ditch 
maintenance. We believe that conditioning this NWP to prohibit the 
sidecasting of excavated material into waters of the United States 
would severely limit the use of this NWP and encourage exempt 
maintenance activities. Likewise, conditioning this NWP to require the 
permittee to maintain the wetlands and stream habitat in the project 
area would encourage exempt maintenance activities that have more 
adverse effects on the aquatic environment.
    This NWP is subject to proposed General Condition 26, which will 
reduce its applicability. General Condition 26 prohibits the use of 
this NWP to authorize discharges resulting in the loss of greater than 
1 acre of impaired waters, including adjacent wetlands. NWP 41 
activities resulting in the loss of 1 acre or less of impaired waters, 
including adjacent wetlands, are prohibited unless prospective 
permittee demonstrates to the District Engineer that the activity will 
not result in further impairment of the waterbody. Notification to the 
District Engineer is required for all activities authorized by this NWP 
in impaired waters and wetlands adjacent to those impaired waters.
    Division engineers can regionally condition this NWP to exclude 
certain waterbodies or require notification when waters or unique areas 
that provide significant social or ecological functions and values may 
be adversely affected by the work. Activities authorized by this NWP 
will have minimal adverse effects on the aquatic environment, since it 
is limited to existing drainage ditches and activities that improve 
water quality. District engineers can exercise discretionary authority 
when very sensitive or unique areas, such as salmonid habitat mentioned 
by several commenters, may be adversely affected by these activities. 
The PCN requirement allows Corps districts, on a case-by-case basis, to 
add appropriate special conditions to ensure that the adverse effects 
are minimal. The District Engineer can also assert discretionary 
authority to require an individual permit for any activity that may 
have more than minimal adverse effects. Proposed NWP F is designated as 
NWP 41, with the proposed modifications discussed above.
42. Recreational Facilities
    In the July 1, 1998, Federal Register notice, we proposed an NWP to 
authorize discharges of dredged or fill material into non-tidal waters 
of the United States, excluding non-tidal wetlands contiguous to tidal 
waters, for the construction or expansion of passive recreational 
facilities.
    Several commenters were concerned about the title of this NWP. Some 
commenters expressed confusion at the definition of passive 
recreational facilities. Other commenters were interested in exactly 
what activities were authorized. One commenter suggested that the Corps 
clarify what is meant by the term ``open space'' and when a 
recreational facility is considered to have a substantial amount of 
buildings and other impervious surfaces. Several commenters suggested 
defining the wording ``substantially'' when considering the amount of 
grading necessary for a particular activity.
    To help reduce confusion, we have eliminated the word ``passive'' 
from this NWP and changed the title of the proposed NWP to 
``Recreational Facilities.'' The definition of the term ``recreational 
facilities,'' as used for this NWP, and the types of activities 
authorized by this NWP have not been modified. For the purposes of this 
NWP, recreational facilities are defined as low-impact recreational 
facilities that are constructed so that they do not substantially 
change preconstruction grades or deviate from natural landscape 
contours. Low-impact recreational facilities include, but are not 
limited to, bike paths, hiking trails, campgrounds, and running paths. 
The construction of golf courses or the expansion of golf courses and 
ski areas, can be authorized by this NWP, provided these facilities are 
integrated into the existing landscape, do not require substantial

[[Page 39323]]

amounts of grading or filling, and adverse effects to wetlands and 
riparian areas are minimized to the extent practicable.
    The term ``open space'' refers to areas not disturbed by the 
construction or expansion of the recreational facility, such as 
forests, fields, riparian areas, etc. Open spaces do not contain any 
buildings. District engineers will determine when a proposed activity 
involves a substantial amount of buildings, concrete, asphalt, or other 
impervious surfaces. The land area for the recreational facility 
authorized by the proposed NWP should consist only of a small 
proportion of impervious surface. District engineers will also 
determine when the amount of grading is substantial.
    One commenter stated that facilities for walking, biking, and 
running require substantial filling and grading if they are located in 
hydric soils. One commenter suggested that gravel paths are pervious 
and should qualify for authorization under this NWP. A couple of 
commenters suggested that roads are not pervious features and should be 
excluded from authorization by this permit. Several commenters 
recommended expanding this permit to include other activities that are 
beneficial to the community, such as playgrounds, pools, and ball 
fields, suggesting that these activities are no more harmful to the 
environment than ski areas or golf courses. Many commenters objected to 
the inclusion of golf courses, campgrounds, and ski areas in this NWP, 
stating that these activities are not consistent with the concept of 
passive recreational facilities and do not have low impacts on aquatic 
resources.
    Walking, running, and biking trails do not necessarily require 
substantial grading or filling of hydric soils. These trails can be 
constructed by placing a layer of gravel or crushed stone on the trail 
or placing a thin layer of asphalt on the soil surface. In some 
situations, a footer may be excavated to construct a base for the 
gravel or asphalt trail. District engineers will determine when the 
construction of a trail involves substantial grading or filling. Timber 
decks and walkways should be used where possible to minimize losses of 
waters of the United States. Gravel paths and roads are considered 
pervious. The proposed NWP can authorize the construction of roads to 
provide access to the recreational facility, including support 
buildings. However, the roads must be constructed at grade with 
pervious materials. Other types of roads to provide access to the 
recreational facility can be authorized by other NWPs, such as NWP 14, 
as long as the permittee complies with General Condition 15. The 
construction of substantial amounts of roads within the recreational 
facility is not authorized, since this NWP does not authorize 
recreational facilities for use by motor vehicles.
    Pools, playing fields, and arenas are not authorized by this NWP. 
These activities typically involve substantial grading and filling and 
the use of impervious materials for construction. Recreational 
facilities can be either public or private and will not have a 
substantial amount of buildings and other impervious surfaces, such as 
concrete or asphalt. The proposed NWP also authorizes the construction 
or expansion of small support facilities such as office buildings, 
maintenance buildings, storage sheds, and stables, but does not 
authorize the construction of associated hotels or restaurants. The 
construction or expansion of campgrounds can be authorized by this NWP, 
provided they are integrated into the existing landscape. These 
campgrounds should have few impervious surfaces (e.g., concrete or 
asphalt) and should consist of small cleared areas for tents and picnic 
tables connected by dirt or gravel trails or roads.
    The proposed NWP does not authorize the construction or expansion 
of campgrounds for mobile homes, trailers, or recreational vehicles. 
This NWP does not authorize the construction of playing fields, 
basketball or tennis courts, racetracks, stadiums, or arenas. 
Recreational facilities not authorized by this NWP may be authorized by 
another NWP, a regional general permit, or an individual permit. 
Playing fields, playgrounds, and other golf courses may be authorized 
by NWP 39 if they are attendant features of residential, commercial, or 
institutional developments. For example, NWP 39 can authorize the 
construction of a golf course, provided the golf course is an attendant 
feature of a residential subdivision. The construction of hotels and 
conference centers that are sometimes associated with recreational 
facilities are not authorized by this NWP, but may be authorized by NWP 
39, a regional general permit, or an individual permit.
    Many commenters objected to the inclusion of support facilities or 
buildings in this permit. Several commenters wanted clarification on 
how much and what type of support buildings are authorized.
    This NWP authorizes only small support facilities that are 
essential to the operation of the recreational facility. District 
engineers will determine what constitutes a ``small'' support facility. 
Support facilities typically include maintenance buildings, storage 
buildings, and stables, but may also include buildings that store 
equipment (e.g., bicycles and canoes) that can be rented by users of 
the recreational facilities, and small offices. We anticipate that 
these structures will be small and typically have minimal adverse 
effects on the aquatic environment. Therefore, it is appropriate to 
include these structures in the NWP. We have modified the text of this 
NWP to specify that the NWP only authorizes small support facilities. 
The fact that these buildings must be directly related to the 
recreational activity, along with the acreage limit and PCN thresholds, 
will ensure that such support facilities are carefully considered and 
will have only minimal adverse effects on the aquatic environment.
    A couple of commenters objected to the inclusion of golf courses 
and ski areas in this NWP because these facilities also require 
intensive maintenance activities, including the application of 
fertilizers and pesticides, as well as utility and road maintenance. 
Additionally, some ski areas may hydrologically alter certain areas as 
artificial snow is created, affecting water flow and adversely 
impacting trout streams. One commenter suggested that this permit 
should only allow limited size play throughs, and filling of only small 
isolated wetlands. This commenter and others further stated that this 
permit should focus on preserving natural systems and landscape 
features, and incorporating them into the design for the course. 
Several commenters objected to the authorization of these types of 
activities due to their impacts on the environment, suggesting that 
such activities do not have to be located in wetlands.
    The proposed NWP authorizes the construction and expansion of golf 
courses and the expansion of ski areas, provided they are integrated 
into the existing landscape. The construction of new ski areas is not 
authorized by this NWP. These facilities may also require some support 
buildings with some minor grading and filling for building pads and 
foundations. Golf courses may require the placement of crushed stone or 
gravel for cart paths or some minor fill for greens and associated 
construction activities. We believe it is appropriate to include these 
activities in this NWP.
    Golf courses and expanded ski areas authorized by this NWP should 
be

[[Page 39324]]

subject to careful environmental design and planning. For example, 
features to control surface runoff, buffers established and maintained 
adjacent to open waters, integrated pest management, and careful 
fertilizer and pesticide application, are examples of maintenance and 
operation activities which reduce the impacts of these facilities on 
the aquatic environment. These types of features and practices may be 
part of the water quality management plan required by the proposed 
modification of General Condition 9. A well-designed golf course 
authorized by this NWP will have avoided most of the wetlands on the 
site, incorporated stormwater management facilities into the course to 
protect local water quality, and established and maintained vegetated 
buffers adjacent to open or flowing waters.
    One commenter asked why a project proponent would request 
authorization under this NWP when a larger golf course could be 
authorized by NWP 39. Another commenter questioned the statement in the 
proposed NWP suggesting that commercial recreational facilities may be 
authorized by NWP 39. Several commenters stated that the Corps will 
subject golf courses to more restrictions and that those restrictions 
should be stated in the NWP.
    Proposed NWP 39 authorizes the construction of building pads, 
foundations, and attendant features for residential, commercial, and 
institutional developments. NWP 39 does not authorize the construction 
of golf courses on its own, unless those golf courses are attendant 
features of developments. However, NWP 39 can be used to authorize 
support buildings for a golf course, such as equipment storage 
buildings and clubhouses. Other recreational facilities can be 
authorized by NWP 39, such as playgrounds or playing fields associated 
with schools, provided those recreational facilities are attendant 
features of the school buildings. We have adequately discussed the 
restrictions on golf courses in the text of NWP 42. Division engineers 
can regionally condition this NWP to impose additional restrictions on 
this NWP and ensure that it authorizes only activities with minimal 
adverse effects on the aquatic environment. District engineers can 
exercise discretionary authority if the proposed work may result in 
more than minimal adverse effects or place case-specific special 
conditions on an NWP authorization to ensure that the authorized work 
results in minimal adverse effects on the aquatic environment.
    Several commenters supported the proposed 1 acre limit for this 
NWP. One commenter suggested that the NWP should authorize the loss of 
no more than \1/4\ acre of waters of the United States or 20 linear 
feet of stream. Another commenter suggested that the NWP should have an 
acreage limit of 1 acre or 20 percent of the total wetland area on the 
site, with a prohibition against filling fens, seeps, springs, sand 
ponds, or bogs. One commenter suggested that this permit should not 
authorize activities within 200 feet of streams or rivers that contain 
habitat for salmon. One commenter requested that this permit authorize 
only up to \1/3\ of an acre of impacts for linear impact recreational 
facilities such as hiking, and biking trails. One commenter recommended 
that stream bed impacts should not be authorized by this permit since a 
passive recreational facility ``does not substantially change 
preconstruction grades or deviate from natural landscape contours.''
    We believe that a 1 acre limit for recreational facilities is 
appropriate. This limit, with the notification requirements, will 
ensure that only activities with minimal adverse effects on the aquatic 
environment are authorized by this NWP. With regard to limiting the use 
of the proposed NWP in certain aquatic habitat types, we believe that 
these issues are more appropriately addressed at the regional level 
where division engineers can impose regional conditions to restrict the 
use of this NWP in high value waters, or prohibit its use in certain 
waterbodies. To make this NWP consistent with most of the other 
proposed NWPs, we are proposing to change the applicable waters for 
this NWP to ``non-tidal waters, excluding non-tidal wetlands adjacent 
to tidal waters.'' We disagree that the NWP should not include impacts 
to stream beds. The recreational facility may require crossings over 
streams or bank stabilization activities.
    One commenter suggested significantly reducing the proposed PCN 
thresholds of \1/3\ acre and 500 linear feet of stream bed. A couple of 
commenters suggested that a PCN should be required for all activities 
authorized by this NWP, because passive recreational facilities are 
usually built in areas that are recognized as environmentally 
sensitive. One commenter requested that Federal agencies should be 
provided the authority to reject an activity for consideration under 
this permit.
    To make the PCN thresholds of the proposed NWP consistent with the 
PCN thresholds of the other new NWPs, we have reduced the PCN threshold 
to \1/4\ acre. The PCN requirement for activities causing the loss of 
greater than 500 linear feet of perennial and intermittent stream bed 
will be retained. These PCN requirements will help ensure that the 
activities authorized by this NWP result in minimal adverse effects on 
the aquatic environment. Since this NWP has a 1 acre limit, there will 
be no agency coordination for PCNs. In addition, we do not believe that 
agency coordination is necessary, since this NWP authorizes only those 
recreational facilities that are integrated into the natural landscape 
and consist primarily of open space.
    A commenter suggested that trails resulting in the loss of less 
than one acre of non-tidal waters of the United States should be exempt 
from the requirements of General Condition 9, especially the 
requirement for a water quality management plan.
    The District Engineer will determine if the proposed recreational 
facility requires a water quality management plan to comply with 
General Condition 9. Small trails may not require such a plan. However, 
where there are water quality concerns due to the construction and use 
of the facility, vegetated buffers may be required. Stormwater 
management facilities may also be required.
    One commenter said that features such as roads, buildings, and golf 
courses result in significant indirect and cumulative impacts in 
watersheds by inducing growth in surrounding areas and increasing 
runoff and hydrologic modifications. This commenter further suggested 
that regionally significant resources should be excluded from this NWP 
or impacts to such resources limited. Many commenters focused on the 
requirement that this permit should preserve natural systems and that 
the authorized facilities must be integrated into the natural 
landscape. One commenter stated that this permit is not consistent with 
sound watershed management. One commenter stated that the NWP 
encourages the removal of trees and other vegetation adjacent to waters 
of the United States, which would increase stream bank erosion, and 
that the Corps should establish explicit general conditions which 
prohibit activities that result in removal of stream bank vegetation 
within riparian areas.
    The potential for activities authorized by this NWP to induce 
growth in surrounding areas is outside of the Corps scope of analysis, 
unless the induced growth involves activities regulated by the Corps. 
These low-impact recreational facilities may also be constructed in 
areas already subject

[[Page 39325]]

to increasing populations. The recreational facilities authorized by 
the proposed NWP are low-impact, and will not cause significant 
hydrological modifications because the facilities authorized by this 
NWP consist mostly of open space, with a small proportion of impervious 
surface. The requirements of General Conditions 9 and 21 will also 
ensure that the authorized activities do not cause substantial 
hydrological modifications. The recreational facilities authorized by 
this NWP will help preserve open space if they are constructed in the 
vicinity of urbanizing areas. The construction of low-impact 
recreational facilities is consistent with sound watershed management 
practices. The NWP does not encourage the removal of riparian 
vegetation. This NWP, like the other new NWPs, require the 
establishment and maintenance of vegetated buffers adjacent to waters 
of the United States to the maximum extent practicable (see General 
Condition 9).
    Many commenters requested that mitigation should be required for 
activities authorized by this NWP. One commenter opposed the use of in 
lieu fee or mitigation banking programs to serve as mitigation for 
losses of waters of the United States authorized by this permit. 
Another commenter recommended that mitigation should be required for 
losses of less than \1/3\ acre, either through mitigation banks or in 
lieu fee programs. One commenter stated that preservation of adjacent 
green space is not acceptable as mitigation. This commenter further 
stated that the NWP indicates that buffer zones may be required, but 
there is not an explicit requirement for vegetated buffers and the 
benefit of such buffers is questionable. One commenter said that the 
remaining wetlands on the site should be protected from further 
development through deed restrictions. Another commenter requested that 
the Corps require monitoring and evaluation standards for mitigation 
plans.
    District engineers may require compensatory mitigation for 
activities authorized by this NWP to ensure that the net adverse 
effects to the aquatic environment are minimal. Mitigation banks and in 
lieu fee programs can be appropriate methods to provide compensatory 
mitigation for activities authorized by this NWP. The preservation of 
wetlands or vegetated buffers on the site can satisfy compensatory 
mitigation requirements, especially if there are high value waters on 
the project site that should be protected. The establishment and 
maintenance of vegetated buffers adjacent to waters of the United 
States can be an important part of the compensatory mitigation required 
by district engineers. We cannot require the permittee to preserve the 
remaining waters on the site, unless the preservation satisfies a 
compensatory mitigation requirement. Otherwise, such a preservation 
requirement could be considered a taking of private property. Through 
special conditions, district engineers can require compensatory 
mitigation, including monitoring plans and evaluation standards.
    Several commenters were concerned with the use of this NWP with 
other NWPs to authorize activities with larger impacts to the aquatic 
environment.
    We are proposing to modify General Condition 15 to address the use 
of more than one NWP to authorize a single and complete project. In 
accordance with the proposed modification of General Condition 15, this 
NWP can be used with other NWPs to authorize a single and complete 
project, as long as the activity does not cause the loss of waters of 
the United States in excess of the highest specified acreage limit of 
the NWPs used to authorize that project. Although this NWP is intended 
to authorize all activities associated with a single and complete 
recreational facility, there may be some related activities, such as 
bank stabilization in tidal waters, that cannot be authorized by NWP 42 
but can be authorized by other NWPs.
    This NWP is subject to proposed General Conditions 25, 26, and 27, 
which will reduce its applicability. General Condition 25 prohibits the 
use of this NWP to authorize discharges into designated critical 
resource waters and wetlands adjacent to those waters. In accordance 
with General Condition 26, recreational activities resulting in the 
loss of 1 acre or less of impaired waters, including adjacent wetlands, 
cannot be authorized by NWP 42 unless prospective permittee 
demonstrates to the District Engineer that the activity will not result 
in further impairment of the waterbody. General Condition 27 prohibits 
the use of NWP 42 to authorize permanent, above-grade fills in waters 
of the United States within the 100-year floodplain.
    In response to a PCN, district engineers can require special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, provides for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities. Proposed NWP D is designated as NWP 42, with the 
proposed modifications discussed above.
43. Stormwater Management Facilities
    This NWP was proposed in the July 1, 1998, Federal Register as NWP 
C to authorize the discharges of dredged or fill material into non-
Section 10 waters of the United States, including wetlands, for the 
construction and maintenance of stormwater management (SWM) facilities.
    A large number of comments were received in response to the 
proposed NWP, many commenters supporting the NWP and other commenters 
opposing the issuance of this NWP. Those commenters supporting the NWP 
stated that it would greatly enhance low-value wetland areas and 
attenuate the effects of flood waters. Some commenters requested the 
withdrawal of this NWP. Commenters opposing the issuance of this NWP 
stated that its use will result in more than minimal adverse effects on 
the aquatic environment. A number of commenters stated that the NWP 
would be difficult for the Corps to implement. One commenter said that 
there is no need for this NWP, because SWM facilities can be authorized 
by NWP 39 as a part of the residential, commercial, and institutional 
development. Several commenters were concerned about the possible use 
of this NWP with other NWPs, if SWM facilities are required as part of 
the development. One commenter stated that the NWP will reduce 
incentives to locate SWM facilities in uplands. Many of those opposing 
this NWP believe that the permit only benefits developers who want to 
develop the entire upland parcel and locate the SWM facility in 
wetlands and that mitigation sequencing (i.e., avoidance, minimization, 
and compensatory mitigation) would not take place.
    The proposed NWP and the NWP general conditions contain provisions 
to help ensure that the NWP does not authorize activities in waters of 
the United States with more than minimal adverse effects on the aquatic 
environment, individually or cumulatively. The notification 
requirements will allow district engineers to review certain stormwater 
management activities on a case-by-case basis and exercise 
discretionary authority in those cases where the adverse effects on the 
aquatic environment are more than minimal. Division and district 
engineers can add regional or case-specific conditions to this NWP to 
ensure that the NWP authorizes only activities with minimal

[[Page 39326]]

adverse effects on the aquatic environment. An important provision of 
the proposed NWP is that it does not authorize the construction of new 
SWM facilities in perennial streams, which will protect habitat for 
fish and other aquatic organisms.
    Although an SWM facility can be authorized by NWP 39 as an 
attendant feature of a single and complete development project, there 
are circumstances that warrant a separate NWP for SWM facilities. For 
example, some SWM facilities may be constructed by a local government 
as part of a watershed plan, not for a particular development. SWM 
facilities may also be required for transportation projects or upland 
development activities. This NWP will not reduce incentives to locate 
SWM facilities in uplands, because the permittee is still required to 
comply with General Condition 19 and provide with the notification, a 
written statement to the District Engineer explaining why the SWM 
facility must be constructed in waters of the United States and why 
additional minimization cannot be achieved (see paragraph (d) of the 
proposed NWP). General condition 19 requires that the permittee avoid 
and minimize work in waters of the United States on-site to the maximum 
extent practicable.
    A number of commenters stated that SWM facilities should not be 
constructed in waters of the United States. One commenter said that SWM 
facilities should not be constructed in waters of the United States 
adjacent to perennial streams. Many commenters indicated that 
stormwater should be treated in uplands before it is discharged into 
waters of the United States. One commenter stated that SWM facilities 
can only increase wetland functions and values when they are 
constructed in non-wetland areas. A commenter recommended modifying the 
NWP to allow the use of wetland systems for passive treatment of 
stormwater runoff. Many state agencies said that they do not allow the 
treatment of stormwater in wetlands. One commenter stated that the use 
of the NWP in waters of the United States should be limited only to 
receiving stormwater runoff, which will not permanently change the 
waters of the United States, and proposed a \1/3\-acre limit for 
structures, such as outfalls. Another commenter stated that the NWP 
should not authorize SWM facilities in waters of the United States, 
unless the project results in enlargement and enhancement of existing 
wetlands. One commenter stated that an NWP authorizing SWM facilities 
in wetlands is contrary to EPA's 1990 guidance on wetlands and non-
point source pollution control programs and requested clarification 
regarding what constitutes ``in certain circumstances,'' as cited in 
the preamble discussion concerning the placement of SWM facilities in 
waters of the United States in the July 1, 1998, Federal Register 
notice. This commenter also objected to the proposed NWP because it 
authorizes SWM facilities in streams and said that these activities 
will result in the destruction of stream morphology and destabilize the 
stream bed, reducing water and habitat quality. One commenter stated 
that stormwater management ponds constructed in wetlands actually 
encourage a slower decomposition of toxins, and locating an SWM 
facility in wetlands creates greater potential for toxic pollution if 
the pond containment structure or fill fails or the pond is overfilled. 
A commenter recommended prohibiting the construction of stormwater 
detention facilities in waters of the United States within 150 feet of 
the ordinary high water mark.
    The construction of SWM facilities in waters of the United States 
is often necessary, and may provide more protection to the aquatic 
environment. SWM facilities located in waters of the United States are 
often more effective than SWM facilities constructed in uplands, 
because storm runoff flows to streams and wetlands, making these areas 
better able to trap sediments and pollutants than upland areas. The 
local aquatic environment benefits from more efficient SWM facilities. 
Low value wetlands and low value ephemeral and intermittent streams may 
be the best places to locate SWM facilities, to reduce adverse effects 
to higher value waters by attenuating storm flows and preventing 
pollutants from further degrading those areas. The proposed NWP 
authorizes the construction of SWM facilities in waters of the United 
States, particularly low value waters, provided that adverse effects on 
the aquatic environment are minimal. Division engineers can regionally 
condition this NWP to prohibit its use in high value waters. For those 
activities that require notification, discretionary authority will be 
exercised by district engineers on a case-by-case basis where the 
adverse effects on the aquatic environment are more than minimal. We do 
not agree that the NWP should be limited only to those projects that 
enlarge or enhance existing wetlands. In addition, we do not agree that 
the construction of stormwater management facilities should be 
prohibited in waters of the United States within 150 feet of the 
ordinary high water mark because this requirement would prevent 
district engineers from using this NWP to authorize many effective SWM 
facilities with minimal adverse effects on the aquatic environment.
    Through the notification process, district engineers will determine 
which SWM facilities can be authorized by this NWP. Locating SWM 
facilities in ephemeral and intermittent streams will help reduce 
degradation of perennial stream morphology by reducing the velocity of 
surface water flows during storm events. Adequately designed stormwater 
detention and retention ponds, particularly those ponds constructed in 
locations where they most effectively capture runoff (i.e., in 
ephemeral and intermittent stream beds), will help prevent stormwater 
flows from entering perennial streams with velocities high enough to 
erode the stream banks and downcut the stream bed. These ponds will 
also trap sediments, which will help maintain the substrate of the 
stream bed and reduce water quality degradation. Permittees are 
required to maintain authorized SWM facilities to prevent the entry of 
pollutants in the waterway if the pond fills with sediment or the pond 
containment structure deteriorates. Paragraph (c)(1) of the proposed 
NWP requires prospective permittees to submit a maintenance plan, if 
required, with the PCN. The maintenance plan will ensure that the SWM 
facility will retain its effectiveness at trapping sediments and 
pollutants and attenuating flood waters.
    Many commenters expressed concern for adverse effects to wetlands 
that may result from changing from one wetland type to another or from 
adverse effects caused by secondary impacts due to flooding, 
excavation, or drainage. One commenter stated that this NWP allows the 
replacement of a natural SWM facility with a concrete facility, thereby 
increasing the possibility of downstream flooding. A commenter 
advocated the preservation of natural landscapes for flood control 
purposes by promoting the use of non-structural alternatives for SWM. 
Some commenters said that this NWP should not authorize stream 
relocation or the construction of ponds in wetlands and that the Corps 
should not encourage other changes to natural drainage systems or 
diversions of watercourses.
    The proposed NWP authorizes the construction of SWM facilities, 
which may result in wetland conversion and the flooding, excavation, or 
draining of wetlands. Some relocation of intermittent or ephemeral 
streams may be necessary to construct the SWM

[[Page 39327]]

facility. For those activities that require notification, district 
engineers will review the proposed work to determine if the proposed 
work will result in more than minimal adverse effects on the aquatic 
environment. Division engineers can regionally condition this NWP lower 
the notification thresholds or restrict the use of the NWP to ensure 
that it authorizes only those SWM activities with minimal adverse 
effects on the aquatic environment. Although we encourage the use of 
non-structural methods for SWM, structural practices are often the only 
practicable methods, and should be authorized by NWP if they result 
only in minimal adverse effects on the aquatic environment.
    Many of the commenters supporting the proposed NWP requested that 
the Corps expand the scope of the NWP to include perennial streams and 
Section 10 waters, including tidal waters. One commenter requested that 
the NWP authorize sediment basins in perennial streams if sedimentation 
is a problem in the area. One commenter stated that outfall structures 
may need to be constructed in Section 10 waters, especially rivers. 
Another commenter requested that the Corps clarify whether the NWP 
authorizes discharges into wetlands adjacent to perennial streams. One 
commenter stated that design criteria should be included in the NWP.
    In the July 1, 1998, Federal Register notice, we proposed to limit 
this NWP to non-Section 10 waters, including wetlands. To simplify the 
scope of applicable waters for the proposed NWPs, we are proposing to 
limit this NWP to activities in non-tidal wetlands, excluding non-tidal 
wetlands adjacent to tidal waters. However, this NWP is still limited 
to Section 404 waters and does not authorize SWM activities in non-
tidal Section 10 waters. The construction of new SWM facilities in 
perennial streams is not authorized by this NWP. We believe that 
expanding the scope of applicable waters for this NWP to tidal waters 
and perennial streams would be contrary to the minimal adverse effects 
requirement of the NWPs, because such an expansion of scope would 
substantially increase the potential for more than minimal adverse 
effects on the aquatic environment, individually or cumulatively. 
Project proponents who need to construct SWM facilities in perennial 
streams, tidal waters, or Section 10 waters can request authorization 
through the individual permit process or utilize regional general 
permits, if available. This NWP authorizes discharges into wetlands 
adjacent to perennial streams, but does not authorize discharges into 
the perennial stream bed. Outfall structures associated with an SWM 
facility that must be constructed in Section 10 waters may be 
authorized by NWP 7, provided the single and complete project complies 
with General Condition 15. We do not agree that design criteria should 
be included in the NWP. Specific design criteria vary across the 
country and are more appropriately evaluated by district engineers on a 
case-by-case basis. Regional conditions can prohibit certain stormwater 
management activities from authorization by this NWP.
    Several commenters addressed jurisdictional issues related to this 
NWP. One commenter said that no permit is required for these 
activities. Several commenters stated that all references to excavation 
and other activities that do not result in a discharge of material into 
waters of the United States in accordance with the Tulloch Rule 
decision should be deleted from the NWP. A few commenters emphasized 
the need to clearly identify the Corps jurisdiction as it relates to 
stormwater retention and detention facilities. Other commenters 
questioned the need for a permit to maintain SWM facilities which were 
constructed entirely in uplands.
    The construction and maintenance of SWM facilities require a 
Section 404 permit if the activity results in a discharge of dredged or 
fill material into waters of the United States. SWM facilities require 
a Section 10 permit if they involve any work in navigable waters of the 
United States. Excavation activities in waters of the United States 
require a Section 404 permit, if those excavation activities result in 
more than incidental fallback of excavated material. District engineers 
will determine, on a case-by-case basis, if a specific SWM facility 
contains waters of the United States. If the SWM facility was 
constructed entirely in uplands, and does not expand the reach of 
waters of the United States, then that SWM facility is not a water of 
the United States (see 33 CFR Part 328.5). Maintenance of SWM 
facilities constructed entirely in uplands does not require a Section 
404 permit, provided the construction of that SWM facility did not 
expand the reach of waters of the United States.
    Proposed NWP C had a 2 acre limit for the construction of new SWM 
facilities, but no acreage limit for maintenance activities. In 
response to the July 1, 1998, Federal Register notice, commenters 
recommended acreage limits for the construction of new SWM facilities, 
which ranged from 1 to 5 acres. Several commenters supported no acreage 
limit for the maintenance of existing SWM facilities. Commenters 
recommended acreage limits of \1/3\ acre and 1 acre for maintenance 
activities. One commenter stated that the proposed 2 acre limit for 
construction was too high. One commenter asked the Corps to clarify 
whether the 2 acre limit applies to each individual facility, or 
whether it applies to the watershed. A number of commenters recommended 
limits for impacts to stream beds, ranging from no impacts to stream 
beds to a 500 linear foot limit. One commenter supported the PCN 
threshold for stream bed impacts, rather than a linear foot limitation. 
A couple of commenters stated that the 2 acre limit is too low and the 
acreage limit should be based site-specific criteria, such as the 
quality of affected waters. Another commenter recommended basing the 
acreage limit on regional conditions, with a national PCN threshold of 
\1/3\ acre. One commenter suggested that temporary impacts could result 
in adverse effects, depending on the duration of flooding, and that 
impacts due to flooding should be considered in the acreage limit of 
the NWP.
    Based on our review of these comments, we are proposing to retain 
the 2 acre limit for the construction of new SWM facilities, with no 
limit on maintenance activities provided the maintenance activity is 
conducted in accordance with an approved maintenance plan. The 2 acre 
limit applies to each single and complete project, not the watershed. 
We believe that the proposed NWP should not have a limit for activities 
resulting in the loss of intermittent stream bed; the PCN threshold of 
500 linear feet is adequate to allow district engineers to determine if 
the proposed work will result in more than minimal adverse effects on 
the aquatic environment. For activities resulting in the loss of 
ephemeral stream bed, there is no PCN threshold. Division engineers can 
regionally condition this NWP to establish limits for stream bed 
impacts or lower PCN thresholds. Division engineers can also regionally 
condition this NWP to add PCN thresholds for activities resulting in 
the loss of ephemeral stream bed.
    A simple 2 acre limit is much easier to implement than an acreage 
limit based on the quality of affected waters. A simple acreage limit 
is less confusing to the regulated public, because there are no 
standard, widely accepted methods available to establish acreage limits 
for stormwater management facilities based on the quality of affected 
waters. In areas where the 2 acre limit is too low, the Corps district 
can

[[Page 39328]]

develop regional general permits to authorize these activities. 
District engineers will determine when adverse effects due to flooding 
result in permanent, not temporary, losses of waters of the United 
States and should be counted toward the 2 acre limit for this NWP.
    Numerous comments were received regarding the PCN thresholds for 
the proposed NWP. Some commenters believe that PCNs should not be 
required for any activity authorized by this NWP. Other commenters 
recommended requiring PCNs for all activities authorized by this NWP 
because SWM facilities are public facilities built with public funds. 
Suggested PCN thresholds included \1/4\, \1/3\, and \1/2\ acre. One 
commenter recommended requiring agency coordination for all activities 
authorized by this NWP to provide an opportunity to assist in the 
planning of the facility. Recommended PCN thresholds for stream bed 
impacts ranged from 150 to 1,000 linear feet.
    The notification process is necessary to ensure that the proposed 
NWP authorizes only those activities that result in minimal adverse 
effects on the aquatic environment, individually or cumulatively. It is 
unnecessary to require PCNs for all activities authorized by this NWP, 
unless the division engineer has specific concerns for the aquatic 
environment in a particular geographic area and regionally conditions 
the NWP to lower the notification thresholds. Stormwater management 
activities resulting in the loss of less than \1/4\ acre of non-tidal 
waters of the United States, the loss of less than 500 linear feet of 
intermittent stream bed, or the loss of ephemeral stream bed are 
unlikely to result in more than minimal adverse effects on the aquatic 
environment. To be consistent in the PCN thresholds for the other 
proposed NWPs, we have lowered the PCN threshold from \1/3\ acre to \1/
4\ acre. Agency notification will be conducted for activities that 
result in the loss of greater than 1 acre of waters of the United 
States.
    We received many comments regarding maintenance requirements and 
maintenance limits for the proposed NWP. Some commenters stated that a 
permit should not be required for maintenance as long as there are no 
impacts beyond the originally approved facility. Other commenters said 
that this NWP is unnecessary because the maintenance can be authorized 
by NWP 3. Some commenters stated that maintenance is poorly defined and 
should not be authorized by this NWP. They state that maintenance 
activities can be just as destructive of wetlands as the initial 
construction of the facility. Several commenters requested a limit on 
the maintenance of SWM facilities, while some commenters recommended no 
limit to ensure that the design capacity is maintained. One commenter 
stated that a second review for maintenance of the facility is 
unnecessary because wetland impacts at the time of the original 
construction have already been considered.
    Some commenters were concerned with the requirement for submitting 
a maintenance plan as part of the notification package. A number of 
commenters asked how a prospective permittee would comply with this 
requirement for the maintenance of an SWM facility that does not have a 
maintenance plan. Other commenters asked who would approve the 
maintenance plan if State and local entities did not require such a 
plan. Many commenters requested guidance as to what information would 
be required for the maintenance plan.
    We are proposing to adopt a tiered approach when assessing the need 
for, and the amount of, maintenance at the facility. First, if a State 
or locally approved plan currently exists, that plan must be submitted 
as part of the notification package. If a plan does not exist, drawings 
of the original design capacities and design configurations should be 
submitted. Finally, if no plan and/or drawings exist, the best 
professional judgment of the Corps, with input from the manager of the 
facility, will be used to determine if the maintenance activity is 
authorized by this NWP. As for the content of the maintenance plan, if 
existing State or local requirements are in place regarding the 
development of such a plan, their standards will normally be accepted. 
If there are no such requirements, the plan should generally discuss 
the frequency and amount of maintenance which is required to ensure the 
facility functions as designed. If no plan currently exits, a new plan 
should be submitted for any requests for maintenance under this NWP.
    A number of commenters requested that the Corps add a condition to 
this NWP requiring a statement from the applicant that explains how 
losses of waters of the United States were avoided and minimized on-
site and why additional minimization cannot be achieved. Some 
commenters stated that compensatory mitigation should be required for 
all SWM facilities and some suggested that the mitigation proposal 
should be part of the PCN. One commenter said that compensatory 
mitigation should not be allowed in designated facility maintenance 
areas. Several commenters urged the Corps to reiterate that no 
compensatory mitigation is required for losses resulting only from 
maintenance excavation. Other commenters stated that compensatory 
mitigation should not be required for SWM facilities in areas that may 
provide more environmentally sensitive planning and benefits to the 
aquatic environment than placing those facilities in uplands. Other 
commenters asked whether mitigation credits can be gained through the 
use of bioengineering techniques and aquatic benches.
    We have added a provision to the proposed NWP (paragraph (d)), 
requiring the prospective permittee to submit a written statement 
explaining how avoidance and minimization, to the maximum extent 
practicable, was achieved on the project site. Paragraph (c)(3) 
requires the prospective permittee to submit, with the notification, a 
compensatory mitigation proposal to offset losses of waters of the 
United States resulting from activities authorized by this NWP. 
Maintenance activities typically do not result in losses of waters of 
the United States if they are conducted in designated maintenance 
areas. Therefore, compensatory mitigation for maintenance activities 
within a currently serviceable SWM facility will not be required in 
most circumstances. Compensatory mitigation areas within an SWM 
facility should be designated as non-maintenance areas. If maintenance 
is required in a designated non-maintenance area used for compensatory 
mitigation, then the permittee may be required to provide compensatory 
mitigation for that maintenance activity. District engineers will 
determine if compensatory mitigation is necessary to ensure that the 
authorized work results only in minimal adverse effects on the aquatic 
environment. If the SWM facility is not currently serviceable and 
requires reconstruction, compensatory mitigation may be required if the 
District Engineer determines that it is necessary to ensure that the 
adverse effects on the aquatic environment are minimal.
    Compensatory mitigation can be located within an SWM facility, 
provided it is not located in designated maintenance areas. It is at 
the discretion of the District Engineer to determine if it is 
appropriate to include compensatory mitigation (i.e., wetland 
restoration, creation, or enhancement) within a particular SWM 
facility. Designated maintenance areas include sediment forebays 
designed to capture

[[Page 39329]]

the sediment in a specific area of the SWM facility. Where the SWM 
facility provides substantial environmental benefits and/or improves 
the aquatic environment, compensatory mitigation may not be required. 
Any future maintenance of the SWM facility conducted in designated 
maintenance areas identified in the maintenance plan will not require 
additional compensatory mitigation. It is at the discretion of district 
engineers whether to allow mitigation credits to become established at 
a SWM facility constructed with bioengineering techniques and aquatic 
benches. However, since SWM facilities must be regularly maintained to 
retain their effectiveness, they should not be used to establish 
mitigation credits for permanent losses of waters of the United States.
    Many commenters recommended conditions to be added to the proposed 
NWP. One commenter suggested prohibiting discharges into fish habitat 
and requiring riparian buffers. Another commenter recommended 
prohibiting use of the NWP within 200 feet of streams or rivers that 
contain habitat for salmon. One commenter stated that intermittent 
streams provide valuable salmon habitat and should receive the same 
protection as perennial streams. One commenter requested that the NWP 
contain a condition prohibiting construction and maintenance during the 
spring and summer nesting periods of birds protected under the 
Migratory Bird Treaty Act and prohibiting work in streams during 
anadromous fish migration periods. A commenter requested a condition to 
require maintenance of base flows of streams during low flow periods to 
protect aquatic species. One commenter recommended adding a condition 
requiring the project proponent to demonstrate that environmental 
enhancement throughout the life of the project will result from the SWM 
project.
    Conditions for specific fisheries and migratory bird concerns are 
best addressed through the regional and case-specific special 
conditions. This NWP can be regionally conditioned to prohibit the 
construction of SWM facilities in intermittent streams that support 
important fisheries. General Condition 21 requires the permittee to 
maintain, to the maximum extent practicable, preconstruction downstream 
flow rates, including stream base flows. It is unnecessary to require 
the permittee to demonstrate that the SWM facility will enhance the 
aquatic environment throughout the life of the project. The purpose of 
SWM is to prevent or reduce further degradation of the aquatic 
environment, especially water quality. District engineers will review 
PCNs for certain SWM activities to determine if the proposed work will 
result in minimal adverse effects on the aquatic environment. If the 
adverse effects are more than minimal, discretionary authority will be 
exercised and an individual permit will be required.
    One commenter stated that the NWP should specifically authorize 
sediment control structures. Another commenter requested clarification 
as to whether or not this NWP authorizes in-stream sediment retention 
and detention basins. One commenter suggested prohibiting construction 
of concrete or rip rap-lined channels. A commenter asked for a 
definition for water control structures and emergency spillways and to 
delete the word ``emergency'' in the introductory paragraph of the NWP. 
One commenter recommended requiring best management practices to 
prevent downstream impacts of stormwater ponds, including retention 
facilities, such as holding and treating ``first flush'' from 
impervious surfaces.
    The proposed NWP does not authorize sediment control structures 
(e.g., silt fences and check dams) unless they are a part of an SWM 
facility. The intent of the opening paragraph of this NWP is to provide 
examples of authorized activities, not an inclusive list. For 
activities that require notification, district engineers will determine 
which SWM facilities are authorized under this NWP. Water control 
structures control the flow of water and may impound a certain volume 
of water. It is unnecessary to delete the word ``emergency'' as a 
modifier of the word ``spillways,'' because the purpose of emergency 
spillways is to provide an outlet for larger volumes of water and 
prevent an emergency situation from developing due to a large amount of 
water placing pressure on the dam, which may cause the dam to fail. 
Best management practices to prevent downstream adverse water quality 
effects of SWM ponds are best addressed through the 401 water quality 
certification.
    A few commenters requested that the Corps expand the NWP to 
authorize the construction of flood control facilities. One commenter 
requested that the NWP authorize the construction of drainage 
conveyances such as culverts, canals, and ditches, as well as dam and/
or weir construction. One commenter stated that the Corps needs to 
distinguish between SWM facilities authorized by this NWP and the flood 
control facilities authorized by NWP 31.
    SWM facilities are constructed to control stormwater quantity and 
quality. SWM facilities provide some flood control for certain storm 
events. NWP 43 can authorize the construction of certain SWM facilities 
that also control flooding during small storm events, but larger flood 
control facilities constructed in waters of the United States must be 
authorized by other NWPs, regional general permits, or individual 
permits. Drainage facilities are not authorized by this NWP, unless 
they are part of an SWM facility. NWP 31 authorizes the maintenance of 
flood control facilities, not the construction of new flood control 
facilities.
    This NWP is subject to proposed General Conditions 25, 26, and 27, 
which will substantially reduce its applicability. General Condition 25 
prohibits the use of this NWP to authorize discharges into designated 
critical resource waters and wetlands adjacent to those waters. General 
Condition 26 prohibits the use of this NWP to authorize discharges 
resulting in the loss of greater than 1 acre of impaired waters, 
including adjacent wetlands. NWP 43 activities resulting in the loss of 
1 acre or less of impaired waters, including adjacent wetlands, are 
prohibited unless prospective permittee demonstrates to the District 
Engineer that the activity will not result in further impairment of the 
waterbody. Notification to the District Engineer is required for all 
discharges into impaired waters and their adjacent wetlands. General 
Condition 27 prohibits the use of NWP 43 to authorize permanent, above-
grade fills in waters of the United States within the 100-year 
floodplain.
    In response to a PCN, district engineers can require special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, provides for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities. This NWP, proposed as NWP C in the July 1, 1998, 
Federal Register notice, is designated as NWP 43, with the proposed 
modifications discussed above.
44. Mining Activities
    During the 1996 NWP reissuance process, we proposed an NWP for 
Mining Operations. Based upon comments and information gathered during 
this process, we decided to encourage the development of regional 
general permits, rather than develop specific limits to meet the 
minimal

[[Page 39330]]

adverse effects requirement of Section 404(e). As a part of the 
initiative to replace NWP 26, the aggregate and hard rock/mineral 
mining industries provided information and proposed draft NWPs that 
they believed would satisfy the minimal adverse effect criterion. We 
evaluated that information and in the July 1, 1998, Federal Register 
notice, proposed NWP E for aggregate and hard rock/mineral mining 
activities. As a result of the comments we received in response to the 
July 1, 1998, Federal Register notice, this NWP has been substantially 
modified. Many commenters stated that the proposed NWP E was too 
complex, difficult to understand, and too confusing. A number of 
commenters expressed uncertainty about the applicable waters for the 
NWP, the limits of work, and which activities could be conducted under 
the NWP.
    General Comments: Many commenters expressed opposition to the 
proposed NWP. Numerous commenters objected to the proposed NWP because 
they believe that it authorizes activities with more than minimal 
adverse effects on the aquatic environment, especially water quality, 
aquatic habitat, fish and shellfish populations, and hydrology, as well 
as adjacent landowners. A large number of commenters stated that 
aggregate and hard rock/mineral mining activities should be subject to 
the individual permit process and public interest review. Other 
commenters said that the NWP should not be issued because it authorizes 
activities that are not similar in nature. Two commenters recommended 
that regional general permits should be developed in each state instead 
of an NWP. Several commenters objected to the proposed NWP because they 
believe it is too complex. A commenter objected to the proposed NWP 
because the commenter believes that the preamble fails to explain why a 
mining NWP is needed. A number of commenters recommended that the Corps 
issue a separate NWP for aggregate mining activities. One commenter 
suggested that the Corps issue a separate NWP for crushed stone 
operations.
    We believe that certain aggregate and hard rock/mineral mining 
activities can be authorized by NWP if that NWP is properly conditioned 
to protect the aquatic environment. The scope of this NWP has been 
reduced from the proposed NWP E published in the July 1, 1998, Federal 
Register. We have also substantially restructured the proposed NWP to 
make it easier to understand. The activities authorized by this NWP are 
similar in nature, and focus on the mining activity and support 
activities. This NWP may be suspended or revoked in certain areas, 
particularly those areas inhabited by economically important fish, such 
as salmonids. Division engineers can regionally condition this NWP to 
protect locally important aquatic resources. It is unnecessary and 
impractical to withdraw this NWP and direct our districts to develop 
regional general permits. A large number of regional general permits 
for mining activities would create confusion for the regulated public, 
especially for those companies that have mining operations across the 
country. This NWP is necessary because aggregate mining and hard rock/
mineral mining have been authorized by NWP 26 in the past. We do not 
believe it is necessary to develop separate NWPs for aggregate mining 
and crushed stone mining activities.
    Scope of waters: In the July 1, 1998, Federal Register notice, we 
structured the proposed NWP E based on the types of waters impacted by 
either aggregate or hard rock/mineral mining activities. There were 
several categories of waters in the proposed NWP. Those categories of 
waters included: lower perennial riverine systems, intermittent and 
ephemeral streams, intermittent and small perennial stream relocations, 
isolated wetlands, wetlands above the ordinary high water mark in non-
Section 10 waters, and dry washes and arroyos. Many commenters 
supported the expanded scope of waters, compared to the applicable 
waters for NWP 26. Two commenters objected to this NWP because it was 
applicable to all non-tidal waters, instead of only headwaters and 
isolated waters. One commenter stated that the July 1, 1998, Federal 
Register notice did not clearly explain why sand and gravel mining, 
crushed and broken stone mining, and hard rock/mineral mining were 
authorized in different types of waters. One commenter recommended that 
this NWP authorize mining activities only in large river systems to 
protect small streams and creeks. One commenter suggested that all of 
the types of applicable waters for NWP E should be based on a standard 
classification system, such as the Cowardin classification system, so 
that there will be more consistent implementation of the NWP. One 
commenter stated that this NWP should not authorize work in streams, 
especially those streams that support fish spawning areas.
    As a result of our review of the comments received in response to 
the July 1, 1998, Federal Register notice, we have reduced the 
applicable waters for the proposed NWP by excluding certain waters from 
this NWP. The reduced scope of waters will help ensure that the 
authorized activities will result in minimal adverse effects on the 
aquatic environment and simplify the NWP to make it easier to 
understand. We have limited the types of waters where mining activities 
can occur under this NWP to: lower perennial streams (i.e., lower 
perennial riverine subsystems as defined by the Cowardin classification 
system for wetlands and deep water habitats), isolated waters, streams 
where the average annual flow is 1 cubic foot per second or less, and 
non-tidal wetlands adjacent to headwater streams. Aggregate mining is 
not authorized in waters of the United States within 100 feet of the 
ordinary high water mark of streams where the average annual flow is 
greater than 1 cubic foot per second. This NWP does not authorize hard 
rock/mineral mining activities in streams, or in waters of the United 
States within 100 feet of the ordinary high water mark of headwater 
streams. Aggregate and hard rock/mineral mining are not authorized in 
non-tidal wetlands adjacent to streams where the average annual flow is 
greater than 5 cubic feet per second.
    There are different applicable waters for different types of mining 
activities because not all types of materials are found in the same 
waters. For example, the substrate of lower perennial riverine 
subsystems, by definition, contains mostly mud and sand. To obtain 
larger aggregates, the mining operation must go upstream to upper 
perennial streams, as well as intermittent and ephemeral streams. We do 
not believe that it is practical or necessary to restrict the proposed 
NWP only to large riverine systems. We have reduced the applicability 
of this NWP in smaller streams to ensure that the adverse effects of 
these mining activities will be minimal. Notification is required for 
all activities authorized by this NWP. If a district engineer reviews a 
PCN and determines that the proposed work will result in more than 
minimal adverse effects on the aquatic environment, then discretionary 
authority will be exercised and an individual permit will be required. 
We are not aware of a classification system that will allow district 
engineers to better control adverse effects on the aquatic environment 
and make the NWP easier to implement. For example, the Cowardin 
classification system is based on a scale that is too large for the 
purposes of this NWP. The scale of the upper perennial riverine 
subsystem is too broad to provide district engineers with the type of 
control that is necessary for this NWP. We believe that our approach is 
better because the smaller

[[Page 39331]]

scale allows us to better control impacts to the aquatic environment.
    We have reduced the applicability of the proposed NWP in streams, 
to better protect those streams that support fish spawning areas. The 
proposed NWP E authorized discharges into intermittent and ephemeral 
streams, and authorized the relocation or diversion of intermittent and 
small perennial streams. In the proposed NWP 44, aggregate mining 
activities can occur in lower perennial streams or streams where the 
average annual flow is 1 cubic foot per second or less. Intermittent 
streams with average annual flows of greater than 1 cubic foot per 
second cannot be mined for aggregates under this NWP. Hard rock/mineral 
mining is not authorized in streams.
    One commenter stated that the NWP should authorize hard rock mining 
activities in other waters of the United States, in addition to dry 
washes and arroyos. Three commenters requested that definitions of the 
terms ``dry washes'' and ``arroyos'' should be included in the NWPs. 
One commenter said that ephemeral streams, dry washes, and arroyos 
should not be included in the NWP because of the recent United States 
v. James J. Wilson, 133 F. 3d 251 (4th Cir. 1997) decision.
    We do not agree that hard rock/mineral mining activities should be 
authorized in streams because the potential for more than minimal 
adverse effects on the aquatic environment is too great. To further 
protect streams from the adverse effects of hard rock/mineral mining 
activities, we are proposing to add a condition to this NWP requiring 
that beneficiation and mineral processing cannot occur within 200 feet 
of the ordinary high water mark of any open waterbody. Since we have 
removed the terms ``dry washes'' and ``arroyos'' from the NWP, we do 
not need to include definitions of these terms. It is important to note 
that the United States v. James J. Wilson decision applies only to the 
states in the 4th Circuit (i.e., Maryland, West Virginia, Virginia, 
North Carolina, and South Carolina). Other areas of the country are not 
subject to this decision.
    Authorized Activities: One commenter stated that several paragraphs 
of NWP E appear to duplicate each other and should be combined to 
simplify the NWP. Another commenter said that the types of mining 
authorized by this NWP generally result in similar impacts and do not 
need to be distinguished between each other in the NWP. A large number 
of commenters stated that the term ``filling'' should be used where 
appropriate when describing the authorized activities and the acreage 
limits for those activities. One commenter recommended that the NWP 
clearly define what types of activities are considered to be mining 
activities, because many mining sites are managed for multiple land 
uses. This commenter stated that the NWP should not allow use of this 
NWP for the mining activity and another NWP for another activity on 
that parcel of land. One commenter recommended that the NWP include a 
condition addressing mechanized landclearing when that activity results 
in a deepening of waters of the United States instead of replacing 
those areas with dry land. One commenter stated that this NWP should be 
limited to authorizing access corridors for mining drag lines and 
prospecting activities, not the actual mining activity.
    We have removed the duplication within the proposed NWP to make it 
simpler and easier to understand. In this NWP, we use the term 
``discharges of dredged or fill material'' instead of ``filling'' 
because it is the standard terminology for the Section 404 program. 
``Filling'' is not the only activity that can result in a discharge 
into waters of the United States. In certain circumstances, excavating, 
draining, or flooding waters of the United States can be considered as 
discharges regulated under Section 404 of the Clean Water Act. On a 
case-by-case basis, district engineers will determine what constitutes 
``mining'' for the purposes of this NWP. If a tract of land is managed 
for multiple uses, district engineers must determine if each land use 
constitutes a separate single and complete project (i.e., each activity 
has independent utility from the other activities on the parcel). If an 
activity on the land tract has independent utility and constitutes a 
separate single and complete project, another NWP can be used to 
authorize that activity, if it meets the terms and conditions of that 
NWP. Mechanized landclearing that changes the use of a water of the 
United States must be calculated in the acreage loss for the mining 
activity, but we do not believe that it is necessary to add a condition 
to this NWP to address this specific situation. Limiting this NWP to 
the construction of access corridors for mining draglines and 
prospecting activities rather than the mining activity is illogical, 
because Section 404 authorization is still likely to be required for 
the mining activity itself. If an individual permit is required for the 
mining activity, that permit would authorize the construction of the 
access corridor, if it is constructed in waters of the United States.
    One commenter suggested that aggregate mining activities authorized 
by this NWP should include the mining of fill dirt, shell, and clay, 
including Fuller's earth and kaolin. Another commenter recommended that 
NWP E should be modified to authorize the mining of fill material for 
levee and embankment construction, reconstruction, and repair.
    We do not agree that clay mining should be included in the NWP, 
because it is a mining activity that is best addressed at a district 
level through regional general permits. The excavation of fill dirt 
from waters of the United States, particularly wetlands, is likely to 
result in more than minimal adverse effects on the aquatic environment, 
because fill dirt for construction, including the construction and 
repair of levees, can be easily obtained from upland areas, and 
authorizing the extraction of soil from wetlands to construct levees 
and embankments by an NWP is unwarranted. If fill material cannot be 
obtained from upland areas, then the removal of soil from waters of the 
United States to provide fill material can be authorized by another 
NWP, such as NWP 18, a regional general permit, or an individual 
permit.
    The mining of shell is also inappropriate for authorization by this 
NWP, because the potential impacts of this type of mining activity may 
be more than minimal, especially in estuarine waters where areas of 
fossil shell provide valuable habitat for fish. Proponents of shell 
mining can obtain authorization through the individual permit process 
or other available general permits.
    Two commenters objected to the exclusion of hard rock/mineral 
mining from intermittent and ephemeral streams. Two commenters objected 
to prohibiting hard rock/mineral mining activities in lower perennial 
riverine systems. Another commenter requested clarification as to which 
types of hard rock/mineral mining activities are authorized by this NWP 
and the categories of waters in which those activities can take place. 
One commenter suggested that the NWP prohibit beneficiation and mineral 
processing in waters of the United States, to minimize potential spills 
and releases of toxic substances.
    Hard rock/mineral mining activities have greater potential for more 
than minimal adverse effects on the aquatic environment than aggregate 
mining activities. There are considerable differences in the impacts 
associated with extracting and processing these

[[Page 39332]]

materials. Hard rock/mineral mining activities require processing that 
may result in discharges of chemical compounds in the water column, 
which can substantially alter water quality. Hard rock/mineral mining 
activities often require a Section 402 National Pollution Discharge 
Elimination System permit for effluent discharges associated with ore 
processing techniques. Hard rock/mineral mining is authorized only in 
isolated waters and non-tidal wetlands adjacent to headwater streams 
(i.e., streams where the average annual flow is less than 5 cubic feet 
per second). No hard rock/mineral mining is authorized in waters of the 
United States within 100 feet of ordinary high water mark of streams. 
The proposed NWP does not authorize hard rock/mineral mining, including 
place mining, in any streams, including lower perennial riverine 
systems. To protect streams and other open waters, we are proposing to 
condition this NWP to prohibit beneficiation and mineral processing 
within 200 feet of the ordinary high water mark of any open waterbody.
    One commenter stated that the NWP should not authorize discharges 
of fill material into waters of the United States for support features 
such as haul roads, crushers or other ore processors, and berms. Two 
commenters requested clarification concerning which stormwater 
management facilities can be authorized as mining support activities 
and which stormwater management facilities can be authorized under the 
new NWP for stormwater management facilities.
    Support facilities are essential components of a mining operation 
and should be authorized as part of the single and complete mining 
project. Support facilities authorized by this NWP include berms, 
access and haul roads, rail lines, dikes, road crossings, settling 
ponds and settling basins, ditches, stormwater and surface water 
management facilities, head cut prevention, sediment and erosion 
controls, and mechanized landclearing. District engineers will review 
preconstruction notifications for mining activities authorized by this 
NWP to determine if the mining activity, and any associated support 
activities in waters of the United States, will result in more than 
minimal adverse effects on the aquatic environment. Stormwater 
management facilities that are required for a mining activity can be 
authorized by this NWP as a support activity. District engineers will 
determine on a case-by-case basis which types of stormwater management 
facilities may be authorized by this NWP. Due to the proposed 
modification of General Condition 15, this NWP usually would not be 
combined with NWP 43 for stormwater management facilities, since the 
maximum acreage loss cannot exceed the acreage limit of the NWP with 
the highest specified acreage limit. Since NWP 44 has a limit of 1 acre 
for support activities, including stormwater management facilities, NWP 
43 cannot be used with NWP 44 to authorize a stormwater management 
facility that results in the loss of greater than 1 acre of waters of 
the United States.
    Several commenters objected to the provision in this NWP that 
requires measures to prevent adverse effects to groundwater resources, 
stating that protection of groundwater is the responsibility of the 
states. We agree with this comment, and have removed this provision 
from the proposed NWP.
    A large number of commenters stated that stream relocation and 
diversion activities for aggregate mining activities should be 
authorized in ephemeral and intermittent streams and small perennial 
streams. One commenter requested that the Corps clarify whether the 
phrase ``small perennial stream relocations'' refers to the size of the 
stream to be relocated or the amount of stream to be relocated. One 
commenter stated that channel relocation should not include decreasing 
the length of the stream channel. Another commenter requested that the 
Corps explain why other mining activities cannot be conducted in 
intermittent and small perennial streams, other than relocation and 
diversion. One commenter suggested that the Corps specify whether or 
not the discharge of dredged or fill material into ephemeral or 
intermittent streams is authorized by the stream relocation/diversion 
provisions of the NWP. One commenter recommended prohibiting stream 
relocation and diversion activities, as well as the construction of 
berms, from this NWP.
    Due to the potential for more than minimal adverse effects on the 
aquatic environment, especially fish habitat, we have removed stream 
relocation and diversion as a specific activity authorized by this NWP. 
For the proposed NWP, in-stream aggregate mining activities are limited 
to lower perennial streams (i.e., lower perennial riverine subsystems 
described in the Cowardin classification system) and streams where the 
average annual flow is 1 cubic foot per second or less. This NWP does 
not authorize hard rock/mineral mining activities in streams, including 
stream diversion or relocation. In stream segments where the average 
annual flow is 1 cubic foot per second or less, the stream channel may 
be excavated by the aggregate mining activity.
    Acreage Limits: In the July 1, 1998, Federal Register notice, we 
requested comments on the proposed acreage limit for this NWP. We 
proposed 2 acre and 3 acre limits for the NWP. Two commenters supported 
the 3 acre limit. Many commenters recommended the 2 acre limit. Several 
commenters stated that a 3 acre limit is too high. Two commenters 
suggested a limit of \1/4\ acre. Many commenters said that the 3 acre 
limit is too low. One commenter suggested an acreage limit of 5 acres, 
stating that mine operators are proficient at site reclamation and 
wetland construction. Several commenters recommended a 10 acre limit 
for this NWP. A large number of commenters advocated the use of a 
sliding scale to determine the acreage limit for this NWP. Many 
commenters recommended the use of a sliding scale similar to the one 
proposed for NWP B for master planned development activities.
    To ensure that this NWP authorizes only those mining activities 
that result in minimal adverse effects on the aquatic environment, we 
are proposing a 2 acre limit for a single and complete mining project. 
We do not believe that it would be practical to utilize a sliding scale 
to determine the acreage limit for this NWP, because a primary purpose 
of a sliding scale is to encourage the prospective permittee to further 
avoid and minimize losses of waters of the United States. For aggregate 
and hard rock/mineral mining activities, on-site avoidance and 
minimization is more difficult to accomplish because the miners need to 
extract materials from specific areas (i.e., where sufficient 
aggregates have accumulated or where the densest deposits of ore are 
located) and in quantities sufficient to make the mining activity 
economically feasible.
    One commenter stated that different acreage limits for different 
types of waters is too confusing and suggested a single acreage limit 
for the NWP. One commenter recommended that impacts to lower perennial 
riverine systems, isolated wetlands, and dry washes and arroyos should 
be limited to 1 acre. Another commenter suggested an average 1 acre 
limit for each type of water listed in the NWP. One commenter asked why 
the acreage limits for losses of open waters and wetlands was 2 acres 
but the loss of intermittent and ephemeral stream bed was limited to 1 
acre. Several commenters supported a higher acreage limit for 
activities in ephemeral streams. One commenter stated that the 1 acre 
limit for support

[[Page 39333]]

activities is too low for the permit to be useful.
    We are proposing a single acreage limit for this NWP (i.e., 2 acres 
for a single and complete project, including a maximum of 1 acre for 
support activities). We have also simplified the applicable waters for 
the proposed NWP. The acreage limit applies to all of the activities 
authorized by this NWP, for a single and complete project. We believe 
that the 1 acre limit for support activities is adequate. If the 
project proponent requires additional impacts for support activities, 
the mining activity may be authorized by another NWP, a regional 
general permit, or an individual permit.
    A commenter stated that the NWP should have similar acreage limits 
to the other new NWPs, because there is no justification for more 
restrictive limits. A number of commenters suggested imposing linear 
limits on stream impacts. One commenter recommended a 250 linear foot 
limit whereas another commenter recommended a 500 linear foot limit. A 
few commenters supported the lack of a linear limit for stream impacts.
    We believe that an acreage limit is more appropriate for mining 
activities because the proposed NWP substantially limits the amount of 
in-stream mining that can be authorized by this NWP. For aggregate 
mining activities in streams where the average annual flow is 1 cubic 
foot per second or less, the adjacent land will usually be mined with 
the stream bed. This is another reason to use an acreage limit instead 
of a linear foot limit. In addition, the use of acres instead of linear 
feet to determine the limit for this NWP allows consistent application 
of the NWP limits across the different categories of applicable waters. 
Aggregate mining activities in lower perennial streams are adequately 
assessed on a acreage basis since lower perennial streams tend to have 
large channels.
    One commenter stated that acreage limit calculations should be 
based solely on the direct effects of the dredging or filling 
activities, not indirect effects. One commenter said that a relocated 
stream channel which duplicates the functions and values of the 
original stream channel should not be considered a loss and should not 
be counted towards the acreage limit of the NWP.
    The acreage loss of waters of the United States that results from 
filling, excavating, draining, or flooding is used to determine whether 
the proposed work exceeds the terms and limits of the NWP (see the 
definition of ``loss of waters of the United States'' in the 
``Definitions'' section of the NWPs). This is the standard definition 
used in the NWP program. Although stream relocation and diversion 
activities no longer constitute a specific part of the proposed NWP, 
these activities may occur in aggregate mining operations in streams 
where the average annual flow is 1 cubic foot per second or less, 
because the adjacent land will usually be mined with the stream bed. 
The stream channel may be reestablished in a different location after 
the mining activity is completed. Stream relocation and diversion 
activities that fill and excavate the stream bed cause the loss of 
waters of the United States. It may take years before the relocated or 
diverted stream channel achieves similar aquatic functions to the 
original stream channel. Any stream relocation and diversion activities 
are included in the acreage loss measurement for this NWP.
    Notification Thresholds: In the proposed NWP, preconstruction 
notification (PCN) was required for all authorized activities. One 
commenter concurred with this notification threshold. Several 
commenters recommended imposing notification thresholds similar to the 
other proposed NWPs. Two commenters suggested that PCNs should be 
required for activities impacting 150 linear feet or more of stream bed 
or \1/3\ acre or greater of wetlands. One commenter proposed that PCNs 
should be required only for activities impacting 1 acre or more of 
waters of the United States. A number of commenters suggested that the 
PCN threshold for activities in dry washes and arroyos should be higher 
than for activities in other types of waters. One of these commenters 
recommended a 5 acre PCN threshold for activities in ephemeral streams, 
with agency coordination for the loss of 10 acres or greater of 
ephemeral stream bed. One commenter suggested agency notification for 
mining activities impacting greater than \1/3\ acre. Another commenter 
suggested extending the agency coordination period to 30 days to allow 
those agencies to conduct a more thorough review of potential water 
quality impacts.
    We are proposing to retain the original PCN threshold for this NWP, 
which requires preconstruction notification for all activities 
authorized by this NWP. District engineers will review proposed mining 
activities, including measures to minimize or avoid adverse effects to 
waters of the United States and reclamation plans. This PCN requirement 
is necessary to ensure that the NWP authorizes only those activities 
with minimal adverse effects on the aquatic environment, individually 
or cumulatively. Agency coordination will be conducted for mining 
activities resulting in the loss of greater than 1 acre of waters of 
the United States. Compliance with General Condition 9, including the 
proposed requirement for a water quality management plan, will help 
ensure that the authorized work will not result in more than minimal 
adverse effects on local water quality.
    Notification Requirements: In the proposed NWP E, the notification 
was required to include a description of all waters of the United 
States impacted by the project, a discussion of measures taken to 
minimize or prevent adverse effects to waters of the United States, a 
description of measures taken to comply with the conditions of the NWP, 
and a reclamation plan.
    One commenter supported the requirement that the applicant must 
submit a reclamation plan with the PCN. A couple of commenters 
recommended that the applicant should submit a statement from the 
agency approving the reclamation plan. One commenter requested that the 
Corps define the term ``reclamation plan'' and several commenters asked 
the Corps to specify what should be included in the plan. One commenter 
asked if the requirement for a reclamation plan refers to the complete 
plan for the entire mining site that may be required by law or a plan 
for restoring affected waters of the United States and providing 
compensatory mitigation for the losses authorized by the NWP. Several 
commenters stated that the requirement for a reclamation plan should be 
eliminated. A number of commenters said that the reclamation plan 
requirement is redundant with other Federal and state laws and should 
not be included in the NWP.
    The requirement for submission of a reclamation plan with the PCN 
is not intended to supersede other Federal or State requirements. The 
District Engineer will not require reclamation per se, but will review 
the reclamation plan to determine if compensatory mitigation is 
required to offset losses of waters of the United States and ensure 
that the individual or cumulative adverse effects of the mining 
activity on the aquatic environment are minimal. The prospective 
permittee may submit a statement from the Federal or State agency that 
approves the reclamation plan, with a brief description of reclamation 
plan, especially the type and quantity of aquatic habitats such as 
wetlands and streams that will be restored, enhanced, created, and/or

[[Page 39334]]

preserved for the mined land reclamation. If there are no Federal or 
State requirements for a reclamation plan for a particular mining 
activity, the applicant should state that fact in the PCN. The District 
Engineer may require compensatory mitigation for that project, to 
ensure that the adverse effects on the aquatic environment are minimal. 
If the reclamation plan required by Federal or State law adequately 
addresses compensation for losses of waters of the United States, then 
the District Engineer will not require additional compensatory 
mitigation, unless there are additional concerns for the aquatic 
environment.
    A large number of commenters stated that the reclamation plan 
requirement needs to be changed because some mining activities, such as 
in-stream dredging, do not require reclamation. In addition, these 
commenters were unsure if this requirement applies to mining activities 
outside of the Corps jurisdiction. For land-based aggregate mining, 
reclamation may be required at the end of the mining activity, but the 
mining activity may occur for many years. These commenters expressed 
concern that when a prospective permittee applies for authorization 
under NWP E, reclamation for previously authorized mining activities 
may not be completed. One commenter said that the NWP should contain 
more specific reclamation requirements. This commenter believes that 
the mining company should be required to submit a reclamation plan for 
each phase of a large mining operation, as each phase proceeds. This 
commenter also recommended that the mining site should be restored 
within a year after operations cease, if possible. One commenter stated 
that the Corps ability to deny NWP authorization based on failure to 
complete reclamation for previously authorized activities exceeds the 
Corps authority because it is not reasonably related to water quality 
or the discharge of dredged or fill material. One commenter said that a 
mining activity that may be eligible for authorization by NWP may not 
have done any reclamation, but is still in compliance with its 
reclamation plan. This commenter said that it is unreasonable to 
require the submission of a separate reclamation plan because of the 
regulatory oversight by other agencies.
    For those mining activities that do not require reclamation, the 
applicant should include a statement in the PCN that neither State nor 
Federal regulations require reclamation for the proposed mining 
activity. If there are portions of a mining activity outside of the 
Corps jurisdiction (e.g., mining of upland areas), it is unnecessary 
for the prospective permittee to submit a reclamation plan for those 
activities. Long-term single and complete mining projects may be 
authorized by this NWP, provided terms and conditions of the NWP are 
met. The applicant can submit a conceptual reclamation plan with the 
PCN or a statement describing the reclamation plan and intended 
schedule, if the reclamation will not take place until after the long-
term mining activity. The Corps can deny NWP authorization if the 
prospective permittee has not complied with the terms and conditions of 
previous Corps permits, such as requirements to restore affected waters 
of the United States.
    Conditions of the NWP: One commenter stated that the measures to 
minimize stream impacts are too vague and inadequate to protect stream 
stability and integrity. A commenter objected to this NWP, stating that 
the authorized work results in significant changes in stream morphology 
and the NWP should require specific measures to prevent those 
significant changes. Another commenter recommended modifying the 
prohibition against excavating fish spawning areas or shellfish beds to 
require avoidance of activities causing degradation of these habitats 
through excavation, filling, sedimentation caused by upstream work, or 
other harmful activities. One commenter recommended adding the phrase 
``where practicable'' in the requirement for necessary measures to 
prevent increases in stream gradient for mining activities in dry 
washes and arroyos. Another commenter stated that the conditions of 
this NWP are unenforceable, because field verification of spawning 
areas must be done by agency personnel with expertise in that area. One 
commenter stated that the use of NWP E would result in non-compliance 
with Section 402 of the Clean Water Act.
    The conditions of the proposed NWP that require measures to 
minimize stream impacts will help ensure that the aggregate mining 
activities authorized by this NWP will result in minimal adverse 
effects on the aquatic environment. The size of streams in which this 
NWP can be used has been substantially reduced, which will also protect 
the stability and integrity of streams. For example, paragraph (e) of 
the proposed NWP requires the permittee to implement measures to 
prevent increases in stream gradient and water velocities to prevent 
adverse effects to channel morphology. This requirement allows the 
aggregate miner to remove only the upper surface of the stream bed to 
extract the sand, gravel, and crushed and broken stone. Aggregate 
mining is authorized only in lower perennial streams or those stream 
segments where the average annual flow is 1 cubic foot per second or 
less. In lower perennial streams, larger amounts of sand can be removed 
without substantially altering stream gradient and water velocities 
because these streams tend to occur on land with gentler slopes. 
Paragraph (e) requires the permittee to conduct the mining activity so 
that the authorized work does not have more than minimal adverse 
effects on channel morphology downstream of the site of the in-stream 
mining activity.
    Paragraph (d) of the proposed NWP states that the authorized 
activity must not substantially alter the sediment characteristics of 
concentrated shellfish beds or fish spawning areas, either through 
discharges of dredged or fill material or sediment that was suspended 
in the water column by work upstream of the shellfish bed or fish 
spawning area. We are proposing to modify General Condition 20, 
Spawning Areas, to require that activities authorized by NWP cannot 
physically destroy important spawning areas by smothering those areas 
with suspended sediment generated upstream. In other words, an in-
stream mining activity authorized by this NWP must be conducted so that 
it does not generate a cloud of suspended sediment that will move 
downstream and smother important spawning areas.
    District engineers will rely on local knowledge, including any 
available documented locations of important spawning habitat and 
concentrated shellfish beds to ensure compliance with paragraph (d) and 
General Conditions 17 and 20. Federal and State natural resource 
agencies may have maps of these areas that district engineers can use 
during their review of PCNs for these activities. Division engineers 
can also regionally condition this NWP to restrict or prohibit its use 
in designated waterbodies that contain important fish spawning areas or 
shellfish beds. Authorization of mining activities by this NWP does not 
preclude the permittee from complying with the requirements of Section 
402 of the Clean Water Act.
    Use of this NWP with other NWPs: Many commenters supported the use 
of this NWP with other NWPs because of the acreage limits of NWP 44. 
One commenter recommended that the use of NWP E with other NWPs should 
be allowed without imposing an acreage limit.
    NWP 44 can be used with other NWPs, such as NWP 33, provided the

[[Page 39335]]

NWPs authorize a single and complete project and comply with the 
proposed modification of General Condition 15, Use of Multiple 
Nationwide Permits.
    Mitigation Requirements: Some commenters said that the compensatory 
mitigation requirements for this NWP were unclear in the July 1, 1998, 
Federal Register notice. A number of commenters suggested the NWP 
should require restoration when the mining activity is complete. A 
couple of commenters said that on-site mitigation should be preferred 
since the mining industry has demonstrated its ability to perform 
successful mitigation. A few commenters stated that requiring 
compensatory mitigation for these activities replicates State law and 
exceeds the mitigation requirements for other activities. A couple of 
commenters stated that the NWP should include a requirement that the 
permittee avoid or minimize impacts. A commenter suggested that 
mitigation plans should include monitoring and evaluation standards to 
assist agencies in evaluating the effectiveness of the mitigation. 
Three commenters stated that lands which were not previously waters of 
the United States and which develop wetland characteristics as a result 
of mining reclamation should be eligible for compensatory mitigation 
credit.
    The July 1, 1998, Federal Register notice contained a general 
statement that compensatory mitigation would normally be required for 
NWP activities that require notification to the District Engineer. For 
this NWP, compensatory mitigation may be provided through the 
reclamation of the mined site, if reclamation is required by other 
Federal or State laws. If reclamation is not required, the District 
Engineer can require compensatory mitigation to offset losses of waters 
of the United States resulting from the authorized work and ensure that 
the adverse effects on the aquatic environment are minimal. 
Compensatory mitigation can be provided through the establishment and 
maintenance of vegetated buffers adjacent to streams and other open 
waters, especially in the 100-foot wide zone where no aggregate or hard 
rock/mineral mining activities can occur (see paragraph (k) and the 
last paragraph of proposed NWP 44).
    We are proposing to add a condition to this NWP requiring the 
permittee to avoid and minimize discharges into waters of the United 
States to the maximum extent practicable and to include a statement 
detailing compliance with this condition with the PCN (see paragraph 
(c)). Compensatory mitigation requirements, including monitoring and 
evaluation standards, are at the discretion of district engineers. Mine 
operators that create wetlands in uplands as part of a reclamation plan 
can use those created wetlands as compensatory mitigation for other 
activities that result in the loss of wetlands, if those created 
wetlands are self-sustaining and the land will not be reverted to 
uplands in the future. However, it is at the discretion of the District 
Engineer to determine, on a case-by-case basis, if those areas can be 
used as compensatory mitigation.
    A couple of commenters said that mitigation requirements for 
activities in ephemeral streams should be less because these areas 
provide minimal aquatic resources. Another commenter stated that 
compensatory mitigation requirements should specify in-kind stream 
replacement. One commenter said that compensatory mitigation in excess 
of a 1:1 ratio is unfair. Another commenter stated that mitigation 
requirements should be the same as for proposed NWPs A and B. One 
commenter expressed concern that mining activities will result in 
substantial cumulative impacts, and recommended that the Corps 
encourage mining companies to create on-site mitigation banks to 
compensate for losses of waters of the United States before they occur 
as a result of the mining activity. A couple of commenters believe that 
mine reclamation results in waters with higher value than the impacted 
waters and that it is counterproductive to place restrictive conditions 
on this NWP. Two commenters suggested that the creation of vegetated 
littoral shelves should count towards satisfying mitigation 
requirements.
    Specific compensatory mitigation requirements will be determined on 
a case-by-case basis by district engineers. We do not believe that it 
is practical to require mining companies to create on-site mitigation 
banks to compensate for losses of waters of the United States before 
the mining activity is conducted. Mined land reclamation, if required, 
can address compensation for losses of waters of the United States, if 
the District Engineer determines that the reclamation adequately 
offsets losses of waters of the United States.
    Clarification of Jurisdiction: In the July 1, 1998, Federal 
Register notice, we requested comments on a position intended to 
clarify a long-standing jurisdictional debate as to what areas should 
be considered waters of the United States as a result of mining, 
processing, and reclamation activities. In the July 1, 1998, Federal 
Register notice, we proposed the following position:

    ``Water-filled depressions and pits, ponds, etc., created in any 
area not a ``water of the United States,'' as a result of mining, 
processing, and reclamation activities, shall not be considered 
``waters of the United States'' until one of the following occurs:
    (1) All construction, mining, or excavation activities, 
processing activities and reclamation activities have ceased and the 
affected site has been fully reclaimed pursuant to an approved plan 
of reclamation; or
    (2) All construction, mining, or excavation activities, 
processing activities and reclamation activities have ceased for a 
period of fifteen (15) consecutive years or the property is no 
longer zoned for mineral extraction, the same or successive 
operators are not actively mining on contiguous properties, or 
reclamation bonding, if required, is no longer in place; and the 
resulting body of water and adjacent wetlands meet the definition of 
``waters of the United States'' (33 CFR 328.3 (a)).''

    We received many comments concerning the proposed position. Many 
commenters supported the proposed position, including the 15-year term. 
One commenter recommended incorporating that text into NWP E. Another 
commenter supported the proposed position, but suggested that the text 
include a provision stating that water-filled depressions will not be 
considered waters of the United States as long as the area is actively 
mined, including reclamation activities.
    We do not believe it is necessary to incorporate the text of this 
position into the text of NWP 44. The position clearly requires that 
the mining activity must have stopped, and the reclamation completed, 
before the area can be considered a water of the United States.
    Several commenters opposed this clarification, because borrow pits 
can be idle for many years before they are used again for mining 
activities. One commenter objected to the proposed position, stating 
that it is a constitutional taking of property, especially since the 
Corps has taken the position that water-filled depressions on landfill 
caps are not waters of the United States. One commenter believes that 
the proposed position is too restrictive. Another commenter objected to 
the proposed position, stating that these water-filled depressions 
become valuable habitats and help compensate for mining damages. A 
commenter opposed this position because it contradicts the national 
goal of net wetland gains advocated in the Clean Water Action Plan. One 
commenter stated that the Corps should assert jurisdiction over areas 
subject to voluntary abandoned mine land

[[Page 39336]]

reclamation only when they are accepted by the Corps as compensatory 
mitigation for unavoidable impacts and losses caused by mining 
activities.
    The purpose of imposing a specific time period in the text of this 
position is to ensure that it is consistently applied throughout the 
country and provide certainty for the regulated public. This position 
is not contrary to the Clean Water Action Plan. It is intended to 
comply with the Administration's wetlands plan by providing fairness to 
the regulated public. By stating a specific time period, mining 
companies can anticipate when the water-filled depressions they have 
created can be considered waters of the United States, if the area 
meets the definition of ``waters of the United States'' at 33 CFR Part 
328. The development of water-filled depressions on landfill caps and 
the creation of water-filled depressions as a result of mining 
activities are completely different situations, and have substantially 
different public interest and health implications. Water-filled 
depressions on landfill caps are not waters of the United States, as 
stated elsewhere in this Federal Register notice. The repair of the 
landfill cap is necessary to reduce air and groundwater pollution. In 
contrast, water-filled depressions created by mining activities can 
develop into waters of the United States, and provide valuable 
functions, such as waterfowl habitat. Activities that create aquatic 
habitats from upland areas are not limited to compensatory mitigation 
activities.
    Two commenters said that the water-filled depressions should be 
considered waters of the United States 2 years after the mining 
operation ceases. A number of commenters recommended a 5 year period 
before those areas are considered waters of the United States. Two of 
these commenters said that a 5 year period is consistent with the 
current regulatory interpretations of ``normal circumstances.'' One 
commenter expressed concern that the 15 year period is too long, and 
would set an inappropriate precedent for the rest of the regulatory 
program. One commenter suggested that there should be no time limit.
    For the purpose of consistency in the regulatory program, we are 
proposing to change the time period from 15 years to 5 years. The 5-
year time period was chosen because a 5-year period is used by the 
Natural Resources Conservation Service to determine if an area has been 
abandoned for the purposes of making a wetland determination. If prior 
converted cropland has not been maintained for a 5 year period and 
wetland characteristics have developed, then that site is no longer 
considered prior converted cropland. Therefore, for both agricultural 
and mining activities, if the area has not been used for any of those 
purposes for 5 years or longer, it can be considered abandoned, and if 
the area has developed characteristics of waters of the United States, 
including wetlands, during that period of abandonment, the area will be 
subject to Section 404.
    One commenter was uncertain whether the proposed position is 
intended to be prospective, retroactive, or both. A commenter suggested 
modifying the definition of ``waters of the United States'' to include 
water-filled depressions created as a result of any extraction 
activities. A commenter stated that the zoning of the land, the mine 
operator, and reclamation bonding are irrelevant to the status of the 
mining pits as waters of the United States. One commenter requested 
that paragraph (1) contain the phrase ``* * * reclamation bond release 
has been obtained, if such bond exists * * *'' after the phrase ``* * * 
site has been fully reclaimed * * *.'' This commenter also recommended 
adding a definition of the word ``cease'' to the text, because there 
may be different interpretations as to when the 15-year period started. 
This commenter also stated that not all property is zoned for mining 
and this requirement may cause confusion if zoning is necessary to 
determine if an area is a water of the United States. Another commenter 
stated that paragraph (2) is difficult to understand and should be 
rewritten to make it clearer. One commenter recommended that the 15-
year time period should apply to mining sites requiring reclamation as 
well as those mining sites that do not require reclamation.
    This proposed position will take effect on the effective date of 
this NWP. If a jurisdictional determination is conducted on an area 
that was previously mined, then this position will be used to help 
determine if the area can be considered a water of the United States or 
is part of an on-going mining operation and not a water of the United 
States. This position is applicable only to mining activities, not 
other types of extraction activities. The preamble to 33 CFR Part 328.3 
in the November 13, 1986, Federal Register notice (51 FR 41206-41260) 
adequately addresses water-filled depressions created by other 
extraction activities. We do not believe it is necessary to add 
language addressing the release of the bond, because the important 
criterion is whether the site has been fully reclaimed. A definition of 
the term ``cease'' is not needed, because it is the same definition in 
common usage. The 5-year period will start when all construction, 
mining, extraction, processing, and reclamation activities have 
stopped. The zoning of the land is only one criterion that may be used 
to determine if a site will continue to be mined. The zoning 
classification is not necessary to determine if an area is a water of 
the United States. If a tract of land was previously zoned for mining, 
and that zoning classification was changed to residential, then the 
District Engineer would use that information to determine that the 
mining activity has ceased. This position applies to all mining sites, 
whether or not reclamation is required.
    One commenter stated that voluntary abandoned mined land 
reclamation and remining can facilitate abandoned mined land 
reclamation and result in water quality improvements in the watershed. 
This commenter believes that if the Corps considers artificial waters 
constructed for voluntary abandoned mined land reclamation and remining 
to be waters of the United States, it would deter voluntary reclamation 
and/or remining because of permit burdens and mitigation costs. Two 
commenters suggested that the Corps assert jurisdiction over water-
filled depressions only when they have been accepted as compensatory 
mitigation. One commenter recommended that NWP 21 contain this position 
statement.
    We do not believe that the proposed position will discourage 
voluntary abandoned mined land reclamation, especially if such 
reclamation can be used as a mitigation bank. NWP 27 can be used to 
authorize wetland enhancement, restoration, and creation activities in 
waters of the United States in areas that may have been previously 
mined. We do not agree that only areas accepted as compensatory 
mitigation should be considered waters of the United States. District 
engineers can use this position to determine if an area is a water of 
the United States in conjunction with mining activities authorized by 
NWP 21.
    Based on the comments discussed above, we are proposing to modify 
the position to make it easier to read, as follows:

    ``Water-filled depressions (e.g., pits, ponds, etc.) created in 
any area not previously considered a ``water of the United States,'' 
as a result of mining, processing, and reclamation activities, shall 
not be considered ``water a of the United States'' until one of the 
following situations occurs:
    (1) All construction, mining, excavation, processing, and 
reclamation activities have

[[Page 39337]]

ceased and the affected site has been fully reclaimed pursuant to an 
approved reclamation plan; or
    (2) The resulting body of water and adjacent wetlands meet the 
definition of ``waters of the United States'' (see 33 CFR Part 328.3 
(a)), and any one of the following criteria are met:
    (a) all construction, mining, excavation, processing, and 
reclamation activities have ceased for a period of five (5) 
consecutive years; or
    (b) the property is no longer zoned for mineral extraction; or
    (c) the same or successive operators are not actively mining on 
contiguous properties; or
    (d) reclamation bonding, if required, is no longer in place.''

The only substantive change in the position is changing the time period 
from 15 years to 5 years, as discussed above.
    Recommended Additional Conditions: Several commenters suggested 
additional conditions to incorporate into this NWP. Many of these 
suggestions are best addressed through the regional conditioning 
process, so we will only address those recommendations that have 
national applicability in this section.
    One commenter suggested that the NWP should not be used in 
watersheds with substantial historic aquatic resource losses. Another 
commenter recommended that the NWP should contain a condition 
addressing the disposal of dredged or excavated material, wastes from 
washing minerals, and resuspension of stream bed materials that may be 
contaminated. One commenter suggested prohibiting the NWP in areas 
inhabited by State-listed endangered or threatened species, species of 
special concern, or wild trout. A commenter recommended that the NWP 
contain a provision requiring zero pollutant runoff or groundwater 
contamination from the site, as well as a bond to cover expenses 
incurred by surrounding communities if the mine is abandoned. One 
commenter recommended adding a condition to the NWP requiring that the 
current mine site must be successfully reclaimed prior to receiving 
another Section 404 permit for another mining activity in the same 
stream reach, and limiting the losses within that stream reach to 2 
acres.
    Division and district engineers can condition this NWP to prohibit 
or restrict its use in areas where the individual and cumulative 
adverse effects of Section 404 activities on the aquatic environment 
may be more than minimal. A Section 402 permit, if required, should 
address discharges of wastes from washing materials and runoff from 
processing areas. District engineers can exercise discretionary 
authority to restrict or prohibit the use of this NWP to conduct mining 
activities that will result in the suspension of contaminated sediments 
in the water column. This issue can also be addressed in the water 
quality management plan required for activities authorized by this NWP 
(see General Condition 9). District engineers will review PCNs for 
proposed mining activities to determine which mining activities 
constitute separate single and complete projects with independent 
utility.
    Additional Issues: A number of commenters recommended removing all 
references to excavation from the NWP. Another commenter stated that 
the proposed NWP appears to violate the invalidation of the Tulloch 
rule. One commenter suggested that the final NWP clarify that proposed 
mining activities will be reviewed on a case-by-case basis to determine 
if there is a discharge regulated under Section 404 of the Clean Water 
Act.
    Excavation activities can result in discharges of dredged or fill 
material into waters of the United States. Many of these activities 
were regulated under Section 404 of the Clean Water Act prior to the 
implementation of the Tulloch rule in 1993. Therefore, we have not 
removed references to excavation from this NWP. District engineers will 
review PCNs to determine if the proposed mining activity requires a 
Section 404 permit.
    A number of commenters said that this NWP should contain a 
provision requiring the prospective permittee to demonstrate that the 
work complies with the National Historic Preservation Act. One of these 
commenters objected to the proposed NWP, stating that mining activities 
have resulted in the destruction of numerous archeological sites 
eligible for listing in the National Register of Historic Places.
    General Condition 12 already addresses this issue. This general 
condition requires compliance with the requirements of the National 
Historic Preservation Act prior to commencing the authorized activity.
    A number of commenters stated that the NWP 26 data collected by the 
Corps for mining activities is misleading because the data has been 
collected for only a short time, the 500 linear foot limit for filling 
or excavating stream beds in NWP 26 made many mining activities 
ineligible for NWP 26 authorization, and the Tulloch decision and 
enforcement policy has been inconsistently implemented.
    Although data concerning mining activities authorized by NWP 26 has 
been collected for only a short period of time, we believe that this 
data can be used to provide estimates of the potential losses of waters 
of the United States that may be authorized by this NWP, since the 
scope of applicable waters is more restrictive than for NWP 26 (with 
the exception of aggregate mining activities in lower perennial 
streams). In our environmental assessment for this NWP, we will 
consider additional sources of information to estimate future impacts.
    One commenter recommended that this NWP should include a definition 
of a single and complete project. Another commenter suggested that the 
term ``mining'' should be clarified, since mining in Florida refers to 
the excavated material leaving the mining site; under Florida's 
definition the extraction of material for on-site grading and filling 
would not be considered mining. One commenter recommended that the 
Corps develop a separate NWP for reclamation projects authorized under 
Title IV Abandoned Mine Land Program of the Surface Mining Control and 
Reclamation Act of 1977 or equivalent State laws.
    The term ``single and complete project'' is already defined at 33 
CFR Part 330.2(i). The District Engineer will determine if the proposed 
activity constitutes mining for the purposes of this NWP. This NWP 
authorizes reclamation activities in waters of the United States 
associated with the mining activity.
    This NWP is subject to proposed General Conditions 25, 26, and 27, 
which will substantially reduce its applicability. General Condition 25 
prohibits the use of this NWP to authorize discharges into designated 
critical resource waters and wetlands adjacent to those waters. General 
Condition 26 prohibits the use of this NWP to authorize discharges 
resulting in the loss of greater than 1 acre of impaired waters, 
including adjacent wetlands. NWP 44 activities resulting in the loss of 
1 acre or less of impaired waters, including adjacent wetlands, are 
prohibited unless prospective permittee demonstrates to the District 
Engineer that the activity will not result in further impairment of the 
waterbody. Notification to the District Engineer is required for all 
discharges into impaired waters and their adjacent wetlands. General 
Condition 27 prohibits the use of NWP 44 to authorize permanent, above-
grade fills in waters of the United States within the 100-year 
floodplain.
    The proposed NWP will be used to authorize aggregate and hard rock/
mineral mining activities in certain waters of the United States, 
including

[[Page 39338]]

wetlands. In response to a PCN, district engineers can require special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, provides for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities. Proposed NWP E is designated as NWP 44, with the 
modifications discussed above.

IV. Comments and Responses on Nationwide Permit Conditions

A. Consolidation of General Conditions and Section 404 Only Conditions
    In an effort to ensure consistent application of the conditions for 
the NWPs, we proposed in the July 1, 1998, Federal Register notice to 
consolidate the ``General Conditions'' and ``Section 404 Only'' 
conditions into one set of general conditions for the NWPs. This 
consolidation is practical because most of the Section 404 Only 
conditions apply to activities in Section 10 waters. This consolidation 
does not increase the scope of analysis for determining if a particular 
project qualifies for authorization under the NWP program. As a result 
of the number of comments we received in favor of this consolidation, 
all of the NWP conditions will be combined into one ``General 
Conditions'' section in the NWPs. The opening language of former 
Section 404 Only conditions 1, 2, 3, 4, 5, 7, and 8 (now designated as 
General Conditions 16, 17, 18, 19, 20, 22, and 23, respectively) has 
been modified to read ``activity [or activities], including structures 
and work in navigable waters of the United States and discharges of 
dredged or fill material,'' to reflect their application in Section 10 
waters. Due to the changes in the NWP general conditions discussed 
below, the numbers of some general conditions differ from the numbering 
scheme in the July 1, 1998, Federal Register notice.
B. Comments on Specific General Conditions
    In response to the July 1, 1998, Federal Register notice we 
received many comments on specific NWP general conditions. As a result 
of our review of those comments, we are proposing some changes to the 
NWP general conditions, as discussed below. Any changes made to the NWP 
general conditions will apply to all of the NWPs, including the 
existing NWPs issued in the December 13, 1996, Federal Register notice 
(61 FR 65874-65922), when the proposed new and modified NWPs become 
effective.
    4. Aquatic Life Movements: One commenter requested that we 
eliminate the word ``substantially'' from Condition 4. Another 
commenter recommended replacing the phrase ``substantially disrupt'' 
with ``more than minimally disrupt.''
    We recognize that most work in waters of the United States will 
result in some disruption of movement of those aquatic species that are 
indigenous to, or pass through, those waters. District engineers will 
determine if an NWP activity results in substantial disruption of the 
movement of aquatic organisms. The word ``substantially'' has been 
retained in this general condition. We are also proposing to add a 
sentence to this general condition to require that if culverts are 
placed in a stream as part of the authorized work, they must be 
installed so that low stream flows will continue to flow through the 
culverts.
    9. Water Quality: In the July 1, 1998, Federal Register notice, we 
proposed to modify General Condition 9 by changing its title from 
``Water Quality Certification'' to ``Water Quality'' and changing the 
text of the general condition to require a water quality management 
plan for activities authorized by existing NWPs 12, 14, 17, 18, 21, 32, 
and 40 and the new NWPs 39, 42, 43, and 44 (proposed as NWPs A, D, C, 
and E, respectively; NWP B was later withdrawn from the new and 
modified NWPs) if such a plan is not required by the State or Tribal 
401 water quality certification. The purpose of the water quality 
management plan is to ensure that the project will have minimal adverse 
effects on the aquatic environment, especially by preventing or 
reducing adverse effects to downstream water quality and aquatic 
habitat. An important part of a water quality management plan can be 
the establishment and maintenance of vegetated buffers adjacent to 
waters of the United States.
    The majority of the commenters asserted that the Corps had no 
statutory authority to impose Section 401 and Section 402 requirements 
for water quality and storm water management plans and stated that 
these requirements overlap or duplicate, and often conflict with, State 
water quality certification and National Pollutant Discharge 
Elimination System (NPDES) programs. One commenter stated that the 
Section 401 water quality certification must be issued prior to 
initiating the work under the NWP, which makes the Corps imposition of 
these additional requirements under this general condition redundant 
and unnecessary. Another commenter stated that these requirements would 
significantly add to the regulatory burden of permit applicants and 
increase the Corps workload. Several commenters stated that requiring a 
water quality management plan would increase the scope of the NWP 
program beyond the expertise of Corps regulatory personnel.
    A goal of the Clean Water Act, which provides the Corps with its 
authority to regulate discharges of dredged or fill material into 
waters of the United States, is to restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters. We believe 
that the requirement for a water quality management plan to prevent or 
reduce adverse effects to water quality as a result of work authorized 
under Section 404 of the Clean Water Act is within our statutory 
authority. However, the terms of the proposed modification of this 
general condition are not intended to replace existing State or Tribal 
Section 401 requirements, if those programs adequately address water 
quality concerns. Instead, the requirements of the general conditions 
provide the Corps the opportunity to protect or improve local open 
water quality. In states with strong water quality programs, district 
engineers will defer to State and local requirements and will not 
require water quality management plans as special conditions of NWP 
authorizations. If the 401 agency does not require adequate measures to 
protect downstream water quality, we have the authority to require 
measures, including the construction of stormwater management 
facilities or the establishment or maintenance of vegetated buffers 
adjacent to waters of the United States, that will minimize adverse 
effects to downstream water quality. If the adverse effects to local 
water quality resulting from the proposed work are minimal without the 
need for the implementation of a water quality management plan, then 
such a plan is not required. This general condition is not an absolute 
requirement because the criterion is minimal degradation, not no 
degradation. If a project proponent does not want to implement a water 
quality management plan, and the plan is necessary to ensure that the 
NWP authorizes only minimal adverse effects on the aquatic environment, 
then he or she can apply for an individual permit.
    The language of the proposed modification of this general condition 
is intended to allow flexibility and minimize the amount of information 
necessary to determine compliance with its requirements. District 
engineers will use their discretion to qualitatively

[[Page 39339]]

determine if a particular project complies with this general condition 
and will not require extensive analysis or review. Detailed studies 
will not be required. If a water quality management plan is unnecessary 
due to the nature of the work and the surrounding area, then the plan 
is not required. For example, the District Engineer may determine that 
a water quality management plan is not required for an activity in a 
watershed that is not substantially developed. If a water quality 
management plan is required by the District Engineer for a particular 
NWP authorization, it does not increase the Corps scope of analysis. 
For example, if the permit area includes an entire subdivision, the 
District Engineer will determine if a water quality management plan is 
necessary to address impacts to water quality resulting from the 
construction and use of the subdivision. However, if a Corps permit is 
required only for a small portion of the development, such as a single 
road crossing to provide access to an upland development, the water 
quality management plan will not apply to the entire project site. 
District engineers cannot require a water quality management plan for a 
poorly designed upland development. By limiting our analysis to the 
qualitative assessment of compliance with this general condition, the 
increase to the Corps workload will be minor and compliance will be 
easily assessed by Corps regulatory personnel.
    Many commenters recognized the importance of vegetated buffers and 
agreed that they should be required. One commenter stated that the 
general condition should not require the establishment of vegetated 
buffers. Another commenter stated that this general condition would 
needlessly take private property without compensation. One commenter 
stated that this condition would cause unreasonable financial burdens 
on NWP applicants and that future landowners cannot be expected to know 
if areas adjacent to waters of the United States are upland mitigation 
areas required for the NWP authorization or the proper width of the 
buffers. One commenter asked if drainage districts would be allowed to 
clear the buffer areas and to place excavated material on these areas 
during future ditch maintenance activities.
    We are proposing to modify the general condition to provide 
district engineers with the flexibility to determine whether or not the 
establishment or maintenance of a vegetated buffer adjacent to open 
waters is necessary. The requirement for a water quality management 
plan does not constitute a taking of private property. It is merely an 
NWP condition that will help ensure that the authorized activity causes 
only minimal adverse effects to water quality. This requirement still 
allows the landowner viable economic use of his or her property. If the 
District Engineer determines that a water quality management plan is 
necessary to ensure that the activities authorized by NWPs result only 
in minimal adverse effects on water quality, and the landowner or 
developer does not want to implement the water quality management plan, 
then he or she can request authorization through the individual permit 
process. NWPs are optional permits, and anyone who does not want to 
comply with the terms and limits of the NWPs can request authorization 
through either a regional general permit, if available for the proposed 
activity, or an individual permit. We disagree that the requirement for 
a water quality management plan will result in unnecessary financial 
burdens on the regulated public.
    Project-specific requirements for vegetated buffers adjacent to 
waters of the United States should be incorporated into NWP 
authorizations as special conditions, based on site conditions. 
Vegetated buffer requirements may also be regional conditions of the 
NWPs. The vegetated buffer requirements will be included in the NWP 
authorization issued to the project proponent, either as special or 
regional conditions. The NWP authorization will include a description 
of the width and composition of the vegetated buffer and may contain a 
plan of the project site showing the location and extent of those 
buffers. These documents will ensure that the permittee knows the 
location and extent of those buffers. Since the establishment and 
maintenance of vegetated buffers adjacent to waters of the United 
States can be considered as a form of out-of-kind compensatory 
mitigation for authorized losses of waters of the United States, 
district engineers may require the protection of vegetated buffers by 
conservation easements, deed restrictions, or other forms of legal 
protection.
    If a drainage district needs to periodically remove sediments from 
a waterway where vegetated buffers were established as a condition of 
an NWP authorization, and those vegetated buffers are protected by a 
conservation easement or other legal means, the drainage district must 
notify the District Engineer of its intent to remove the vegetated 
buffer to conduct the maintenance activity. The drainage district may 
be required to reestablish of the vegetated buffer upon completion of 
the maintenance work.
    One commenter recommended modifying the general condition to 
require vegetated buffers adjacent to all waters of the United States, 
not just open waters, because of the scientific support for buffers 
adjacent to wetlands and open water as essential for maintaining 
aquatic functions. One commenter requested a definition of the term 
``vegetated buffer'' and that the Corps specifically state the width 
required for the buffer zone. Two commenters suggested changing the 
term ``vegetated buffer'' to ``permanently vegetated buffer.'' Some 
commenters recommended requiring vegetated buffers to be composed of 
native species. Another commenter recommended making this general 
condition applicable to NWPs 19, 25, 33, 34, and 36. One commenter 
stated that the concept of a wetland buffer is better suited for large 
open space projects than it would be for linear road projects and 
recommended eliminating buffer requirements from road projects within 
existing right-of-ways. A commenter requested a definition of the term 
``to the maximum extent practicable'' for the vegetated buffer 
requirement. This commenter also stated that the vegetated buffer 
requirement is inconsistent with channel relocation authorized by NWP 
40 and the removal of undesirable species in NWP 27.
    The purpose of the vegetated buffer requirement in this general 
condition is to prevent more than minimal degradation of the water 
quality of streams and other open waters. For that reason, we have not 
included a requirement for vegetated buffers adjacent to wetlands. This 
does not prevent district engineers from requiring the establishment 
and maintenance of vegetated buffers adjacent to wetlands as conditions 
of NWP authorizations. The width and species composition of the 
required vegetated buffer is at the discretion of the District 
Engineer. In a previous section of this Federal Register notice, we 
recommend minimum widths for vegetated buffers, as well as the plant 
sizes and species that should be used. These recommendations are merely 
guidance; it is the District Engineer's decision as to what constitutes 
an adequate vegetated buffer for the purposes of a specific NWP 
authorization. Vegetated buffers should be as wide as possible. The 
phrase ``to the maximum extent practicable'' provides district 
engineers with flexibility. The vegetated buffer requirement is not 
inconsistent with NWPs 40 and 27, because vegetated buffers can be 
established by planting

[[Page 39340]]

appropriate species after drainage ditch or channel relocation 
activities and the removal of undesirable plant species, such as 
noxious weeds or invasive species. We have removed NWP 21 from the list 
of NWPs that may require a water quality management plan, because Title 
V of the Surface Mining Control and Reclamation Act already has a 
similar requirement.
    11. Endangered Species: In the July 1, 1998, Federal Register 
notice, we did not propose any changes to this general condition. In 
response to this Federal Register notice, one commenter requested that 
the Corps define the phrase ``in the vicinity'' and another commenter 
recommended deleting this phrase from the general condition.
    The definition of this term is at the discretion of the District 
Engineer for a particular Federally-listed endangered or threatened 
species. The area defined as the ``vicinity'' varies from species to 
species. For example, the ``vicinity'' of an endangered bird species 
will be different from the ``vicinity'' of an endangered species of 
orchid. The Standard Local Operating Procedures for Endangered Species 
established between most Corps districts and the FWS and NMFS will 
provide more effective protection of endangered and threatened species 
and their critical habitat, and can provide local definitions of the 
term ``vicinity.'' General Condition 11 contains provisions requiring 
notification for activities in designated critical habitat. We are 
proposing to modify General Condition 11 to clarify that the 
notification is required for any NWP activity proposed in designated 
critical habitat. We are proposing to add a provision to General 
Condition 13, Notification, to require the prospective permittee to 
provide the name(s) of the Federally-listed endangered or threatened 
species that may be adversely affected by the proposed work.
    12. Historic Properties: In the July 1, 1998, Federal Register 
notice, the Corps did not propose any changes to this general 
condition. Several commenters believe that General Condition 12 
adequately address the Corps responsibilities under Section 106 of the 
National Historic Preservation Act (NHPA). One commenter recommended 
that the Corps require that prospective permittees submit with the PCN 
either an inventory of historic properties prepared by a qualified 
individual, a letter from the State Historic Preservation Officer 
(SHPO) concerning potential impacts to historic properties, or some 
other evidence that demonstrates that the requirements of NHPA have 
been satisfied. One commenter requested that the notification contain a 
statement concerning potential effects to historic property. Another 
commenter stated that General Condition 12 should include a requirement 
that the permittee notify the District Engineer of the discovery of any 
artifacts or deposits that may constitute an eligible property while 
the authorized work is in progress and take steps to protect those 
potentially eligible properties until the requirements of NHPA are 
fulfilled. One commenter suggested that if the permittee avoids adverse 
effects to historic properties by incorporating those properties into 
``open space'' or greenbelts on the project site, then those historic 
properties must be protected by deed restrictions, protective 
covenants, or other legal means as a condition of the NWP 
authorization. Another commenter expressed concern as to how Tribal 
coordination is conducted for potential effects to Tribal cultural or 
historic resources.
    We believe that the current wording of General Condition 12 
adequately addresses compliance of the NWP program with NHPA. In 33 CFR 
Part 325, Appendix C, the Corps has established the procedures 
necessary to ensure compliance with Section 106 of the NHPA. This 
general condition already requires that the prospective permittee 
notify the District Engineer if the proposed work may affect historic 
properties listed in, or may be eligible for listing in, the National 
Register of Historic Places. The District Engineer will review the 
notification and conduct any necessary coordination with the SHPO to 
ensure compliance with NHPA. The prospective permittee cannot commence 
work until the requirements of NHPA have been fulfilled. If the 
permittee discovers previously unknown historic properties during the 
course of conducting the authorized work, he or she must stop work and 
notify the District Engineer of the presence of previously unknown 
historic properties. Work cannot continue under the NWP until the 
requirements of NHPA have been fulfilled.
    If the permittee avoids adverse effects to historic properties, we 
cannot require the permittee to preserve those properties in open space 
with a conservation easement or deed restriction. Tribal cultural 
resources are subject to the same requirements as other cultural and 
historic resources. The original wording of General Condition 12 will 
be retained as published in the December 13, 1996, Federal Register (61 
FR 68574-65922). We are proposing to add a provision to General 
Condition 13, Notification, to require the prospective permittee to 
state, in the PCN, which historic property may be affected by the 
proposed work or to include a vicinity map indicating the location of 
the historic property.
    13. Notification: In the July 1, 1998, Federal Register notice, we 
proposed to require notification for all of the new and modified NWPs, 
with various notification thresholds, but in general most of these NWPs 
had a PCN threshold of \1/3\ acre. We also proposed to conduct agency 
coordination for discharges authorized by proposed NWPs A, B, C, E, and 
40 that result in the loss of greater than 1 acre of waters of the 
United States. Notifications for activities that result in the loss of 
1 acre of waters of the United States or less would be subject to 
Corps-only review. In this section, we will address only those comments 
relating to the notification process; comments concerning PCN 
thresholds for specific NWPs are addressed in the preamble discussions 
for each NWP.
    Several commenters stated that one PCN threshold should be applied 
to all of the NWPs. We disagree, because one of the purposes of the PCN 
process is to provide district engineers the opportunity to review 
specific NWP activities to ensure that they will result only in minimal 
adverse effects on the aquatic environment. There is a wide range of 
activities that are authorized by the existing NWPs and the proposed 
NWPs. Each of these activities may require different PCN thresholds 
because they can have different adverse effects on the aquatic 
environment. We have attempted to make the PCN thresholds for the 
proposed NWPs as consistent as possible. Most of the proposed NWPs 
require submission of a PCN for losses of greater than \1/4\ acre of 
waters of the United States, but PCN thresholds for steam impacts vary 
for these NWPs.
    One commenter believes that notification should not be required for 
projects where the Corps accepts compensatory mitigation plans for less 
than 1 acre of wetland impact, for activities exempt under Section 
404(f)(1) of the Clean Water Act, or for the removal of accumulated 
sediments at stream crossings. Another commenter recommended that 
notification should be required for all NWP activities where the State 
has not issued an unconditional WQC. One commenter suggested that all 
activities impacting stream beds or riparian zones should require a PCN 
with agency coordination.

[[Page 39341]]

    We disagree with these recommendations. We require notification for 
NWP activities that may result in more than minimal adverse effects on 
the aquatic environment. Activities that are exempt under Section 
404(f)(1) of the Clean Water Act do not require a Section 404 permit 
and are not subject to PCN requirements. For the proposed modification 
of NWP 3, we are proposing to require notification for all removal of 
accumulated sediments in the vicinity of existing structures (see the 
preamble discussion for NWP 3). If an unconditional WQC has not been 
issued for the NWP by the Section 401 agency, the State or Tribe will 
have the opportunity to review each activity and determine if it 
complies with State or Tribal water quality standards. Notification to 
the Corps is unnecessary unless the Division Engineer regionally 
conditions the NWP to require notification. The District Engineer will 
review the PCN to determine if the proposed work complies with the 
terms of the NWP and if any compensatory mitigation is necessary to 
ensure that the authorized work results in minimal adverse effects on 
the aquatic environment.
    Several commenters addressed the 30-day PCN time period in 
paragraph (a)(3) of General Condition 13. Two commenters supported the 
30-day PCN time period for the new NWPs. One commenter recommended 
deleting the 30-day time period because the project proponent should 
not have to wait 30 days to receive an NWP authorization. One commenter 
stated that the 30-day time period is unjustified and is contrary to 
the intent of the NWP program. One commenter said that PCN time period 
should be reduced from 30 days to 15 days. Three commenters stated that 
the 30-day PCN time period is too short to conduct an adequate review 
of the proposed work. One of these commenters recommended a 60-day time 
period and another commenter suggested a 45-day time period.
    The PCN time period provides fairness to the regulated public by 
requiring the Corps to respond to PCNs in a timely manner. Due to the 
higher workloads that are expected to result from the proposed new and 
modified NWPs, we are proposing to change paragraph (a) of General 
Condition 13 by increasing the PCN review period to 45 days for a 
complete notification. The District Engineer will have 30 days from the 
PCN receipt date to request additional information that is necessary to 
make the PCN complete and begin the PCN review process. If the PCN is 
incomplete, the District Engineer can make only one request for 
additional information necessary to make the PCN complete. If the 
applicant does not supply the requested information, the District 
Engineer will not proceed with the PCN review and the applicant cannot 
assume that the project is authorized by the NWP 45 days later. If the 
applicant does not provide all of the requested information, the 
District Engineer may notify the applicant, either by letter or 
telephone, that the PCN is not complete and that the PCN review process 
will not begin until all of the requested information is furnished to 
the Corps. Upon receipt of a complete PCN, the District Engineer has 45 
days to determine if the proposed work qualifies for authorization 
under the NWP or exercise discretionary authority to require a standard 
permit. If the District Engineer does not respond to the PCN within 45 
days of receipt of a complete application, then the proposed activity 
is authorized by NWP unless the District Engineer modifies, suspends, 
or revokes the default NWP authorization in accordance with 33 CFR Part 
330.5(d)(2).
    Many commenters believe that the information requirements for PCNs 
are too extensive and confusing. They requested that the Corps provide 
a checklist to simplify the notification process. Three commenters 
requested that the requirement for submission of a delineation of 
special aquatic sites for certain NWPs be deleted from General 
Condition 13. One of these commenters specifically recommended 
excluding NWP 12 activities that are not subject to an acreage limit 
from the delineation requirement. Another commenter stated that wetland 
delineations are too costly to be required for PCNs.
    The format of General Condition 13 clearly outlines the information 
required for the notification process. Corps districts can, if they 
choose to do so, provide a checklist with their permit applications to 
help prospective permittees ensure that they have provided all the 
required information. The proposed modifications to NWP 12 require the 
submission of a delineation of special aquatic sites. We are proposing 
to add NWP 7 to the list of NWPs that require submission of 
delineations of special aquatic sites with the PCN. NWP 7 was added 
because there may be some intake or outfall maintenance activities that 
could adversely affect submerged aquatic vegetation beds.
    A few commenters believe that the prospective permittee should not 
be required to notify the National Ocean Service (NOS) for the 
construction or installation of utility lines in navigable waters and 
that this provision should be removed from General Condition 13. We 
concur with this comment and are proposing to modify NWP 12 to require 
the Corps to provide NOS with a copy of the PCN and NWP authorization, 
so that NOS can chart the utility line to protect navigation.
    We received many comments concerning interagency coordination of 
PCNs. Some commenters stated that the Corps should not consider agency 
comments for NWP activities. Other commenters suggested that agencies 
should have the opportunity to comment on every PCN. One commenter 
recommended that agency coordination should be conducted for all 
activities authorized by NWPs. Several commenters pointed out 
discrepancies between different discussions of the agency coordination 
process in the July 1, 1998, Federal Register notice. In the preamble 
discussion for the proposed modifications of General Condition 13, we 
proposed to conduct agency coordination for NWPs authorizing discharges 
resulting in the loss of greater than 1 acre of waters of the United 
States. However, in the proposed revisions General Condition 13, we 
specifically stated that agency coordination would be conducted only 
for NWPs A, B, C, E, and 40, where the loss of waters of the United 
States is greater than 1 acre and for NWPs 12, 21, 29, 33, 37, and 38, 
regardless of the acreage loss. Many commenters stated that the agency 
coordination period should be greater than 5 calendar days and some of 
these commenters said that the Corps should provide responses to agency 
comments. One commenter recommended that Tribes implementing the 
Section 401 program should be included in the agency coordination 
process. Two commenters requested that the Corps put the optional 
agency coordination process back into General Condition 13, to allow 
the Regional Administrator of EPA or the Regional Directors of FWS or 
NMFS to request agency coordination for activities authorized by 
certain NWPs.
    We are proposing to modify the agency coordination thresholds in 
paragraph (e) to require agency coordination for any NWP activity 
requiring notification to the District Engineer that results in the 
loss of greater than 1 acre of waters of the United States. Because of 
the proposed modification of NWP 40, we have removed the provision for 
coordination with the FWS for NWP 40 activities resulting in the loss 
of greater than \1/3\ acre of playas, prairie potholes, and vernal 
pools. We have not put the optional agency notification process

[[Page 39342]]

back into General Condition 13. We believe that agency coordination is 
unnecessary for NWP activities resulting in the loss of 1 acre or less 
of waters of the United States. Due to the increase complexity of the 
NWPs, we have modified the time periods for agency coordination. With 
the exception of NWP 37, these agencies will have 10 calendar days from 
receipt of the PCN to notify the District Engineer that they intend to 
provide substantive, site-specific comments within their area of 
expertise. If so notified, the District Engineer will wait an 
additional 15 calendar days before making a decision on the PCN. 
Therefore, these agencies have up to 25 days to provide comments on a 
PCN. Districts will involve any Tribes with Section 401 programs in the 
agency notification process, if the proposed activity occurs in an area 
subject to a Tribal Section 401 program.
    One commenter recommended that the mitigation requirements in 
paragraph (g) should explicitly state that compensatory mitigation must 
fully offset permanent, temporary, and secondary losses of functions, 
values, and acreage of aquatic resources to satisfy the ``no net loss'' 
goal of the Section 404 program. One commenter asked which functional 
assessment method would be required for mitigation to determine 
compliance with paragraph (g) of General Condition 13. A commenter 
requested that the Corps provide compensatory mitigation guidelines for 
permit applicants to help them better understand and comply with 
compensatory mitigation requirements. One commenter suggested that the 
Corps provide guidance for appropriate mitigation ratios. Another 
commenter asked how the requirements of paragraph (g) of this general 
condition differ from the analysis required by the Section 404(b)(1) 
Guidelines. One commenter stated that vegetated buffers should not be 
considered as compensatory mitigation. This commenter also said that in 
lieu fee programs should not be used as compensatory mitigation.
    For those NWP activities that require notification, district 
engineers will determine if the proposed compensatory mitigation 
adequately offsets losses of waters of the United States. To determine 
if the proposed compensatory mitigation is appropriate, district 
engineers will consider what is best for the local aquatic environment. 
The District Engineer is not required to utilize a formal assessment 
method. It would be inappropriate to issue national standards for 
compensatory mitigation, because of the regional differences in aquatic 
resource functions and values across the country. Nationwide permittees 
are not required to fully offset losses of aquatic resource functions, 
values, and acreage resulting from permanent, temporary, or secondary 
impacts. For the NWP program, compensatory mitigation is necessary only 
to ensure that the adverse effects of the authorized work on the 
aquatic environment are minimal, individually or cumulatively. The ``no 
net loss'' goal is not a statutory requirement of the Section 404 
program. Other Federal wetlands programs, such as the Wetland Reserve 
Program, help increase the quantity of the Nation's wetlands and 
achieve the ``no net loss'' goal. Compensatory mitigation requirements 
are established by district engineers on a case-by-case or district-
wide basis. Therefore, we will not establish national compensatory 
mitigation guidelines. Compensatory mitigation requirements are 
addressed in more detail elsewhere in this Federal Register notice. 
Vegetated buffers are an important type of out-of-kind compensatory 
mitigation that helps protect the quality of the local aquatic 
environment, especially water quality. District engineers will consider 
vegetated buffers as part of the compensatory mitigation required for 
activities authorized by Section 404 permits. In paragraph (g) of 
General Condition 13, we have specified that in lieu fee programs, 
mitigation banks, and other consolidated mitigation approaches are 
preferred methods of providing compensatory mitigation. In lieu fee 
programs are an important means of providing consolidated compensatory 
mitigation projects, especially in areas where mitigation banks are 
uncommon.
    For the NWP program, permittees are only required to avoid and 
minimize impacts on-site to the maximum extent practicable. Off-site 
alternatives analyses cannot be required for activities authorized by 
NWPs because the NWPs authorize only those activities with minimal 
adverse effects on the aquatic environment. If the adverse effects on 
the aquatic environment are more than minimal, then the District 
Engineer will exercise discretionary authority and require an 
individual permit for the proposed work. In accordance with 40 CFR Part 
230.7, each NWP is subjected to a Section 404(b)(1) Guidelines analysis 
before it is issued, but that analysis is not conducted for each 
activity authorized by the NWP.
    One commenter recommended modification of General Condition 13 to 
require, in addition to preconstruction notification, postconstruction 
notification for all NWPs. Another commenter requested modification of 
General Condition 13 to include requirements for the prospective 
permittee to apply for water quality certification (WQC), in those 
instances where WQC has been denied, once the notification process has 
been completed.
    We do not agree that postconstruction notification should be 
required for all activities authorized by NWPs. We believe that General 
Condition 9, Water Quality, adequately addresses the WQC requirements 
for the NWPs.
    14. Compliance Certification: We did not propose any changes to 
this general condition, but one commenter recommended that this general 
condition specify that the Corps will verify the certification by a 
site visit within 90 days of receipt of the certification from the 
permittee.
    We disagree with this recommendation and will not incorporate it 
into this general condition. Corps districts will review compliance 
certifications at their discretion.
    15. Use of Multiple Nationwide Permits: Although we did not propose 
any changes to this general condition, we received many general 
comments opposing the use of more than one NWP to authorize a single 
and complete project. We also received comments opposing the provisions 
of this general condition. One commenter recommended a prohibition 
against the use of more than one NWP to authorize a single and complete 
project that results in above-grade wetland fills. Another commenter 
stated that the use of multiple NWPs for a project should be 
unrestricted because of the low acreage limits of the NWPs and the 
unlikely probability that projects authorized by more than one NWP 
would result in significant adverse effects on the aquatic environment.
    We are proposing to modify General Condition 15 to prohibit the use 
of more than one NWP to authorize a single and complete project, except 
when the acreage loss of waters of the United States is less than the 
highest specified acreage limit for the NWPs used to authorize the 
activity. For example, NWP 13 may be used with NWP 39 to authorize bank 
stabilization in unvegetated tidal waters at the project site for the 
construction of a 100-acre residential subdivision that will result in 
the filling of non-tidal wetlands. In this case, the acreage loss of 
waters of the United States cannot exceed the indexed acreage limit 
under NWP 39. Since the project area is 100 acres, the maximum acreage 
loss for this

[[Page 39343]]

particular project is 2.25 acres, and includes the subdivision, 
attendant features, and bank stabilization.
    We are also proposing to modify the title of this general condition 
to more accurately describe its purpose. The previous title, ``Multiple 
Use of Nationwide Permits'' implied that the general condition 
addresses the use of an NWP more than once for a single and complete 
project. By changing the title to ``Use of Multiple Nationwide 
Permits,'' we believe that the title more accurately reflects its 
purpose, which is controlling the use of more than one NWP to authorize 
a single and complete project.
    17. Shellfish Beds: We did not propose any changes to this general 
condition, except to change it from a ``Section 404 Only'' condition to 
a general condition and include activities in Section 10 waters, as 
discussed above. During our review of the comments received in response 
to the July 1, 1998, and October 14, 1998, Federal Register notices, we 
determined that this general condition requires clarification to ensure 
that the NWPs do not authorize activities that may result in more than 
minimal adverse effects on shellfish. In the text of the general 
condition we are proposing to change the word ``production'' to 
``populations'' because the word ``production'' is too limiting and the 
condition should apply to all areas of concentrated shellfish 
populations, not just where shellfish are harvested commercially. This 
general condition was previously entitled ``Shellfish Production.'' We 
are proposing to modify the title of this general condition to 
``Shellfish Beds'' to reflect the proposed change in the general 
condition.
    18. Suitable Materials: We did not propose any changes to this 
general condition, except to include activities in Section 10 waters of 
the United States, as discussed above. One commenter requested that the 
general condition prohibit the use of asphalt, tires, and construction 
and demolition debris. Another commenter supported the current wording 
of the general condition, provided it does not authorize the use of 
fill that contains deleterious materials, such as trash. One commenter 
recommended modifying this general condition to state that materials 
used in construction must not be cumulatively toxic, even though they 
may not be toxic in the amounts discharged for the project.
    This NWP condition already contains examples of material that are 
considered unsuitable, such as trash, debris, car bodies, and asphalt. 
It is impractical to provide a comprehensive list of unsuitable 
materials. District engineers will determine on a case-by-case basis 
which materials are unsuitable. Division engineers can regionally 
condition the NWPs to prohibit the use of certain materials, if those 
materials are commonly used in a particular geographic region and are 
considered toxic. We do not believe that it is necessary to specify 
that discharged materials must not be cumulatively toxic, because the 
discharge of toxic pollutants is addressed under Section 307 of the 
Clean Water Act. We are proposing to retain this general condition as 
published in the July 1, 1998, Federal Register notice.
    19. Mitigation: In the July 1, 1998, Federal Register notice, we 
proposed to modify this former Section 404 Only condition by deleting 
the words ``* * * unless the District Engineer approves a compensation 
plan that the District Engineer determines is more beneficial to the 
environment than on-site minimization and avoidance measures.'' We also 
proposed to modify this general condition to require restoration, 
creation, enhancement, or preservation of aquatic resources to offset 
losses of functions and values of waters of the United States due to 
authorized impacts and to include the establishment of vegetated 
buffers as part of a compensatory mitigation plan.
    A few commenters stated that mitigation is defined too narrowly in 
the general condition, and should include avoidance and minimization. 
Some commenters stated that compensatory mitigation should not be 
required for activities authorized by NWPs because the adverse effects 
of those activities on the aquatic environment can only be minimal. 
Other commenters stated that compensatory mitigation should be required 
for all NWP activities that require a PCN. Some commenters said that 
compensatory mitigation should be required for all impacts to the 
aquatic environment. A few commenters stated that compensatory 
mitigation should not be used to ``buy down'' losses of waters of the 
United States authorized by NWPs to ensure that the adverse effects on 
the aquatic environment are minimal.
    The text of General Condition 19 includes all three steps of the 
mitigation process (i.e., avoidance, minimization, and compensation). 
Permittees are required to avoid and minimize impacts to the aquatic 
environment on-site to the maximum extent practicable. The 
consideration of off-site alternatives cannot be required for 
activities authorized by NWPs. For NWP activities that require 
notification to the District Engineer, compensatory mitigation may be 
required to ensure that the net adverse effects on the aquatic 
environment are minimal, individually or cumulatively. However, if the 
adverse effects on the aquatic environment are minimal, without 
compensatory mitigation, the District Engineer may determine that 
compensatory mitigation is unnecessary and authorize the activity with 
the NWP. The use of compensatory mitigation to reduce the adverse 
effects of the authorized work to the minimal level is an essential 
component of the NWP program, and included in the NWP regulations at 33 
CFR Part 330.1(e)(3).
    One commenter stated that the NWP program has become a way to avoid 
an alternatives analysis, but another commenter views the NWPs as 
similar to the individual permit process because it requires an on-site 
alternatives analysis. One commenter said that the avoidance 
requirement of this general condition is meaningless because the 
resource agencies do not have enough time to review the applicant's 
avoidance analysis in the PCN. One commenter recommended removing the 
avoidance requirement from this general condition because there are 
currently no standards for determining if the requirement has been met.
    General Condition 19 requires the consideration of on-site 
alternatives, including changes to the proposed work to avoid and 
minimize adverse effects to waters of the United States. District 
engineers will review the PCN to determine if additional avoidance and 
minimization is practicable and necessary. If the proposed work meets 
the terms and conditions of the NWP and results in minimal adverse 
effects on the aquatic environment (with or without any compensatory 
mitigation required by the District Engineer) it is not necessary to 
require additional avoidance and minimization.
    Two commenters believe that the requirement for restoration, 
creation, enhancement, or preservation of aquatic resources to offset 
authorized impacts to ensure that the adverse effects of the work are 
minimal is a major change to the NWP program and does not accurately 
reflect the concept of using compensatory mitigation to ensure that the 
adverse effects on the aquatic environment caused by activities 
authorized by NWPs are minimal. Another commenter stated that this 
requirement is problematic because it requires compensatory mitigation 
for any activity that requires a PCN even if the adverse effects of the 
activity on the aquatic environment are minimal. This commenter 
recommended changing this part of the general condition to read

[[Page 39344]]

``* * * of other aquatic resources only as necessary to offset 
authorized impacts to the extent that adverse environmental effects to 
the aquatic environment otherwise would be minimal.'' Two commenters 
objected to the inclusion of preservation as a form of compensatory 
mitigation.
    We believe that this part of the general condition accurately 
reflects 33 CFR Part 330.1(e)(3), which is the section of the NWP 
regulations that allows the District Engineer to require compensatory 
mitigation to offset losses of waters of the United States authorized 
by NWPs, to ensure that the adverse effects on the aquatic environment 
are minimal. The phrase ``at least to the extent that adverse 
environmental effects to the aquatic environment are minimal'' provides 
district engineers with the flexibility to determine that compensatory 
mitigation is unnecessary if the authorized adverse effects on the 
aquatic environment are already minimal. If no compensatory mitigation 
is necessary to reduce the adverse effects on the aquatic environment 
to the minimal level, then the District Engineer does not need to 
require compensatory mitigation. Preservation of aquatic resources is 
an important type of compensatory mitigation, because it can be used to 
augment the restoration, creation, and enhancement of aquatic habitats. 
Preservation can also be used to protect rare or high-value aquatic 
resources.
    Several commenters requested that the Corps not delete the language 
from the original version of Section 404 Only condition 4 published in 
the December 13, 1996, issue of the Federal Register. This language 
allowed the District Engineer to determine that off-site compensatory 
mitigation is more beneficial to the aquatic environment, because of 
the flexibility allowed by this wording. One commenter objected to the 
use of the term ``aquatic environment'' in the general condition and 
stated that the 1990 Memorandum of Agreement (MOA) between the Corps 
and EPA on mitigation only refers to wetlands. Two commenters 
recommended that the Corps emphasize that compensatory mitigation may 
be required for impacts to other aquatic resources, not just wetlands. 
Other commenters stated that the Corps needs to provide guidelines for 
replacement ratios, functional assessment methods, and monitoring 
requirements.
    The proposed changes to this general condition do not prohibit the 
District Engineer from considering and approving off-site compensatory 
mitigation to offset the adverse effects of the authorized work on the 
aquatic environment. Off-site and out-of-kind compensatory mitigation 
can be used to offset losses of waters of the United States, if such 
compensation is beneficial to the aquatic environment. Mitigation 
banks, in lieu fee programs, and other consolidated mitigation 
approaches are also important sources of compensatory mitigation. The 
1990 mitigation MOA applies only to the evaluation of standard Corps 
permits, not general permits such as the NWPs. With the proposed new 
and modified NWPs, we are placing more emphasis on other types of 
aquatic resources, such as streams. Vegetated buffers adjacent to open 
or flowing waters are an excellent form of compensatory mitigation to 
offset adverse effects on the aquatic environment caused by the 
activities authorized by the NWPs. Restoration of degraded streams can 
be used as compensatory mitigation for stream impacts. It is important 
to note that compensatory mitigation is not necessary for all 
activities authorized by NWPs. The District Engineer will determine, on 
a case-by-case basis, if compensatory mitigation is necessary to ensure 
that the adverse effects on the aquatic environment are minimal for 
activities authorized by NWPs. We disagree that the NWPs should contain 
guidance for replacement ratios, functional assessment methods, and 
monitoring requirements for compensatory mitigation. District engineers 
will decide the appropriateness of compensatory mitigation on a case-
by-case basis, using any replacement ratios, functional assessment 
methods, or monitoring requirements they believe are appropriate.
    Several commenters addressed the use of vegetated buffers as 
compensatory mitigation. Some commenters stated that the Corps lacks 
the legal authority to require vegetated buffers, particularly upland 
buffers, and recommended that the Corps delete the reference to 
vegetated buffers from the general condition. A commenter objected to 
use of vegetated buffers as compensatory mitigation for impacts to 
waters of the United States, particularly as a substitute for the 
restoration and creation of aquatic habitats. Another commenter 
recommended using upland vegetated buffers as compensatory mitigation 
only after the permittee has conducted a one-to-one replacement of 
aquatic habitats. One commenter recommended modifying the general 
condition to require planting the vegetated buffer with native 
vegetation. One commenter said that vegetated buffers should be 
required adjacent to all open waters. Two commenters recommended 
including specific width requirements for vegetated buffers in the 
general condition.
    Our legal authority to require vegetated buffers adjacent to waters 
of the United States is discussed in a previous section of this Federal 
Register notice. Vegetated buffers adjacent to open waters or streams 
can provide more benefits to the local aquatic environment than wetland 
creation efforts. District engineers will determine how much the 
vegetated buffer will count towards any compensatory mitigation 
requirements. We are proposing to add text to this general condition 
stating that the vegetated buffer should consist of native species. 
However, if the vegetated buffer is already inhabited by trees and 
shrubs, it should be maintained, even if some of the plant species are 
not native to the region. If the vegetated buffer is inhabited by woody 
non-native species that do not provide habitat for locally important 
aquatic species, district engineers can condition the NWP authorization 
to require the removal of those non-native species and the planting of 
beneficial native species.
    Since two general conditions address mitigation requirements for 
the NWPs, we are proposing to add a sentence General Condition 19, 
referring to the additional information concerning mitigation 
requirements in paragraph (g) of General Condition 13. We are also 
proposing to add a similar sentence to paragraph (g) of General 
Condition 13, referring to the mitigation requirements of General 
Condition 19.
    20. Spawning Areas: One commenter suggested that we remove the word 
``important'' from General Condition 20 to prohibit activities in any 
fish spawning area. Two other commenters objected to the addition of 
this word to the general condition because it does not define what an 
``important'' spawning area is and would result in subjective 
determinations by Corps personnel. Another commenter recommended that 
the word ``structures'' be added to the examples of activities that can 
physically destroy a spawning area.
    We added the word ``important'' to this general condition to limit 
the prohibition to spawning areas used by species that are harvested 
commercially for human consumption. Spawning areas used exclusively by 
other aquatic species are not subject to this general condition. We are 
proposing to retain the word ``important'' in this general condition. 
Division engineers can add regional conditions to the NWPs to prohibit 
the use of NWPs (or require

[[Page 39345]]

notification for NWP activities) in known locations of important 
spawning habitat. We do not believe it is necessary to include the 
placement of structures in this general condition as an example of an 
activity that physically destroys a spawning area because the general 
condition already clearly states that authorized activities, including 
structures in navigable waters, cannot result in the physical 
destruction of important spawning areas.
    21. Management of Water Flows: In the July 1, 1998, Federal 
Register notice, we proposed to modify this former Section 404 Only 
general condition and change the title of the condition from 
``Obstruction of High Flows'' to ``Management of High Flows.'' We 
proposed to modify this NWP to require permittees to design their 
projects to maintain, to the maximum extent practicable, 
preconstruction downstream flow conditions and reduce impacts such as 
flooding or draining, unless the primary purpose of the project is to 
impound water or reestablish drainage.
    Several commenters fully supported the proposed modification to 
this general condition. Another commenter stated that the general 
condition should also include water quality control. A number of 
commenters requested clarification of the proposed general condition. 
One commenter stated that the condition should be modified to include 
functionally related components, such as outfalls and developed flows, 
with the project. Another commenter stated that the condition should be 
clarified to allow impoundment of water for beneficial use if that is 
the primary purpose of the project. Many commenters requested 
clarification of terms used in the preamble discussion relating to this 
general condition, including ``as close as feasible'' and ``more than 
minimally flooded or dewatered.'' Other commenters asked if the Corps 
is relating the preconstruction flows to particular events, such as 50- 
or 100-year storm flows, or all flows. A commenter requested 
clarification as to whether the general condition requires on-site 
detention, if watershed detention is a better solution.
    The NWPs are already conditioned to address water quality concerns 
resulting from activities authorized by NWPs. General Condition 9 
requires that the permittee obtain a water quality certification and, 
for certain NWP activities, develop and implement a water quality 
management plan to prevent more than minimal degradation of downstream 
water quality. We do not agree that General Condition 21 requires 
modification to include outfalls and developed flows with the project 
because this condition applies to general flow patterns of waters of 
the United States in the vicinity of the project, not to any specific 
part of the project. The proposed modification of this condition 
already contains language allowing the impoundment of water, if that is 
the primary purpose of the authorized activity. The phrase ``as close 
as feasible'' as used in the preamble is synonymous with the phrase 
``to the maximum extent practicable,'' which is used throughout the 
text of the general condition. The phrase ``more than minimally flooded 
or dewatered'' used in the preamble relates to the requirement that the 
NWPs authorize only those activities with minimal adverse effects on 
the aquatic environment. District engineers will determine if any 
changes to surface water flows resulting from the authorized work 
exceeds the requirements of this general condition.
    This general condition applies to the general flow patterns of 
surface waters over the course of a year, not to any specific storm 
event. For example, a project authorized by NWP may not cause more than 
minimal increases in downstream water flows that result in downcutting 
of the stream bed and substantial increases in stream bed and bank 
erosion. This general condition does not require any particular method 
to achieve compliance with the requirements of the general condition. 
We are proposing to modify the text of the general condition to require 
the permittee to maintain, to the maximum extent practicable, surface 
water flow conditions from the site that are similar to preconstruction 
flow conditions. The text in the July 1, 1998, Federal Register notice 
required the establishment of flow rates similar to preconstruction 
conditions.
    Some commenters stated that the management of water flows is the 
responsibility of State or local agencies that regulate stormwater 
management. A number of commenters asked if the Corps or the permittee 
will be responsible for ensuring compliance with this condition, and 
what will be required in terms of design and documentation. A couple of 
commenters asked what type of hydraulic analysis will be required to 
verify compliance with this condition. Some commenters believe that the 
Corps should develop consistent standards, guidance, and training 
programs for the practicable measures that should be incorporated into 
project plans to comply with this general condition. One commenter 
requested that the Corps modify the language of the condition to state 
that project modifications that decrease water supply yield or 
substantially increase the cost of the water supply yield are not 
considered practicable for the purposes of the general condition. A 
commenter recommended modifying the condition to state that 
practicability determinations will include consideration of costs, 
benefits, and technical feasibility.
    The purpose of the proposed modification of this general condition 
is to improve protection of the aquatic environment and private 
property by preventing substantial changes to local surface water flow 
patterns, as a result of activities authorized by NWPs. If State or 
local agencies have adequate requirements to manage water flows that 
accomplish the goals of this general condition, district engineers will 
normally defer this issue to those agencies. To determine compliance 
with General Condition 21, district engineers will use discretion, 
based on general knowledge of local water flow patterns, and will not 
require a detailed hydrologic analysis or engineering study. The 
language of this general condition provides district engineers with 
flexibility to determine if a particular project complies with the 
general condition. This general condition is not an absolute 
requirement for maintaining identical preconstruction and 
postconstruction water flow patterns. In addition, it does not require 
that the project be designed or constructed to have no effect on water 
flows. The general condition requires that postconstruction water flow 
patterns are not more than minimally different from preconstruction 
water flow patterns.
    One commenter stated that the general condition should be modified 
to allow additional runoff where it can be demonstrated that the 
increased runoff can be collected by the receiving waterbody and the 
permittee has received permission from the local flood control agency 
to add this runoff to the waterbody. For the maintenance of ditches and 
channelized streams, another commenter recommended modifying this 
general condition to specify that the flow patterns in the restored 
ditch will be used to define the preconstruction flow pattern. This 
commenter said that the deteriorated ditch should not be used to 
establish the preconstruction flow pattern. A commenter requested 
modification of this general condition so that it would apply only to 
off-site areas, not the project site.

[[Page 39346]]

    If the primary purpose of the proposed work does not include 
impounding water, and the activity will increase flooding, then the 
proposed work does not comply with General Condition 21. The project 
proponent can apply for authorization through the individual permit 
process or request a regional general permit authorization, if 
applicable. The maintenance of ditches, including the maintenance of 
channelized streams used as drainage ditches, may be exempt under 
Section 404(f) and not require a Section 404 permit. General Condition 
21 does not apply to activities exempt from Section 404 permit 
requirements. Modifying this general condition to allow increases in 
downstream flows on-site, but prohibiting increases in downstream flows 
off-site, is impractical. Unless the project site is extremely large, 
it is likely that any increases in downstream water flows on the 
project site will extend to off-site areas.
    A number of commenters objected to the proposed modifications to 
this condition. Some commenters stated that the Corps failed to 
demonstrate the need for the proposed modification. A few commenters 
said that the Corps does not have the authority to require this 
condition under the Clean Water Act. Several commenters stated that the 
Corps does not possess the expertise to enforce this condition and 
should not regulate activities within floodplains. A commenter believes 
that the proposed changes to this general condition are contrary to the 
Corps goal of streamlining the regulatory process. A number of 
commenters stated that the proposed changes to this general condition 
would make most projects ineligible for NWP authorization.
    Some activities in waters of the United States result in adverse 
effects on local surface water flow patterns, including increased 
flooding upstream and downstream of the project site. The purpose of 
the proposed modifications to General Condition 21 is to require 
permittees to design and construct their projects to maintain 
preconstruction downstream flow conditions, unless the primary purpose 
of the fill is to impound water. Large changes to surface water flow 
patterns can result in substantial adverse effects on the aquatic 
environment, by destroying aquatic habitat and impairing water quality. 
Higher rates of surface runoff caused by increases in the amount of 
impervious surface in a watershed can create substantial changes in 
stream morphology, affecting the quality of aquatic habitat and species 
inhabiting the stream. Water quality will be degraded by increasing the 
amount of suspended sediment in the water column. For example, the 
construction of a commercial development, including buildings and 
parking lots, near a stream can increase storm flows to local streams, 
which can result in downcutting of the stream bed and increases in bank 
erosion, destroying aquatic habitat. The proposed modification of this 
general condition is intended to address these types of changes to 
surface water flows.
    The Clean Water Act provides the Corps with the authority to 
require this condition, because it is related to the activities 
regulated under Section 404 of the Clean Water Act. Corps personnel 
will qualitatively evaluate proposed NWP activities to determine if 
they comply with this condition. This condition does not expand the 
Corps regulatory authority to include activities in floodplains; it 
merely addresses adverse effects to surface water flows that may result 
from activities in waters of the United States. The proposed 
modification of General Condition 21 is not contrary to the Corps goal 
of streamlining the regulatory process, because it requires only a 
qualitative analysis, not a detailed hydraulic or engineering study, to 
determine compliance. The phrase ``to the maximum extent practicable'' 
is used throughout the general condition, and provides district 
engineers with the flexibility to determine if a particular project 
complies with this condition. Since this general condition is not an 
absolute requirement to maintain preconstruction flows, we do not agree 
that the requirements of this general condition will result in a 
substantial number of projects becoming ineligible for NWP 
authorization. We are proposing to modify the last sentence of this 
general condition to clarify its requirements.
    23. Waterfowl Breeding Areas: Although we did not propose any 
changes to this general condition in the July 1, 1998, Federal Register 
notice, except to consolidate it with the other general conditions, one 
commenter recommended changing the title of this condition to 
``Migratory Bird Breeding Areas'' and adding the phrase ``other 
migratory birds'' after the phrase ``migratory waterfowl.''
    We do not agree with this recommendation, because the inclusion of 
other migratory birds is outside the scope of the Corps regulatory 
authority. A goal of the Corps regulatory program is to maintain the 
quality of the aquatic environment. Including other migratory birds in 
this general condition would result in an inappropriate increase in the 
Corps scope of analysis because many migratory bird species are not 
dependent on wetlands and other waters of the United States. We are not 
proposing any changes to this general condition.
    Proposed General Condition 16, Subdivisions: In the July 1, 1998, 
Federal Register notice, we proposed a new general condition, General 
Condition 16, entitled ``Subdivisions'' to ensure that only single and 
complete projects are authorized by the proposed NWPs for residential, 
commercial, and institutional activities and master planned development 
activities (i.e., proposed NWPs A and B). A few comments were received 
in response to this proposed general condition. A commenter remarked 
that the subdivision date is arbitrary and could allow the NWPs 
affected by the proposed general condition to authorize activities with 
more than minimal adverse effects on the aquatic environment. Another 
commenter stated that subdivisions created after October 5, 1984, 
should be allowed to use proposed NWP A only once. One commenter 
recommended that single and complete projects should be determined by 
the subdivision date, not any phasing schedule for the development. 
Another commenter stated that the acreage limits for subdivisions 
should be consistent with regional EPA requirements.
    Since the proposed NWP for master planned developments was 
withdrawn in the October 14, 1998, Federal Register notice, we are 
withdrawing the proposed general condition and placing a modified 
version of the text in proposed NWP 39, since NWP 39 is the only NWP 
for which this subdivision provision is currently applicable. NWP 29 
has its own subdivision provision. The October 4, 1984, subdivision 
date is not arbitrary, but this date was chosen to be consistent with 
the subdivision provision for NWP 26. The reasons for adding a 
subdivision provision to NWP 26 were addressed in the November 22, 
1991, Federal Register notice for the reissuance of NWP 26 (see 56 FR 
59114). The October 5, 1984, date was selected because it was the date 
the 1-acre and 10-acre limits were added to NWP 26. A subdivision date 
was incorporated into NWP 26 to address the issue of single and 
complete projects, recognizing that most subdivisions are actually 
individual projects with interrelated components. To provide fairness 
to the regulated public, we will utilize the same subdivision date for 
NWP 39.
    25. Designated Critical Resource Waters: In response to the 
comments received in response to the October 14,

[[Page 39347]]

1998, Federal Register notice concerning the use of NWPs in designated 
critical resource waters, we are proposing a new NWP general condition 
that addresses this issue. The proposed general condition prohibits the 
use of NWPs 7, 12, 14, 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 
for any activity in the following critical resource waters, including 
wetlands adjacent to these waters. Activities authorized by NWPs 3, 8, 
10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and 38 can 
be conducted in these designated critical resources, including adjacent 
wetlands, provided the permittee notifies the District Engineer in 
accordance with General Condition 13 and the proposed work will result 
in minimal adverse effects on the aquatic environment. For the purposes 
of proposed General Condition 25, no additional notification is 
required for activities in designated critical resource waters and 
adjacent wetlands that are authorized by NWPs not listed in the text of 
this general condition, although notification may be required by other 
conditions.
    For the purposes of the proposed general condition, designated 
critical resource waters include: NOAA-designated marine sanctuaries, 
National Estuarine Research Reserves, National Wild and Scenic Rivers, 
critical habitat for Federally-listed threatened or endangered species, 
coral reefs, State natural heritage sites, or outstanding national 
resource waters officially designated by the state where those waters 
are located. Outstanding national resource waters and other waters 
having particular environmental or ecological significance must be 
officially designated through an official State process (e.g., adopted 
through regulatory or statutory processes, approved through State 
legislation, or designated by the Governor). In those circumstances 
where a waterbody has been designated by the State, the District 
Engineer will publish a notice advising the public that such waters 
will be added to the list of designated critical resource waters. The 
District Engineer may designate additional critical resource waters 
after notice and opportunity for public comment.
    Paragraph (a) of General Condition 25 refers to General Condition 7 
for activities in National Wild and Scenic Rivers. General Condition 25 
also states that the NWPs cannot authorize discharges in designated 
critical habitat for Federally-listed threatened or endangered species 
unless the activity complies with General Condition 11 and the U.S. 
Fish and Wildlife Service or the National Marine Fisheries Service has 
concurred in a determination of compliance with that general condition.
    The comments received in response to the October 14, 1998, Federal 
Register notice related to this new general condition are discussed in 
detail in a previous section of this Federal Register notice.
    26. Impaired Waters: As a result of the comments received in 
response to the October 14, 1998, Federal Register notice concerning 
the use of NWPs in impaired waters, we have proposed a new NWP general 
condition that restricts the use of NWPs in waterbodies that have been 
designated as impaired through the Clean Water Act Section 303(d) 
process. This proposed general condition also applies to wetlands 
adjacent to those impaired waterbodies. For the purposes of this 
general condition, ``impaired waters'' are defined as those waters of 
the United States that have been identified by States or Tribes through 
the Clean Water Act Section 303(d) process as impaired due to 
nutrients, organic enrichment resulting in low dissolved oxygen 
concentration in the water column, sedimentation and siltation, habitat 
alteration, suspended solids, flow alteration, turbidity, or the loss 
of wetlands.
    General Condition 26 is based on a presumption that discharges into 
an impaired waterbody, or wetlands adjacent to that impaired waterbody, 
will result in further impairment of the waterbody. NWPs cannot be used 
to authorize discharges of dredged or fill material that result in the 
loss of greater than 1 acre of impaired waters of the United States and 
wetlands adjacent to those impaired waters. For activities authorized 
by NWP 3, this prohibition does not apply, provided the prospective 
permittee notifies the District Engineer in accordance with General 
Condition 13 and demonstrates that the work will not result in further 
impairment of the waterbody. For discharges of dredged or fill material 
resulting in the loss of 1 acre or less of impaired waters of the 
United States, including adjacent wetlands, this presumption can be 
refuted by clear evidence that the proposed project will not further 
impair the waterbody. To refute this presumption and qualify for NWP 
authorization, the prospective permittee must submit a notification to 
the District Engineer in accordance with General Condition 13. The 
notification must contain a statement explaining how the proposed work 
will not result in further impairment of the waterbody. Any 
compensatory mitigation required to offset the losses of impaired 
waters of the United States, including adjacent wetlands, and ensure 
that the work results in minimal adverse effects on the aquatic 
environment should be should be designed to contribute to the reduction 
of sources of pollution contributing to the impairment. For example, 
the establishment and maintenance of a vegetated buffer adjacent to a 
stream impaired due to nutrients will reduce nutrient inputs to that 
stream (the functions and values of vegetated buffers are discussed in 
a previous section of this Federal Register notice). That vegetated 
buffer would be considered as compensatory mitigation for a loss of 
wetlands adjacent to that impaired stream.
    If the proposed discharge will result in the loss of greater than 
\1/4\ acre of impaired waters and adjacent wetlands, then the District 
Engineer will coordinate with the State 401 agency in accordance with 
the procedures in paragraph (e) of General Condition 13. The District 
Engineer will consider any comments provided by the 401 agency to 
determine if the proposed work, excluding mitigation, will result in 
further impairment of the waterbody.
    The comments received in response to the October 14, 1998, Federal 
Register notice are discussed in detail in an earlier section of this 
Federal Register notice.
    27. Fills Within the 100-year Floodplain: In response to the 
comments received in response to the October 14, 1998, Federal Register 
notice concerning the use of NWPs to authorize permanent, above-grade 
fills in waters of the United States within 100-year floodplains, we 
have proposed NWP General Condition 27. The comments received in 
response to the 100-year floodplain restriction proposed in the October 
14, 1998, Federal Register notice are discussed in detail in a previous 
section of this Federal Register notice.
    General Condition 27 is based on a presumption that certain NWP 
activities resulting in permanent, above-grade fills in waters of the 
United States within 100-year floodplains will cause more than minimal 
adverse effects on surface hydrology and the functions and values of 
100-year floodplains. General Condition 27 prohibits the use of NWPs 
21, 29, 39, 40, 42, 43, and 44 to authorize permanent, above-grade 
fills in waters of the United States within 100-year floodplains. For 
NWPs 12 and 14, this presumption can be refuted if the prospective 
permittee clearly demonstrates to the District Engineer that the 
proposed work and associated mitigation, not decrease the flood-holding 
capacity of the waterbody and its 100-year floodplain and the proposed

[[Page 39348]]

work will not result in more than minimal adverse effects on hydrology, 
flow regimes, or volumes of water associated with the 100-year 
floodplain. This demonstration must include proof that the Federal 
Emergency Management Agency (FEMA) or a state or local flood control 
authority through a licensed professional engineer, has approved the 
proposed project and provided a statement that the activity will not 
increase flooding or result in more than minimal adverse effects to 
floodplain hydrology or flow regimes. The other NWPs are not subject to 
the requirements of General Condition 27.
    To implement General Condition 27, FEMA's Flood Insurance Rate Maps 
(FIRMs) will be used to identify 100-year floodplains, provided those 
maps reflect the current extent of 100-year floodplains. If there are 
no FIRMs published for the project area, or if the latest FIRM does not 
represent the current 100-year floodplain, information from the 
appropriate local floodplain authority will be used to determine the 
boundaries of the 100-year floodplain. Projects located in a 100-year 
floodplain at the point in the watershed that has a drainage area of 
less than 1 square mile are not subject to General Condition 27.
    General Condition 27 prohibits the use of NWPs 21, 29, 39, 42, 43, 
and 44 to authorize permanent, above-grade fills in waters of the 
United States within 100-year floodplains. For activities authorized by 
these NWPs, the prospective permittee must notify the District Engineer 
in accordance with General Condition 13. The notification must include 
documentation that the proposed work will not be located in the 100-
year floodplain or will not result in permanent, above-grade fills in 
waters of the United States within the 100-year floodplain. Activities 
authorized by NWPs 21, 29, 39, 42, 43, and 44 that occur within 100-
year floodplains but do not result in permanent, above-grade fills in 
waters of the United States within the 100-year floodplain are not 
subject to General Condition 27. The term ``permanent above-grade 
fill'' is defined in the ``Definitions'' section of the NWPs. The 
District Engineer will make the final determination as to whether a 
project is actually located in the 100-year floodplain or whether the 
project results in permanent, above-grade fills in waters of the United 
States.
    General Condition 27 does not prohibit the use of NWPs 12 and 14 to 
authorize discharges into waters of the United States resulting in 
permanent, above-grade wetland fills in waters of the United States 
within 100-year floodplains, provided the prospective permittee clearly 
demonstrates to the District Engineer that the activity will not 
decrease flood-holding capacity and will not result in more than 
minimal modifications of hydrology, flow regime, or volume of waters 
associated with the 100-year floodplain. The prospective permittee must 
notify the District Engineer in accordance with General Condition 13 if 
the proposed work will result in permanent, above-grade wetland fills 
in waters of the United States within the 100-year floodplains. The 
notification must include documentation that clearly demonstrates that 
the project will not increase flooding or result in more than minimal 
changes to floodplain hydrology or flow regimes. This documentation 
must include proof that FEMA, or a state or local flood control 
authority through a licensed professional engineer, has approved the 
proposed project and provided a statement that the project does not 
increase flooding or cause more than minimal alterations to floodplain 
hydrology or flow regimes. Activities authorized by NWPs 12 and 14 that 
occur within 100-year floodplains but do not result in permanent, 
above-grade fills in waters of the United States within the 100-year 
floodplain are not subject to General Condition 27.

V. Comments and Responses on Nationwide Permit Definitions

General
    In the July 1, 1998, Federal Register notice, we proposed to add a 
definition section to the NWPs to promote consistency in the 
implementation of the NWPs. We requested comments on the definitions 
presented in the Federal Register notice. Approximately 45 commenters 
addressed the proposed definitions.
    One commenter stated that the Corps has replaced a simple 
measurement of 5 cubic feet per second for headwaters determinations 
for the purposes of NWP 26 with confusing terms and conditions for the 
new and modified NWPs. This commenter believes that requiring permit 
applicants to distinguish between perennial, intermittent, and 
ephemeral streams, contiguous and noncontiguous wetlands, non-tidal 
wetlands and tidal wetlands, and Section 10 and non-Section 10 waters 
is too confusing and will undermine the NWP program. One commenter 
asked if it is the intent of the Corps to expand the applicability of 
the new NWPs to non-contiguous but adjacent waters.
    We believe that the terms used with the proposed new and modified 
NWPs will promote consistency in the NWP program, make the NWP program 
easier to implement, and provide District personnel with the means to 
better assess impacts to the aquatic environment. These terms help 
Corps personnel to classify some types of aquatic resources and make 
determinations of minimal adverse effects. The three types of streams 
cited in the Federal Register notice are generally accepted stream 
types, based on the duration of water flow in the stream channel. We 
have modified the applicable waters for most of the proposed new NWPs 
to prohibit their use in non-tidal wetlands adjacent to tidal waters. 
Non-tidal and tidal wetlands have some different functions and values. 
For years, Corps personnel have had to distinguish between tidal and 
non-tidal wetlands and between Section 10 and non-Section 10 waters. 
Corps personnel have had to identify these types of waters to determine 
which type of authorization a particular project may require.
    In the July 1, 1998, Federal Register notice, we proposed 
definitions for the three different types of streams. One commenter 
suggested that the Corps provide clarification or a definition to help 
determine when a stream has sufficient flow to be considered a ``water 
of the United States.'' This commenter recommended that a stream should 
be considered a water of the United States only if it is shown as a 
perennial or intermittent stream on a United States Geological Survey 
(U.S.G.S.) quadrangle map. Two commenters stated that many perennial, 
intermittent, and ephemeral streams are perched above the water table 
and that the definitions of these stream types should be based on flow 
hydrographs measured over the course of a year, not the relationship 
between the stream bed and the water table. One commenter said that the 
different stream types cannot be differentiated in the field and asked 
whether perennial, intermittent, and ephemeral streams have 
identifiable beds and banks.
    The Corps regulations state that non-tidal waters of the United 
States, including perennial, intermittent, and ephemeral streams, are 
waters of the United States up to the ordinary high water mark (see 33 
CFR Part 328.4(c)). These three stream types typically have a bed and 
bank, but the presence of a bed and bank should not be used to identify 
streams; a gully created by erosion can also be considered to have a 
bed and bank. If a landscape feature with a bed and bank does not have 
an ordinary high water mark, it is not a water of the United States 
unless it contains jurisdictional wetlands. We do not agree that 
U.S.G.S. maps should be used to determine the limits of

[[Page 39349]]

intermittent and perennial streams. The upper reaches of streams are 
often inaccurately mapped on U.S.G.S. quadrangles. These maps typically 
do not accurately depict the location and extent of intermittent or 
ephemeral streams. They are useful for identifying perennial streams, 
but they should be used with caution. Distinguishing between these 
three stream types will often require field observations.
    Stream beds can be located above or below the water table. Influent 
streams contribute water to the groundwater because their beds are 
usually located above the water table. Groundwater provides flowing 
water to effluent streams because the beds of effluent streams are 
located below the water table. The interaction between groundwater and 
stream flows also depends on local geologic features. Perennial streams 
are mostly effluent streams, flowing even during dry periods. 
Intermittent streams can be either effluent or influent, depending on 
the time of year and local precipitation patterns. During wetter 
months, when the water table is high or at normal elevations, 
intermittent streams are usually effluent. Intermittent streams are 
also effluent during short dry periods. During substantial dry periods, 
intermittent streams are usually influent. Ephemeral streams are always 
influent, because their beds are located above the water table year 
round.
    Although the focus of the definitions of these stream types is the 
duration of flowing water over the course of a year, it is important to 
consider the source of the water flowing in the channel. We believe 
that it is appropriate to consider the source of water when classifying 
streams as ephemeral, intermittent, or perennial. However, as with any 
classification scheme for natural systems, there are exceptions. For 
example, in some mountain ranges there may be streams with flowing 
water almost year round due to snow melt. Some of these stream channels 
may receive no water from groundwater; the only source of water is 
melting snow. In these areas, stream channels with flowing water year 
round due to snow melt should be considered perennial. If flowing water 
is present in the channel for long periods of time due to snow melt, 
but water flow is not year round, those streams should be considered 
intermittent.
    Artificial sources of water should not affect determinations of 
stream types. For example, pumping water into an ephemeral stream 
channel for a long period of time should not cause that stream to be 
classified as an intermittent stream. We recognize that the definitions 
proposed in the July 1, 1998, Federal Register notice do not completely 
address all possible factors that can influence the classification of 
stream types based on duration of flow, but by basing the definitions 
of perennial, intermittent, and ephemeral streams on the contribution 
of groundwater to flow patterns, Corps district personnel can 
consistently apply these definitions in a simple and effective manner 
in most parts of the country, without the need to do extensive 
hydrology studies. District engineers will use their discretion to 
distinguish between ephemeral, intermittent, and perennial streams. 
These determinations should be based on their general knowledge of flow 
patterns in the area. District engineers can consider any additional 
information the permit applicant provides, based on actual measurements 
or modeling.
    It is also important to note that, with the exception of proposed 
NWP 43, classifying streams as perennial, intermittent, or ephemeral is 
used only to determine whether or not a PCN is required. For example, 
proposed NWP 42 requires a PCN for discharges causing the loss of 
greater than 500 linear feet of perennial or intermittent stream bed. 
NWP 43 does not authorize the construction of stormwater management 
facilities in perennial streams. District engineers can regionally 
condition the NWPs to require notification for certain stream types and 
exercise discretionary authority when a particular activity may result 
in more than minimal adverse effects on the aquatic environment.
    A commenter stated that the boundary between tidal waters and non-
tidal wetlands is not well-defined or readily discernible in some parts 
of the country and that it will be difficult to determine the precise 
landward limits of tidal influence and which NWP is applicable. Another 
commenter said that the proposed definitions of tidal and non-tidal 
wetlands appear to exclude freshwater wetlands.
    The boundary between tidal wetlands and non-tidal wetlands can be 
estimated by identifying the species of plants inhabiting the area. 
Tidal wetlands often have a different plant species composition than 
non-tidal wetlands, which may be used as an indicator of the extent of 
tidal waters. In most cases, judgement will be required to estimate the 
location of the high tide line. Wrack lines can be used to locate the 
high tide line. However, it is not our intent to require permit 
applicants to conduct land surveys or utilize tide gages to determine 
the limit of tidal waters. The definitions of tidal and non-tidal 
wetlands do not exclude freshwater wetlands. Tidal wetlands can be 
inundated by saline (i.e., marine or estuarine) water or freshwater. 
Non-tidal wetlands are mostly freshwater wetlands, but there are non-
tidal saline marshes in some parts of the country.
Specific Definitions
    The following paragraphs discuss the comments received in response 
to the July 1, 1998, Federal Register notice concerning the proposed 
definitions for the NWPs.
    Aquatic Bench: Two commenters stated that the definition of this 
term should not be limited to stormwater management facilities. They 
said that these areas are found in natural waterbodies, such as ponds 
or lakes.
    This term is defined for the purposes of NWP 43, Stormwater 
Management Facilities. It refers to a specific type of area within a 
stormwater management facility that is constructed for the purpose of 
providing a substrate in water depths shallow enough to support 
populations of emergent aquatic vegetation that may enhance the 
functions of the stormwater management facility. Although these types 
of areas can be found naturally in ponds and lakes, we would simply 
consider them to be wetlands. Aquatic benches constructed in stormwater 
management facilities may or may not be considered waters of the United 
States for the purposes of Section 404, depending on the circumstances 
in which they are found. If they are constructed wetlands intended to 
improve the quality of water retained in the stormwater management 
facility, they are not considered jurisdictional wetlands. We are 
proposing to retain this definition as originally proposed.
    Best Management Practices: No comments were received concerning 
this term. We are proposing to retain this definition as originally 
proposed.
    Channelized stream: We received several comments concerning the 
proposed definition of this term. One commenter said that not all 
stream channelization results in increases in flow rate or water 
capacity. Another commenter stated that a channelized stream has been 
manipulated to fix the channel location, not to increase conveyance, 
and that the definition should focus on the fixed nature of stream 
channels, not water flow rates. One commenter asked whether the 
proposed definition includes transportation activities that change the 
channel cross-section or other aspects of channel geometry of a stream. 
This commenter stated that construction of a road embankment may 
require filling some stream bed and moving the stream

[[Page 39350]]

channel to protect the embankment. According to this commenter, this 
work does not increase conveyance of water, but changes the channel 
geometry. This commenter wanted assurance that these types of 
activities are exempt from Section 404 permit requirements. Another 
commenter recommended that the Corps add a statement to the definition 
to clarify that stream channelization requires a Section 404 and/or 
Section 10 permit from the Corps.
    Changing the morphology of the stream channel to increase the rate 
of flow through the stream channel constitutes stream channelization. 
Relocating the stream channel is not necessarily ``stream 
channelization'' unless the relocation is intended to increase the rate 
of water flow through the stream channel. Streams can be relocated, 
with natural morphology such as meanders, with little or no changes in 
water flow rates. Stabilizing stream banks near a road crossing (either 
a bridge or culvert) is not considered stream channelization, unless 
the stream bed is armored and/or excavated for a substantial distance 
from the road crossing to increase the rate of water flow. Stream bank 
stabilization does not necessarily result in channelization, even 
though it may fix the position of the stream bed in the landscape. If 
only one bank is covered with rip rap to reduce or prevent bank 
erosion, then we do not consider that activity as stream 
channelization. However, lining the stream bed and banks with concrete 
to increase the rate of water flow through the stream channel is a 
method of stream channelization that does not necessarily change the 
location of the stream bed. For the purposes of NWP 14 and other NWPs 
that can be used to authorize road crossings, stabilizing stream banks 
near culverts or bridge abutments to prevent erosion near the road 
crossings, is not considered stream channelization. The construction of 
a road embankment by filling some of the stream and/or relocating the 
stream bed is not exempt from Section 404 permit requirements, because 
these activities are not included in Section 404(f) of the Clean Water 
Act and they involve discharges of dredged or fill material into waters 
of the United States. We do not believe it is necessary to include a 
sentence in the definition stating that a Section 404 or Section 10 
permit is required for stream channelization activities.
    One commenter requested clarification as to whether stream 
channelization, when done in conjunction with the construction of a 
road crossing, is part of the road crossing or requires separate 
authorization. Another commenter requested that the definition clarify 
whether the use of culverts to construct a road crossing results in a 
channelized stream. This commenter stated that some Corps districts 
consider culverts as channel modifications, while others do not.
    Channel modifications in the immediate vicinity of a stream 
crossing that are conducted to allow the water to flow more efficiently 
through the crossing or prevent erosion of the soil near the crossing 
are not considered stream channelization and are part of the single and 
complete road crossing project. Channel modifications outside of the 
immediate vicinity of the crossing may constitute stream 
channelization, and may require a separate authorization at the 
discretion of the District Engineer. When stream channelization is 
performed with the construction of a road crossing, both activities 
should be considered as a single and complete project, which may be 
authorized by NWPs or another form of authorization, such as a regional 
general permit or an individual permit. The installation of a culvert 
in a stream bed does not channelize the stream, provided the length and 
width of the culvert is limited to the minimum necessary to construct 
the road crossing and the amount of rip rap placed to protect the 
culvert is the minimum necessary.
    One commenter objected to the last sentence of the proposed 
definition, stating that this sentence is contrary to the Section 
404(f) exemption for drainage ditches. We concur with this comment and 
have removed the last sentence from this definition.
    In the proposed new and modified NWPs, we used different terms 
relating to stream channelization. For consistency, we will use the 
term ``stream channelization'' throughout the proposed new and modified 
NWPs. Stream channelization results from modifications to increase the 
rate of water flow through the stream channel. Placing rip rap along a 
stream bank to stabilize the bank and reduce erosion does not 
necessarily constitute stream channelization, but lining the stream bed 
and bank with concrete or rip rap to increase the rate of water flow 
through the stream channel is stream channelization.
    We are proposing to replace the term ``channelized stream'' with 
``stream channelization'' and modify the definition as discussed above.
    Contiguous wetland: We received many comments concerning the 
proposed definition of this term. Some commenters stated that the 
definition is unclear. Another commenter stated that the geographic 
scope of new NWPs is confusing and that the definition appears to 
provide inconsistent guidance describing when a non-tidal wetland is 
contiguous to tidal waters. Two commenters requested that the Corps 
utilize the term ``adjacent'' instead of ``contiguous'' to limit the 
use of the new NWPs. One commenter expressed concern that the term 
``surface waters'' would exclude wetlands that are inundated or 
saturated primarily by groundwater. This commenter recommended the 
inclusion of groundwater to establish the contiguous connection.
    One commenter requested that the Corps clarify the phrase 
``normally contiguous to the nearest open water,'' as contained in the 
proposed definition. Another commenter questioned why a wetland can act 
as a surface water connection for a contiguous wetland but a channel 
cannot, even though a stream channel contains a surface water. One 
commenter recommended that this definition should state that culverts 
and tide gates constitute a surface water connection and that the 
definition is confusing and should be field tested in different areas 
of the country. This commenter also stated that it is difficult enough 
to distinguish between tidal and non-tidal areas of a channel without 
having to worry about small tributaries or sloughs draining into the 
larger waterbody. The commenter requested that the Corps clarify the 
definition to state whether the required surface water connection has 
to be present at low, normal, or high flows or associated with a 
certain size flood event. Another commenter asked if tide gates break 
up the contiguous connection. One commenter stated that the proposed 
definition appears to be a significant change for the purpose of 
circumventing the decision in the United States Court of Appeals for 
the Fourth Circuit decision in the United States v. Wilson, 133 F. 3d 
251 (4th Cir. 1997). This commenter believes that the proposed 
definition will result in the regulation of all isolated waters and 
wetlands, regardless of the type of connection, and that the definition 
must be clarified to recognize the different connections between waters 
of the United States to determine if a particular wetland is isolated. 
The commenter also believes that the proposed definition eliminates the 
distinction between natural streams and man-made connections to waters 
of the United States.
    To increase protection of the aquatic environment, we are proposing 
to prohibit the use of most of the new

[[Page 39351]]

NWPs in non-tidal wetlands adjacent to tidal waters instead of 
prohibiting the use of those NWPs in non-tidal wetlands contiguous to 
tidal waters. Therefore, the definition of the term ``contiguous 
wetland'' has been removed from the ``Definitions'' section of the 
NWPs.
    Drainage ditch: We received a variety of comments concerning the 
proposed definition of this term. One commenter supported the proposed 
definition. Another commenter agreed that drainage ditches constructed 
in uplands are not waters of the United States. A commenter stated that 
a drainage ditch is not a stream and that all activities associated 
with drainage ditches should be exempt from all permits. A number of 
commenters stated that channelized streams are not drainage ditches and 
that the Corps should retain that part of the proposed definition. A 
commenter requested that the Corps identify methods that will be used 
to distinguish between a drainage ditch constructed in wetlands and a 
channelized stream. Two commenters opposed the exclusion of channelized 
streams in the definition and stated that the proposed definition is 
contrary to the 404(f)(1) exemption, which considers streams that are 
channelized to improve drainage to be drainage ditches. Another 
commenter stated that some drainage ditches are constructed in 
intermittent and ephemeral streams.
    We concur with the last two comments in the previous paragraph, and 
have removed the last two sentences from the proposed definition. 
Channelized streams that are maintained as drainage ditches are waters 
of the United States, but maintenance of these drainage ditches is 
exempt from Section 404 permit requirements as long as the maintenance 
activity does not exceed the original drainage ditch design and 
configuration.
    One commenter stated that the portion of the proposed definition 
that includes the phrase ``otherwise extends the ordinary high water 
line of existing waters'' is not clear and that this part of the 
proposed definition could expand the Corps jurisdiction into waters 
that have always been thought of as man-made extensions which were not 
considered by some Corps districts as jurisdictional.
    This part of the proposed definition is consistent with 33 CFR 
328.5, which states that man-made changes may affect the limits of 
waters of the United States, but ``permanent changes should not be 
presumed until the particular circumstances have been examined and 
verified by the district engineer.'' Therefore, activities that extend 
the ordinary high water mark may, at the discretion of the District 
Engineer, expand waters of the United States.
    We are proposing to modify the definition of the term ``drainage 
ditch'' as discussed above.
    Ephemeral stream: Two commenters stated that the proposed 
definition is too broad and subject to various interpretations. One of 
these commenters recommended that the Corps develop a more specific 
definition of the limits of jurisdiction, such as drainage area. One 
commenter suggested that the definition should be changed to exclude 
drainage ditches.
    Using drainage area to differentiate between stream types is not 
practical because there are many factors, in addition to drainage area, 
that influence the duration of water flow in streams channels. It is 
not appropriate to change the definition to specifically exclude 
drainage ditches, because some drainage ditches may be channelized 
streams, which are waters of the United States.
    A number of commenters disagreed that ephemeral streams are waters 
of the United States. One of these commenters requested that the Corps 
specify the circumstances under which ephemeral streams are, or are 
not, waters of the United States. One commenter requested that the 
Corps issue guidance to its districts to identify ephemeral streams and 
provide prospective permittees with maps of streams that require PCNs 
under the NWP program.
    Ephemeral streams are waters of the United States as long as an 
ordinary high water mark is present and the waterbody meets the 
criteria in 33 CFR Part 328. If there is no ordinary high water mark, 
and there are no adjacent wetlands, the area is not a water of the 
United States. The limit of non-tidal waters of the United States is 
discussed at 33 CFR Part 328.4(c). It would be too resource intensive 
to provide maps of streams that require a PCN for the purposes of the 
NWPs. Instead, districts will determine on a case-by-case basis whether 
or not a particular stream is ephemeral, intermittent, or perennial. We 
are proposing to retain the definition.
    Farm: For the purposes of the proposed modification of NWP 40, we 
proposed a definition of the term ``farm'' to help determine what 
constitutes a single and complete project. Two commenters stated that 
the proposed definition is too narrow and will add unnecessary 
complexity for farmers, because using Internal Revenue Service (IRS) 
tax criteria to identify farms is too complicated.
    Because of the changes to the modification of NWP 40, we will use 
the term ``farm tract'' instead of ``farm'' to determine what 
constitutes a single and complete project for the purposes of NWP 40. 
Farm tract determinations are not based on IRS criteria. The Farm 
Service Agency of the U.S. Department of Agriculture identifies farm 
tracts. The rationale for basing the single and complete project on 
farm tracts for NWP 40 is discussed in more detail in the preamble for 
NWP 40. In the ``Definitions'' section of the NWPs, we are proposing to 
use the Farm Service Agency's definition of the term ``farm tract,'' as 
found at 7 CFR Part 718.2, to replace the proposed definition for 
``farm.''
    Intermittent stream: We received similar comments to those received 
for the proposed definition of ``ephemeral stream,'' which were 
discussed above. A number of commenters stated that it is difficult for 
permit applicants to distinguish between intermittent and ephemeral 
streams and requested further clarification. One of these commenters 
recommended that the Corps utilize the ordinary high water mark to 
distinguish between intermittent and ephemeral streams: if an ordinary 
high water mark (OHWM) is present, the stream is intermittent; if an 
OHWM is absent, the stream is ephemeral. Two commenters recommended 
that the definition distinguish between intermittent streams and man-
made ditches. Another commenter stated that intermittent streams should 
be excluded from the NWPs because under the proposed definition, a 
swale in a pasture would qualify as a stream.
    The proposed definition is adequate to differentiate between 
intermittent and ephemeral streams. Determinations as to whether a 
particular stream is perennial, intermittent, or ephemeral will be made 
by district engineers on a case-by-case basis. These determinations 
should be based on their general knowledge of flow patterns in the 
area. District engineers will consider any additional information the 
permit applicant provides based on actual measurements or modeling. 
Using the OHWM to distinguish between ephemeral and intermittent 
streams would be contrary to 33 CFR Part 328. The limit of jurisdiction 
for intermittent and ephemeral streams is the OHWM. If no OHWM is 
present, then that channel is not a water of the United States. We do 
not agree that it is necessary to distinguish between intermittent 
streams and man-made ditches. An intermittent stream may have been 
channelized to improve local drainage. Man-made ditches can be 
constructed in wetlands and other waters of the United

[[Page 39352]]

States, such as perennial and intermittent streams, as well as uplands. 
Man-made ditches constructed in waters of the United States are still 
considered waters of the United States. If a swale possess an OHWM, it 
would be considered a water of the United States, if it meets the 
criteria in 33 CFR Part 328. If a swale lacks an OHWM, but possess 
wetland hydrology, hydric soils, and a hydrophytic plant community, it 
may be considered a jurisdictional wetland, unless the swale was 
constructed in uplands and has not been abandoned. A swale that lacks 
an OHWM or does not exhibit wetland characteristics is not a water of 
the United States.
    Another commenter requested further clarification to address 
situations where there is extensive groundwater pumping for crop 
irrigation. Except in extremely wet years, this activity causes some 
streams to dry up entirely; without groundwater pumping for irrigation, 
many of these streams would have flowing water during most of the year 
or year round.
    Adjacent land use changes can affect water flow patterns of 
streams. Removal of large amounts of groundwater can decrease the 
duration of water flow through the stream channel over the course of a 
year. District engineers should base their stream classification 
determinations on normal circumstances and whether or not the region is 
experiencing normal rainfall patterns. For example, if the stream has 
flowing water for only part of a typical year due to normal pumping of 
groundwater for irrigation or domestic uses, then that stream should be 
classified as ``intermittent,'' even though it may have been a 
perennial stream prior to the introduction of the activities that 
changed the flow pattern. We are proposing to retain this definition.
    Loss of waters of the United States: A number of commenters 
objected to the proposed definition because it includes excavation. 
These commenters cited the recent decisions by the United States 
District Court for the District of Columbia in American Mining Congress 
v. United States Army Corps of Engineers and the United States Court of 
Appeals for the District of Columbia Circuit in National Mining 
Association et al. v. U.S. Army Corps of Engineers. In these decisions, 
the District Court overturned the Corps and EPA's revisions to the 
definition of ``discharge of dredged material,'' which were promulgated 
on August 25, 1993 (see 58 FR 45008) and the Court of Appeals affirmed 
the District Court's decision. These commenters said that the 
definition should not include excavation. Three commenters asserted 
that the definition should not include, in addition to excavation 
activities, flooding and draining activities. A number of commenters 
stated that the definition does not contain any discussion concerning 
what constitutes an adverse effect.
    These recent court decisions do not affect the definition of the 
term ``loss of waters of the United States.'' Because of these 
decisions, the Corps does not regulate excavation of waters of the 
United States under Section 404 of the Clean Water Act if the 
excavation activity results only in incidental fallback of excavated 
material. Excavation activities that result in more than incidental 
fallback of dredged material into waters of the United States require a 
Section 404 permit and may be authorized by NWP. District engineers 
will determine whether or not a particular excavation activity requires 
a Section 404 permit based on the degree of the discharge associated 
with the excavation activity. In summary, if the discharge resulting 
from the excavation activity is only incidental fallback, then no 
Section 404 permit is required. We believe that retaining excavation 
activities in this definition will reduce confusion for the regulated 
public because some excavation activities in waters of the United 
States are still regulated under Section 404 and to exclude excavation 
activities from this definition would be misleading.
    Since the Corps and EPA's revisions to the definition of 
``discharge of dredged material'' promulgated on August 25, 1993, were 
overturned, the criteria concerning what constitutes an adverse effect 
for the purposes of Section 404 of the Clean Water Act has become 
narrower in scope. Regulatory Guidance Letters 90-5 and 88-06 were 
issued prior to the August 25, 1993, rule and provide guidance relevant 
to this issue. An activity that converts a wetland to another use can 
be considered a loss of waters of the United States and regulated under 
Section 404 if that activity causes the loss of, or substantially 
modifies, waters of the United States by eliminating or greatly 
reducing the principal valuable functions of those waters. Losses of 
waters of the United States can occur either by direct impacts (e.g., 
covering by fill) or by closely-related indirect impacts (e.g., the 
changes in vegetation that occur after a swamp is flooded by 
constructing a dam, killing all of the trees in the flooded area). Any 
indirect adverse effects factored into the acreage measurement of 
``loss of waters of the United States'' must eliminate or substantially 
impair the principal valuable functions that the waterbody provided 
prior to conducting the activity. Indirect adverse effects such as 
backwater flooding and dewatering are more strongly related to the 
discharge and should be included in the loss of waters of the United 
States if they result in substantial, long-term adverse effects on the 
aquatic environment. Excavation activities that result only in 
incidental fallback and waters affected by that excavation activity 
should not be calculated into the acreage loss unless the permittee 
cannot conduct the excavation activity without the associated discharge 
that is regulated under Section 404.
    For the purposes of the proposed NWP notification thresholds, we 
have modified the sentence addressing the loss of stream bed by adding 
the phrase ``perennial and intermittent'' before the word stream, 
because the proposed NWPs require notification only for those 
activities that result in the discharge of dredged or fill material 
into waters of the United States due to filling or excavating perennial 
or intermittent stream beds.
    One commenter requested that the definition of ``loss of waters of 
the United States'' include the effects of habitat fragmentation, which 
could adversely affects some functions and values of waters of the 
United States.
    We disagree, because this effect is beyond the Corps scope of 
analysis for Section 404 activities. Many activities that result in 
habitat fragmentation do not result in a discharge of dredged or fill 
material into waters of the United States, and are not regulated under 
Section 404 of the Clean Water Act.
    We have added sentences to this definition to differentiate between 
permanent and temporary losses of waters of the United States. 
Temporary losses of waters of the United States are not included in the 
measurement of loss of waters of the United States. We are proposing to 
modify the definition of the term ``loss of waters of the United 
States'' as discussed above.
    Noncontiguous wetland: In response to the proposed definition, we 
received comments that were similar to the comments received for the 
proposed definition of ``contiguous wetland,'' which were discussed 
above. Several commenters stated that the proposed definition is 
unclear. A commenter stated that noncontiguous wetlands are isolated 
wetlands. Another commenter recommended that the break between 
contiguous and non-contiguous waters should be based on topography or 
hydrologic influence, not the type of channel between the wetland and 
the waterbody. Another commenter stated

[[Page 39353]]

that the part of the definition referring to ``a linear aquatic system 
with a defined channel to the otherwise contiguous wetland'' needs to 
be clarified and that the term ``linear aquatic system'' needs to be 
defined. This commenter also recommended that the Corps include 
examples and explanatory statements to describe how contiguous and 
noncontiguous wetlands differ from each other. One commenter 
recommended that the definition should state that noncontiguous 
wetlands do not share a common groundwater connection with other waters 
of the United States.
    To increase protection of the aquatic environment, we are proposing 
to prohibit the use of most of the new NWPs in non-tidal wetlands 
adjacent to tidal waters instead of prohibiting the use of these NWPs 
in non-tidal wetlands contiguous to tidal waters. Therefore, the 
definition of the term ``noncontiguous wetland'' has been removed from 
the ``Definitions'' section of the NWPs.
    Non-tidal wetland: No comments were received on the proposed 
definition. We are proposing to retain this definition.
    Perennial stream: One commenter requested that the Corps, in the 
definition of this term, distinguish between perennial streams and 
drainage ditches. Another commenter stated that the definition should 
be based on the duration of flow, not on the position of stream bed 
relative to the water table.
    The definition of this term should not distinguish between 
perennial streams and drainage ditches because some streams have been 
channelized to improve local drainage. These streams, which are still 
waters of the United States, are considered drainage ditches for the 
purposes of Section 404(f). The maintenance of these channelized 
streams as drainage ditches is exempt from Section 404 permit 
requirements. As previously discussed in this section, we believe that 
it is appropriate to consider the source of water when classifying 
streams as ephemeral, intermittent, or perennial. The definitions for 
these stream types focus on how long flows in the channel over the 
course of a year, but the source of the flowing water is also 
important. It is important to distinguish between natural and 
artificial sources of water when classifying stream types for the 
purposes of the NWPs. We have modified the second sentence of the 
definition, to make it clearer that the water in the stream channel is 
due to the relative position of the water table (i.e., groundwater 
flows into the stream channel, because the water table is above the 
stream bed). We are proposing to modify the definition of this term as 
discussed above.
    Riffle and pool complexes: One commenter questioned whether or not 
riffle and pool complexes are limited to perennial streams. Another 
commenter stated that the definition should include a reference to 40 
CFR Part 230.45. One commenter remarked that the word ``of'' should be 
removed from before the word ``movement.'' Two commenters stated that 
riffle and pool complexes are not limited to perennial streams but may 
occur in intermittent and ephemeral streams. One commenter agreed that 
the definition should be limited to perennial streams and suggested 
that the definition should recognize that riffle and pool complexes are 
often important spawning habitats. A commenter requested that the 
definition provide a minimum threshold for the ratio of riffles, pools, 
and flats that would be considered as riffle and pool complexes because 
some Corps districts consider all ratios except 100% flat as riffle and 
pool complexes.
    We agree that the definition should be the same as the definition 
in 40 CFR Part 230.45 and have replaced the proposed definition with 
the definition found at 40 CFR Part 230.45. We cannot provide a minimum 
threshold for the ratio of riffles, pools, and flats to be considered 
as a riffle and pool complex. District engineers will determine which 
segments of streams contain riffle and pool complexes. We are proposing 
to modify the definition of this term as discussed above.
    Stormwater management: One commenter recommended that the 
definition should include replenishment of groundwater as one of the 
purposes of stormwater management. Another commenter stated that the 
definition should specifically refer to changes in water turbidity. Two 
commenters said that the definition should not be limited to the 
mitigation of negative impacts resulting from urbanization, but should 
recognize that stormwater management is used to mitigate land 
modification, such as the construction of roads in rural areas. One 
commenter suggested that the definition state that stormwater 
management reduces adverse impacts on aquatic resources.
    The primary purposes of stormwater management are to reduce 
degradation of water quality and aquatic habitat quality and reduce 
flooding. Although certain stormwater management techniques are used to 
increase infiltration of stormwater into the soil, it is not our intent 
to list every function provided by stormwater management in the 
definition. Stormwater infiltration techniques are often used to offset 
losses of local infiltration due to increases in the amount of 
impervious surface in the project area, so that increases in stormwater 
runoff do not increase downstream erosion, water quality degradation, 
and flooding.
    We disagree that the definition should specifically reference 
changes in water turbidity. Turbidity is simply one measure of water 
quality, and is already adequately addressed in the definition. We 
concur that the definition should not be limited to urbanization, and 
will replace this word with the phrase ``changes in land use.'' We will 
add the phase ``on the aquatic environment'' to the end of the 
definition to provide further clarification of the purpose of 
stormwater management. We are proposing to modify the definition of 
this term as discussed above.
    Stormwater management facilities: One commenter stated that the 
proposed definition is far more limited and does not include the full 
description provided in text of the NWP for stormwater management 
facilities. This commenter recommended that the definition include the 
following stormwater management activities: water control structures, 
outfall structures, emergency spillways, constructed wetland basins, 
wetland bottom channels, filter basins, infiltration basins, channels, 
and ditches. Another commenter recommended that the definition should 
also include debris basins and dams, storm drains, levees, and 
channels. A third commenter suggested that the definition include 
retarding basins.
    It is not our intent to include a comprehensive list of stormwater 
management techniques, practices, or structures in the definition. The 
inclusion of stormwater retention and detention ponds and best 
management practices in the definition is intended only to provide 
examples. We are proposing to retain this definition.
    Tidal wetland: One commenter stated that the definition at 33 CFR 
Part 328.3(d) does not include the qualification that the high tide 
line must be inundated by tidal waters at least 2 times per month and 
recommended that this part of the proposed definition should be 
eliminated from the definition because of the great differences in 
daily tide heights. Two commenters said that tidal waters occur only 
below the mean high water line and that the Corps is attempting to 
extend its jurisdictional authority by defining tidal waters to include 
spring high tides. One of these commenters stated that the proposed 
definition is

[[Page 39354]]

contrary to Section 10 of the Rivers and Harbors Act.
    The definition proposed in the July 1, 1998, Federal Register 
notice is not contrary to current Corps regulations and definitions. 
All waters subject to the ebb and flow of the tide are waters of the 
United States, including spring high tides. Spring high tides occur two 
times per lunar month when the sun, moon, and earth are aligned with 
each other and exert the greatest gravitational influence on tidal 
waters, resulting in the highest and lowest tides that occur during the 
tidal cycle. It is important to recognize that spring high tides occur 
only two times per lunar month to differentiate between high tides 
regularly caused by gravitational interactions of the sun, moon, and 
earth and storm surges of tidal waters caused by atmospheric phenomena. 
To provide further clarification, we will insert the word ``lunar'' 
before the word ``month'' in the last sentence of this definition.
    Tidal waters extend landward of the mean high tide line. The ``mean 
high tide line'' is an average of tidal heights over the course of a 
complete monthly tidal cycle. Therefore, half of the monthly tides will 
be landward of the mean high tide line and half of the monthly tides 
will be channelward of the mean high tide line. Tidal waters landward 
of the mean high tide line are waters of the United States, but they 
are not navigable waters of the United States. Therefore, tidal waters 
landward of the mean high tide line are subject to Section 404 of the 
Clean Water Act, but not Section 10 of the Rivers and Harbors Act. See 
33 CFR 329.12 for a discussion of the geographic and jurisdictional 
limit of oceanic and tidal waters relative to Section 10 of the Rivers 
and Harbors Act. The definition of this term has been modified as 
discussed above.
    Vegetated shallows: No comments were received concerning the 
proposed definition of this term. We are proposing to retain this 
definition.
    Waterbody: One commenter is unsure why a definition is required for 
this term because, according to the commenter, the definition does not 
appear anywhere else in the Corps regulatory program. This commenter 
also stated that wetlands are waterbodies, but often do not have 
discernible high water marks. This commenter recommended the 
elimination of this term from the ``Definitions'' section of the NWPs. 
Another commenter stated that the proposed definition does not have a 
frequency threshold for the establishment of an ordinary high water 
mark (OHWM) and recommended that the definition include such a 
threshold. One commenter stated that the Corps should clarify how the 
definition relates to open waters and that the definition should 
clarify that waterbodies may or may not be regulated under Section 404 
of the Clean Water Act. Another commenter recommended that the 
definition exclude farm ponds.
    The word ``waterbody'' was used throughout the July 1, 1998, 
Federal Register notice for the proposed new and modified NWPs. It is 
also used in the NWP regulations issued on November 22, 1991 (56 FR 
59110-59147), particularly for the definition of the term ``single and 
complete project'' at 33 CFR Part 330.2(i). This word is also used in 
NWP 29 and General Condition 4. The intent of the definition is to 
ensure consistent application of the term for the NWPs.
    Waterbodies consist of open and flowing waters, as well as 
contiguous wetlands. We will modify this definition to include 
contiguous wetlands, which may not have an OHWM. For example, a lake 
may be surrounded by a wetland fringe inhabited by emergent wetland 
vegetation. The OHWM may or may not be the same as the wetland 
boundary, which may extend beyond the OHWM. Wetlands contiguous to open 
or flowing waters should be considered as part of the same waterbody. A 
wetland can be considered a waterbody if it is inundated with flowing 
or standing water.
    To provide further clarification to distinguish between wetlands 
and open and flowing waters, we have added a definition for the term 
``open water,'' which is often used in these NWPs. We are proposing to 
modify this definition as discussed above.
    Additional Definitions: In response to the July 1, 1998, Federal 
Register notice, we received several comments requesting definitions of 
additional terms used in the NWP program. Some of these terms will be 
added to the definition section of the NWPs, as discussed below.
    For the purposes of NWP 27 and the NWP conditions addressing 
compensatory mitigation, we are proposing to add definitions of the 
terms ``compensatory mitigation,'' ``restoration,'' ``creation,'' 
``enhancement,'' and ``preservation.'' The definitions for these terms 
that were developed for the ``Federal Guidance for the Establishment, 
Use, and Operation of Mitigation Banks,'' published in the November 28, 
1995, issue of the Federal Register (60 FR 58605-58614) will be used in 
the ``Definitions'' section of the NWPs.
    Two commenters requested that the Corps include a definition of the 
word ``aquatic'' in the NWPs. They believe that the Corps should 
include a definition of this word that reflects the limits of its 
regulatory authority or replace this word with the phrase ``waters of 
the United States'' or ``navigable waters.''
    We believe that is not necessary to include a definition of this 
word for the NWP program. If an aquatic area is not a water of the 
United States, then it is not subject to either Section 404 or Section 
10.
    In response to comments received in response to our proposed 
definition of the term ``waterbody,'' we are proposing to add a 
definition of the term ``open water'' because this term is used in NWPs 
27 and 39 and General Conditions 9 and 19.
    One commenter requested a definition of the phrase ``projects that 
may have more than minimal adverse effects on the aquatic 
environment.'' This commenter believes that a definition is necessary 
to provide clarification to district engineers and regulated public.
    We disagree with this comment. For every request for NWP 
authorization, district engineers must determine whether or not that 
particular project will result in more than minimal adverse effects. 
This determination is made on a case-by-case basis, and depends on many 
factors which cannot be captured in a simple definition. Therefore, we 
will not include a definition of this phrase.
    Another commenter suggested including a definition of ``region,'' 
because division and district engineers should utilize this term 
consistently.
    We do not agree that it is necessary to define the term ``region'' 
for the NWPs, because no specific definition is required. A region is 
simply a geographic area. For the purposes of regional conditioning or 
revocation of the NWPs, a region may be a waterbody, watershed, sub-
watershed, county, state, or Corps district. Corps districts review 
cumulative adverse effects on the aquatic environment on a watershed 
basis. Division or district engineers can determine which scale of 
region is appropriate. If cumulative adverse effects are more than 
minimal in a single sub-watershed, then it would be appropriate to 
suspend or revoke NWP only in that sub-watershed. If the cumulative 
adverse effects on the aquatic environment due to an NWP are more than 
minimal in an entire state, then the appropriate region would be the 
state. For these reasons, we will not add a definition of the term 
``region'' to the NWPs.

[[Page 39355]]

    One commenter requested that we add a definition of the term 
``restored channel'' to the NWPs.
    We disagree that such a definition is necessary because 
``restoration,'' as presently used for wetland compensatory mitigation 
projects, can apply to streams as well. The restoration of a stream 
channel reestablishes the stream channel where it previously existed.
    Two commenters recommended that we include a definition of the term 
``single and complete project'' with the NWPs. One commenter stated 
that the definition in 33 CFR Part 330.2(i) is confusing and difficult 
to implement, especially with respect to the cumulative adverse effects 
that occur when a linear project crosses single waterbody several 
times. Another commenter requested a definition of this term that would 
include all current and future phases of development of land under a 
single common ownership which has been subdivided or transferred to 
facilitate development.
    We believe that this term does not need to be redefined. For 
convenience, we are proposing to add a definition of the term ``single 
and complete project'' to the ``Definitions'' section of the NWPs, 
which paraphrases the definition at 33 CFR Part 330.2(i). For linear 
projects, district engineers will continue to assess cumulative adverse 
effects on the aquatic environment to determine if the project can be 
authorized by NWPs. If the adverse effects on the aquatic environment 
are more than minimal, individually or cumulatively, the District 
Engineer will exercise discretionary authority and require an 
individual permit for the project. For subdivisions, the subdivision 
provision of proposed NWP 39 as well as 33 CFR Part 330.2(i) will be 
used to determine acreage limits for particular subdivisions. In 
addition, district engineers will consider whether or not each phase of 
a multi-phase project can be considered as a separate single and 
complete project. If each phase has independent utility, then each 
phase can be considered a separate single and complete project.
    One commenter requested that the definition of the term ``small 
perennial stream,'' which was used in NWPs 40 and 44, should be 
included in the ``Definitions'' section of the NWPs.
    We have deleted the reference to small perennial streams from NWPs 
40 and 44. Therefore, no definition of this term is needed.
    One commenter recommended that the Corps include a definition of 
the term ``stream'' in the NWPs. Another commenter requested the 
inclusion of a definition of ``stream bed'' because the definition on 
page 36042 of the July 1, 1998, Federal Register notice is a definition 
of ``stream,'' not ``stream bed.'' The term ``stream bed'' is also used 
throughout the NWPs.
    We agree that the definition on page 36042 of the July 1, 1998, 
Federal Register notice is actually a definition of the term ``stream'' 
and believe that it is unnecessary to include a definition of 
``stream'' in the NWPs since the term ``stream bed'' is used throughout 
the NWPs, particularly in the context of the 500 linear foot 
notification requirement. Therefore, we are proposing to add a 
definition of the term ``stream bed'' to the ``Definitions'' section of 
the NWPs. The limits of the stream bed are identified by the location 
of the ordinary high water marks on either side of the stream bed. Any 
wetlands contiguous to the stream bed, but outside of the ordinary high 
water mark, are not part of the stream bed.
    Due to changes in the NWPs made in response to the comments 
received in reply to the July 1, 1998, Federal Register notice, we are 
proposing to add definitions for several more terms used in the NWPs. 
These terms include: ``project area'' and ``independent utility.'' We 
are also proposing to add a definition of the term ``permanent above-
grade fill'' to the ``Definitions'' section since this term is used in 
proposed General Condition 27.
    One commenter requested that the Corps include definitions of 
``important spawning areas'' and ``water quality management plan'' in 
this section.
    We disagree that definitions of these terms are necessary. District 
engineers will determine which areas are important spawning areas. The 
content of the water quality management plan, if required by General 
Condition 9, is also at the discretion of the District Engineer.

VI. Comments on Other Issues in July 1, 1998, Federal Register Notice

Other Suggested NWPs
    In response to the December 13, 1996, Federal Register notice, 
several commenters recommended additional replacement NWPs. We do not 
believe that development of more new NWPs is warranted at this time. 
Some of the recommended NWPs are for activities in areas that are not 
considered waters of the United States and others are for activities 
that are exempt from permit requirements of Section 404 of the Clean 
Water Act and Section 10 of the Rivers and Harbors Act.
    Maintenance of Landfill Surfaces: Most commenters agreed with the 
statement that routine maintenance of landfill surfaces does not 
require a Section 404 permit. Several commenters requested that we 
reiterate such language in the final Federal Register notice for the 
NWPs, and further requested that the Corps also include a discussion of 
the 9th Circuit decision in the Resource Investment Incorporated (RII) 
v. Corps of Engineers case. One commenter disagreed with the statement 
that most landfills are constructed in uplands, stating that there are 
a number of landfills constructed on wetlands.
    Ponded areas that develop on landfill surfaces are not waters of 
the United States. Although a landfill may be constructed in wetlands, 
the landfill replaces the waterbody with dry land. Therefore, that area 
is no longer a water of the United States. The landfill cap may develop 
ponded areas that may be inhabited by wetland vegetation, but these 
areas must be repaired to prevent additional air and water pollution. 
These maintenance activities do not require a Section 404 permit 
because these ponded areas are not waters of the United States. The 
preamble to 33 CFR Part 328 in the November 13, 1986, Federal Register 
(51 FR 41217, Section 328.3) states that ``water filled depressions 
created in dry land incidental to construction activity * * *'' are not 
considered waters of the United States ``* * * until the construction 
or excavation operation is abandoned and the resulting body of water 
meets the definition of waters of the United States.'' The landfill is 
not abandoned because of the routine maintenance required by law to 
keep the landfill surface at the designed grade. Since routine 
maintenance of landfill surfaces does not require a Section 404 permit, 
we will not be developing an NWP for this activity. With regard to 
requests to include a discussion of the RII case, this matter is still 
in litigation and such a discussion is inappropriate at this time.
Maintenance and Filling of Ditches Adjacent to Roads and Railways
    Although a few commenters requested a new NWP authorizing the 
maintenance and filling of ditches adjacent to roads and railways, such 
a NWP is not necessary. In response to the July 1, 1998, Federal 
Register notice, most commenters stated that this activity is exempt 
from regulation or is outside of the Corps jurisdiction. One commenter 
stated that wet weather conveyances should not be regulated because it 
would greatly increase the Corps workload. Another commenter noted 
that, to meet safety design standards, transportation agencies often

[[Page 39356]]

widen and flatten side slopes of the embankment by adding fill to one 
side of the ditch.
    The maintenance of roadside or railroad ditches constructed in 
uplands does not require a Section 404 permit since these ditches are 
not waters of the United States, even though they may support wetland 
vegetation. The preamble to 33 CFR Part 328.3, as published in the 
November 13, 1986, issue of the Federal Register (51 FR 41217), states 
that ``non-tidal drainage or irrigation ditches excavated on dry land'' 
are generally not considered to be waters of the United States. Filling 
these ditches to widen the road or railroad bed does not require a 
Section 404 permit.
    If these roadside or railroad ditches are constructed in waters of 
the United States, the maintenance of these ditches is exempt from 
Section 404 permit requirements (see CFR Part 323.4(a)(3)), provided 
the ditch is restored to its original dimensions and configuration. 
However, the construction of these ditches in waters of the United 
States requires a Section 404 permit and may be authorized by an NWP, 
an individual permit, or a regional general permit. A Corps permit is 
required to widen the road or railroad bed if the ditches adjacent to 
the existing road or railroad bed were constructed in waters of the 
United States. The construction or maintenance of roadside and railroad 
ditches in navigable waters of the United States requires a Section 10 
permit. Furthermore, if the maintenance of a roadside ditch includes 
reconfiguring that ditch, the activity does not qualify for the 
exemption at 33 CFR Part 323.4(a)(3).
Maintenance of Water Treatment Facilities
    A commenter requested that the Corps consider a new NWP for the 
maintenance of water treatment facilities, such as the removal of 
material from constructed settling lagoons and associated constructed 
wetlands, maintenance and de-watering of stock ponds for livestock, and 
maintenance of recharge ponds for water supplies. One commenter said 
that the Corps description on page 36063 of the July 1, 1998, Federal 
Register notice characterizing exempt activities related to stock ponds 
contained errors (e.g., water quality benefits ``test'').
    Water treatment facilities constructed in uplands do not require a 
Section 404 permit for maintenance activities. We do not generally 
consider ``[a]rtificial lakes or ponds created by excavating and/or 
diking dry land to collect and retain water and which are used 
exclusively for such purposes as stock watering, irrigation, settling 
basins, or rice growing'' to be waters of the United States. (Refer to 
the preamble for 33 CFR Part 328.3, as published in the November 13, 
1986, issue of the Federal Register (51 FR 41217).)
    The proposed modifications to NWP 3 and NWP 7, which authorize the 
removal of accumulated sediment in the vicinity of existing structures, 
should address some of these issues. Removal of sediments from 
detention and settling basins constructed with a Section 404 permit may 
be authorized by NWP 7 as long as the maintenance activity is 
associated with an intake or outfall structure. Maintenance of recharge 
ponds constructed in uplands does not require a Section 404 permit, but 
the maintenance of these ponds constructed in waters of the United 
States may be authorized by existing NWPs, such as NWPs 3, 13, or 18. 
Therefore, these activities have not been specifically included in the 
proposed NWPs.
    With regard to comments relating to stock pond exemptions, we 
provide the following clarification: The construction of stock ponds is 
an exempt activity; thus, activities necessary for the construction and 
maintenance of stock ponds are exempt from Section 404 permit 
requirements. Maintenance activities, such as the deepening of a stock 
pond, do not require a Section 404 permit provided the activity does 
not increase in the lateral extent of the pond. Additionally, the 
construction or maintenance activity may not bring a water into a use 
to which it was not previously subject and it may not impair the flow 
or circulation or reduce the reach of such waters.
    NWP 31: In the July 1, 1998, Federal Register notice, we responded 
to a request to expand the scope of NWP 31 to authorize other 
maintenance activities associated with flood control and maintenance of 
water supply facilities. In response to this part of the July 1, 1998, 
Federal Register notice, several commenters addressed issues related to 
NWP 31. Two commenters suggested that routine maintenance activities 
should be omitted from the requirements of the Corps regulatory 
program. Another requested that the Corps explain why a single activity 
may be authorized by three different NWPs, in this case NWP 3, 7, or 18 
to authorize removal of accumulated sediments.
    Any maintenance activity that involves a discharge of dredged or 
fill material into waters of the United States requires a Section 404 
permit, unless that activity qualifies for the exemption under Section 
404(f). We cannot expand the exemptions in Section 404(f); adding other 
maintenance activities to Section 404(f) requires modification of the 
Clean Water Act through the legislative process. Therefore, routine 
maintenance activities cannot be omitted from the Corps Regulatory 
Program.
    NWPs 3, 7, and 18 were developed to authorize specific activities. 
Although we are proposing to modify both NWPs 3 and 7 to authorize the 
removal of accumulated sediments, this activity is subject to different 
terms in these NWPs, based on the nature of the work. The removal of 
accumulated sediments in the vicinity of existing structures authorized 
by paragraph (ii) of NWP 3 will allow permittees to restore the 
waterway in the immediate vicinity of structure and protect that 
structure with rip rap. The purpose of part (ii) of NWP 7 is to restore 
outfalls, intakes, small impoundments, and canals to original design 
capacities design configurations. NWP 7 authorizes maintenance dredging 
or maintenance excavation of canals associated with intakes and 
outfalls; paragraph (ii) of NWP 3 does not authorize that activity. NWP 
18 authorizes minor discharges, which is not the same as the activities 
authorized by NWPs 3 and 7.
    We continue to believe that NWP 31 does not require further 
modification at this time, for the same reasons discussed in the July 
1, 1998, Federal Register notice.
    Regional Conditioning of Nationwide Permits: Concurrent with this 
Federal Register notice, District Engineers are issuing local public 
notices. Division and district engineers have proposed regional 
conditions or revocation of some or all of the NWPs contained in this 
Federal Register notice. Regional conditions may also be required by 
State Section 401 water quality certification or Coastal Zone 
Management Act consistency determinations. 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 or 
at the District's Internet home page. Furthermore, this and additional 
information can be obtained on the Internet at the Corps Regulatory 
Home Page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.

ALABAMA
    Mobile District Engineer, ATTN: CESAM-OP-S, 109 St. Joseph 
Street, Mobile, AL 36602-3630

[[Page 39357]]

ALASKA
    Alaska District Engineer, ATTN: CEPOA-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-P, 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: CESPA-CO-R, 4101 Jefferson 
Plaza NE, Room 313, Albuquerque, NM 87109
CONNECTICUT
    New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia 
Road, Concord, MA 01742-2751
DELAWARE
    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East Philadelphia, PA 19107-3390
FLORIDA
    Jacksonville District Engineer, ATTN: CESAJ-CO-R, P.O. Box 4970, 
Jacksonville, FL 32202-4412
GEORGIA
    Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889, 
Savannah, GA 31402-0889
HAWAII
    Honolulu District Engineer, ATTN: CEPOH-ET-PO, Building 230, 
Fort Shafter, Honolulu, HI 96858-5440
IDAHO
    Walla Walla District Engineer, ATTN: CENWW-OP-RF, 210 N. Third 
Street, City-County Airport, Walla Walla, WA 99362-1876
ILLINOIS
    Rock Island District Engineer, ATTN: CEMVR-RD, P.O. Box 004, 
Rock Island, IL 61204-2004
INDIANA
    Louisville District Engineer, ATTN: CELRL-OR-F, P.O. Box 59, 
Louisville, KY 40201-0059
IOWA
    Rock Island District Engineer, ATTN: CEMVR-RD, P.O. Box 2004, 
Rock Island, IL 61204-2004
KANSAS
    Kansas City District Engineer, ATTN: CENWK-OD-P, 700 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
KENTUCKY
    Louisville District Engineer, ATTN: CELRL-OR-F, P.O. Box 59, 
Louisville, KY 40201-0059
LOUISIANA
    New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267, 
New Orleans, LA 70160-0267
MAINE
    New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia 
Road, Concord, MA 01742-2751
MARYLAND
    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715
MASSACHUSETTS
    New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia 
Road, Concord, MA 01742-2751
MICHIGAN
    Detroit District Engineer, ATTN: CELRE-CO-L, P.O. Box 1027, 
Detroit, MI 48231-1027
MINNESOTA
    St. Paul District Engineer, ATTN: CEMVP-CO-R, 190 Fifth Street 
East, St. Paul, MN 55101-1638
MISSISSIPPI
    Vicksburg District Engineer, ATTN: CEMVK-OD-F, 4155 Clay Street, 
Vicksburg, MS 39183-3435
MISSOURI
    Kansas City District Engineer, ATTN: CENWK-OD-P, 700 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
MONTANA
    Omaha District Engineer, ATTN: CENWO-OP-R, 215 N. 17th Street, 
Omaha, NE 68102-4978
NEBRASKA
    Omaha District Engineer, ATTN: CENWO-OP-R, 215 N. 17th Street, 
Omaha, NE 68102-4978
NEVADA
    Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, 
Sacramento, CA 95814-2922
NEW HAMPSHIRE
    New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia 
Road, Concord, MA 01742-2751
NEW JERSEY
    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East, Philadelphia, PA 19107-3390
NEW MEXICO
    Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson 
Plaza NE, Room 313, Albuquerque, NM 87109
NEW YORK
    New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza, 
New York, NY 10278-9998
NORTH CAROLINA
    Wilmington District Engineer, ATTN: CESAW-CO-R, P.O. Box 1890, 
Wilmington, NC 28402-1890
NORTH DAKOTA
    Omaha District Engineer, ATTN: CENWO-OP-R, 215 North 17th 
Street, Omaha, NE 68102-4978
OHIO
    Huntington District Engineer, ATTN: CELRH-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: CENWP-PE-G, P.O. Box 2946, 
Portland, OR 97208-2946
PENNSYLVANIA
    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715
RHODE ISLAND
    New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia 
Road, Concord, MA 01742-2751
SOUTH CAROLINA
    Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919, 
Charleston, SC 29402-0919
SOUTH DAKOTA
    Omaha District Engineer, ATTN: CENWO-OP-R, 215 North 17th 
Street, Omaha, NE 68102-4978
TENNESSEE
    Nashville District Engineer, ATTN: CELRN-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 95814-2922
VERMONT
    New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia 
Road, Concord, MA 01742-2751
VIRGINIA
    Norfolk District Engineer, ATTN: CENAO-OP-R, 803 Front Street, 
Norfolk, VA 23510-1096
WASHINGTON
    Seattle District Engineer, ATTN: CENWS-OP-RG, P.O. Box 3755, 
Seattle, WA 98124-2255
WEST VIRGINIA
    Huntington District Engineer, ATTN: CELRH-ORF, 502 8th Street, 
Huntington, WV 25701-2070
WISCONSIN
    St. Paul District Engineer, ATTN: CEMVP-CO-R, 190 Fifth Street 
East, St. Paul, MN 55101-1638
WYOMING
    Omaha District Engineer, ATTN: CENWO-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: CEPOH-ET-PO, Building 230, 
Fort Shafter, Honolulu, HI 96858-5440
PUERTO RICO & VIRGIN ISLANDS
    Jacksonville District Engineer, ATTN: CESAJ-CO-R, P.O. Box 4970, 
Jacksonville, FL 32202-4412

    Dated: July 13, 1999.

    Approved:
Hans A. Van Winkle,
Brigadier General, U.S. Army, Deputy Commander for Civil Works.

Authority

    Accordingly, we are proposing to issue new NWPs, modify existing 
NWPs, and add conditions and to add NWP definitions under the authority 
of Section 404(e) of the Clean Water Act

[[Page 39358]]

(33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act (33 
U.S.C. 403).

Nationwide Permits, Conditions, Further Information, and 
Definitions

A. Index of Nationwide Permits, Conditions, Further Information, and 
Definitions

Nationwide Permits
3. Maintenance
7. Outfall Structures and Maintenance
12. Utility Line Activities
14. Linear Transportation Crossings
27. Stream and Wetland Restoration Activities
39. Residential, Commercial, and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment 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
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits
16. Water Supply Intakes
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
22. Adverse Effects from Impoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Impaired Waters
27. Fills Within the 100-year Floodplain
Further Information
Definitions
Aquatic Bench
Best Management Practices
Compensatory mitigation
Creation
Drainage ditch
Enhancement
Ephemeral stream
Farm tract
Independent utility
Intermittent stream
Loss of waters of the United States
Non-tidal wetland
Open water
Perennial stream
Permanent above-grade fill
Preservation
Project area
Restoration
Riffle and pool complex
Single and complete project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Tidal wetland
Vegetated shallows
Waterbody

B. Nationwide Permits and Conditions

    3. Maintenance. Activities related to: (i) 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 adverse 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 
nationwide permit authorizes the repair, rehabilitation, or replacement 
of those structures or fills destroyed or damaged by storms, floods, 
fire or other discrete events, provided the repair, rehabilitation, or 
replacement is commenced, or is under contract to commence, within two 
years of the date of their destruction or damage. In cases of 
catastrophic events, such as hurricanes or tornadoes, this two-year 
limit may be waived by the District Engineer, provided the permittee 
can demonstrate funding, contract, or other similar delays.
    (ii) Discharges of dredged or fill material, including excavation, 
into all waters of the United States to remove accumulated sediments 
and debris in the vicinity of, and within, existing structures (e.g., 
bridges, culverted road crossings, water intake structures, etc.) and 
the placement of new or additional rip rap to protect the structure, 
provided the permittee notifies the District Engineer in accordance 
with General Condition 13. The removal of sediment is limited to the 
minimum necessary to restore the waterway in the immediate vicinity of 
the structure to the approximate dimensions that existed when the 
structure was built, but cannot extend further than 200 feet in any 
direction from the structure. The placement of rip rap must be the 
minimum necessary to protect the structure or to ensure the safety of 
the structure. All excavated materials must be deposited and retained 
in an upland area unless otherwise specifically approved by the 
District Engineer under separate authorization. Any bank stabilization 
measures not directly associated with the structure will require a 
separate authorization from the District Engineer.
    (iii) Discharges of dredged or fill material, including excavation, 
into all waters of the United States for activities associated with the 
restoration of upland areas damaged by a storm, flood, or other 
discrete event, including the construction, placement, or installation 
of upland protection structures and minor dredging to remove 
obstructions in a water of the United States. (Uplands lost as a result 
of a storm, flood, or other discrete event can be replaced without a 
Section 404 permit provided the uplands are restored to their original 
pre-event location. This NWP is for the activities in waters of the 
United States associated with the replacement of the uplands.) The 
permittee must notify the District Engineer, in accordance with General 
Condition 13, within 12 months of the date of the damage and the work 
must commence, or be under contract to commence, within two years of 
the date of the damage. The permittee should provide evidence, such as 
a recent topographic survey or photographs, to justify the extent of 
the proposed restoration. The restoration of the damaged areas cannot 
exceed the contours, or ordinary high water mark, that existed prior to 
the damage. The District Engineer retains the right to determine the 
extent of the pre-existing conditions and the extent of any restoration 
work authorized by this permit. Minor dredging to remove obstructions 
from the adjacent waterbody is limited to 50 cubic yards below the 
plane of the ordinary high water mark, and is limited to the amount 
necessary to restore the pre-existing bottom contours of the waterbody. 
The dredging may not be done primarily to obtain fill for any 
restoration activities. The discharge of dredged or fill material and 
all related work needed to restore the upland must be part of a single 
and complete project. This permit cannot be used in conjunction with 
NWP 18 or NWP 19 to

[[Page 39359]]

restore damaged upland areas. This permit cannot be used to reclaim 
historic lands lost, over an extended period of time, to normal erosion 
processes.
    Maintenance dredging for the primary purpose of navigation and 
beach restoration are not authorized by this permit. This permit does 
not authorize new stream channelization or stream relocation projects. 
Any work authorized by this permit must not cause more than minimal 
degradation of water quality, more than minimal changes to the flow 
characteristics of the stream, or increase flooding (See General 
Conditions 9 and 21).

    Note: This NWP authorizes the repair, rehabilitation, or 
replacement of any previously authorized structure or fill that does 
not qualify for the Section 404(f) exemption for maintenance. For 
example, the repair and maintenance of concrete-lined channels are 
exempt from Section 404 permit requirements. (Sections 10 and 404)

    7. Outfall Structures and Maintenance. Activities related to: (i) 
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), and 
(ii) maintenance excavation, including dredging, to remove accumulated 
sediments blocking or restricting outfall and intake structures, 
accumulated sediments from small impoundments associated with outfall 
and intake structures, and accumulated sediments from canals associated 
with outfall and intake structures, provided that the activity meets 
all of the following criteria:
    a. The permittee notifies the District Engineer in accordance with 
General Condition 13;
    b. The amount of excavated or dredged material must be the minimum 
necessary to restore the outfalls, intakes, small impoundments, and 
canals to original design capacities and design configurations (i.e., 
depth and width);
    c. The excavated or dredged material is deposited and retained at 
an upland site, unless otherwise approved by the District Engineer 
under separate authorization; and
    d. Proper soil erosion and sediment control measures are used to 
minimize reentry of sediments into waters of the United States.
    The construction of intake structures is not authorized by this 
NWP, unless they are directly associated with an authorized outfall 
structure. For maintenance excavation and dredging to remove 
accumulated sediments, the notification must include information 
regarding the original design capacities and configurations of the 
facility and the presence of special aquatic sites (e.g., vegetated 
shallows) in the vicinity of the proposed work. (Sections 10 and 404)
    12. Utility Line Activities. Activities required for the 
construction, maintenance and repair of utility lines and associated 
facilities in waters of the United States as follows:
    (i) Utility lines: The construction, maintenance, or repair of 
utility lines, including outfall and intake structures and the 
associated excavation, backfill, or bedding for the utility lines, in 
all waters of the United States, provided there is no change in 
preconstruction contours. A ``utility line'' is defined as any pipe or 
pipeline for the transportation of any gaseous, liquid, 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 (see Note 1, 
below). 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 District Engineer may extend 
the period of temporary side casting not to exceed a total of 180 days, 
where appropriate. In wetlands, the top 6'' to 12'' of the trench 
should normally be backfilled with topsoil from the trench. 
Furthermore, the trench cannot be constructed in such a manner as to 
drain waters of the United States (e.g., backfilling with extensive 
gravel layers, creating a french drain effect). For example, utility 
line trenches can be backfilled with clay blocks to ensure that the 
trench does not drain the waters of the United States through which the 
utility line is installed. Any exposed slopes and stream banks must be 
stabilized immediately upon completion of the utility line crossing of 
each waterbody.
    (ii) Utility line substations: The construction, maintenance, or 
expansion of a substation facility associated with a power line or 
utility line in non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters, provided the activity does not 
result in the loss of greater than 1 acre of non-tidal waters of the 
United States.
    (iii) Foundations for overhead utility line towers, poles, and 
anchors: The construction or maintenance of foundations for overhead 
utility line towers, poles, and anchors in all waters of the United 
States, provided the foundations are the minimum size necessary and 
separate footings for each tower leg (rather than a larger single pad) 
are used where feasible.
    (iv) Access roads: The construction of access roads for the 
construction and maintenance of utility lines, including overhead power 
lines and utility line substations, in non-tidal waters of the United 
States, excluding non-tidal wetlands adjacent to tidal waters, provided 
the discharge does not cause the loss of greater than 1 acre of non-
tidal waters of the United States. Access roads shall be the minimum 
width necessary (see Note 2, below). Access roads must be constructed 
so that the length of the road minimizes the adverse effects on waters 
of the United States and as near as possible to preconstruction 
contours and elevations (e.g., at grade corduroy roads or geotextile/
gravel roads). Access roads constructed above preconstruction contours 
and elevations in waters of the United States must be properly bridged 
or culverted to maintain surface flows. All access roads will be 
constructed with pervious surfaces.
    The term ``utility line'' does not include activities which drain a 
water of the United States, such as drainage tile, or french drains; 
however, it does apply to pipes conveying drainage from another area. 
For the purposes of this NWP, the loss of waters of the United States 
includes the filled area plus waters of the United States that are 
adversely affected by flooding, excavation, or drainage as a result of 
the project. Waters of the United States temporarily affected by 
filling, flooding, excavation, or drainage, where the project area is 
restored to preconstruction contours and elevations, are not included 
in the calculation of permanent loss of waters of the United States. 
This includes temporary construction mats (e.g., timber, steel, 
geotextile) used during construction and removed upon completion of the 
work. Where certain functions and values of waters of the United States 
are permanently adversely affected, such as the conversion of a 
forested wetland to a herbaceous wetland in the permanently maintained 
utility line right-of-way, mitigation will be required to reduce the 
adverse effects of the project to the minimal level.
    Mechanized landclearing necessary for the construction, 
maintenance, or repair of utility lines and the construction, 
maintenance and expansion of utility line substations, foundations for 
overhead utility lines,

[[Page 39360]]

and access roads is authorized, provided the cleared area is kept to 
the minimum necessary and preconstruction contours are maintained as 
near as possible. The area of waters of the United States that is 
filled, excavated, or flooded must be limited to the minimum necessary 
to construct the utility line, substations, foundations, and access 
roads. Excess material must be removed to upland areas immediately upon 
completion of construction. This NWP may authorize utility lines in or 
affecting navigable waters of the United States, even if there is no 
associated discharge of dredged or fill material (See 33 CFR Part 322).
    Notification: The permittee must notify the District Engineer in 
accordance with General Condition 13, if any of the following criteria 
are met:
    (a) Mechanized land clearing in a forested wetland for the utility 
line right-of-way;
    (b) A Section 10 permit is required;
    (c) The utility line in waters of the United States, excluding 
overhead lines, exceeds 500 feet;
    (d) The utility line is placed within a jurisdictional area (i.e., 
a water of the United States), and it runs parallel to a stream bed 
that is within that jurisdictional area;
    (e) Discharges associated with the construction of utility line 
substations that result in the loss of greater than \1/4\ acre of 
waters of the United States; or
    (f) Permanent access roads constructed above grade in waters of the 
United States for a distance of more than 500 feet.

    Note 1: Overhead utility lines constructed over Section 10 
waters and utility lines that are routed in or under Section 10 
waters without a discharge of dredged or fill material require a 
Section 10 permit; except for pipes or pipelines used to transport 
gaseous, liquid, liquefiable, or slurry substances over navigable 
waters of the United States, which are considered to be bridges, not 
utility lines, and may require a permit from the U.S. Coast Guard 
pursuant to Section 9 of the Rivers and Harbors Act of 1899. 
However, any discharges of dredged or fill material associated with 
such pipelines will require a Corps permit under Section 404.
    Note 2: Access roads used for both construction and maintenance 
may be authorized, provided they meet the terms and conditions of 
this NWP. Access roads used solely for construction of the utility 
line must be removed upon completion of the work and the area 
restored to preconstruction contours, elevations, and wetland 
conditions. Temporary access roads for construction may be 
authorized by NWP 33.

    Note 3: Where the proposed utility line is constructed or 
installed in navigable waters of the United States (i.e., Section 10 
waters), copies of the PCN and NWP verification will be sent by the 
Corps to the National Oceanic and Atmospheric Administration, 
National Ocean Service, for charting the utility line to protect 
navigation. (Sections 10 and 404)

    14. Linear Transportation Crossings. Activities required for the 
construction, expansion, modification, or improvement of linear 
transportation crossings (e.g., highways, railways, trails, airport 
runways, and taxiways) in waters of the United States, including 
wetlands, provided that the activity meets the following criteria:
    a. This NWP is subject to the following acreage and linear limits:
    (1) For public linear transportation projects in non-tidal waters, 
excluding non-tidal wetlands adjacent to tidal waters, provided the 
discharge does not cause the loss of greater than 1 acre of waters of 
the United States;
    (2) For public linear transportation projects in tidal waters or 
non-tidal wetlands adjacent to tidal waters, provided the discharge 
does not cause the loss of greater than \1/3\ acre of waters of the 
United States and the length of fill for the crossing in waters of the 
United States does not exceed 200 linear feet, or;
    (3) For private linear transportation projects in all waters of the 
United States, provided the discharge does not cause the loss of 
greater than \1/3\ acre of waters of the United States and the length 
of fill for the crossing in waters of the United States does not exceed 
200 linear feet;
    b. The permittee must notify the District Engineer in accordance 
with General Condition 13 if any of the following criteria are met:
    (1) The discharge causes the loss of greater than \1/4\ acre of 
waters of the United States; or
    (2) There is a discharge in a special aquatic site, including 
wetlands;
    c. The notification must include a mitigation proposal to offset 
permanent losses of waters of the United States to ensure that those 
losses result only in minimal adverse effects to the aquatic 
environment and a statement describing how temporary losses will be 
minimized to the maximum extent practicable;
    d. For discharges in special aquatic sites, including wetlands, the 
notification must include a delineation of the affected special aquatic 
sites;
    e. The width of the fill is limited to the minimum necessary for 
the crossing;
    f. This permit does not authorize stream channelization, and the 
authorized activities must not cause more than minimal changes to the 
hydraulic flow characteristics of the stream, increase flooding, or 
cause more than minimal degradation of water quality of any stream (see 
General Conditions 9 and 21);
    g. This permit cannot be used to authorize non-linear features 
commonly associated with transportation projects, such as vehicle 
maintenance or storage buildings, parking lots, train stations, or 
aircraft hangars; and
    h. The crossing is a single and complete project for crossing a 
water of the United States. Where a road segment (i.e., the shortest 
segment of a road with independent utility that is part of a larger 
project) has multiple crossings of streams (several single and complete 
projects) the Corps will consider whether it should use its 
discretionary authority to require an individual permit.

    Note: Some discharges for the construction of farm roads, forest 
roads, or temporary roads for moving mining equipment may be 
eligible for an exemption from the need for a Section 404 permit 
(see 33 CFR 323.4). (Sections 10 and 404)

    27. Stream and Wetland Restoration Activities. Activities in waters 
of the United States associated with the restoration of former waters, 
the enhancement of degraded tidal and non-tidal wetlands and riparian 
areas, the creation of tidal and non-tidal wetlands and riparian areas, 
and the restoration and enhancement of non-tidal streams and non-tidal 
open water areas as follows:
    (a) The activity is conducted on:
    (1) Non-Federal public lands and private lands, in accordance with 
the terms and conditions of a binding wetland enhancement, restoration, 
or creation agreement between the landowner and the U.S. Fish and 
Wildlife Service (FWS) or the Natural Resources Conservation Service 
(NRCS) or voluntary wetland restoration, enhancement, and creation 
actions documented by the NRCS pursuant to NRCS regulations; or
    (2) Any Federal land; or
    (3) 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 streams or 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
    (4) Any private or public land;
    (b) Notification: For activities on any private or public land that 
are not described by paragraphs (a)(1), (a)(2), or (a)(3) above, the 
permittee must notify the District Engineer in accordance with General 
Condition 13; and

[[Page 39361]]

    (c) Only native plant species should be planted at the site, if 
permittee is vegetating the project site.
    Activities authorized by this NWP include, but are not limited to: 
the removal of accumulated sediments; the installation, removal, and 
maintenance of small water control structures, dikes, and berms; the 
installation of current deflectors; the enhancement, restoration, or 
creation of riffle and pool stream structure; the placement of in-
stream habitat structures; modifications of the stream bed and/or banks 
to restore or create stream meanders; the backfilling of artificial 
channels and drainage ditches; the removal of existing drainage 
structures; the construction of small nesting islands; the construction 
of open water areas; activities needed to reestablish vegetation, 
including plowing or discing for seed bed preparation; mechanized 
landclearing to remove undesirable vegetation; and other related 
activities.
    This NWP does not authorize the conversion of a stream to another 
aquatic use, such as the creation of an impoundment for waterfowl 
habitat. This NWP does not authorize stream channelization. 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. However, this NWP authorizes the 
relocation of non-tidal waters, including non-tidal wetlands, on the 
project site provided there are net gains in aquatic resource functions 
and values. For example, this NWP may authorize the creation of an open 
water impoundment in a non-tidal emergent wetland, provided the non-
tidal emergent wetland is replaced by creating that wetland type on the 
project site. This NWP does not authorize the relocation of tidal 
waters or the conversion of tidal waters, including tidal wetlands, to 
other aquatic uses, such as the conversion of tidal wetlands into open 
water impoundments.
    Reversion. For enhancement, restoration, and creation projects 
conducted under paragraphs (a)(2) and (a)(4), this NWP does not 
authorize any future discharge of dredged or fill material associated 
with the reversion of the area to its prior condition. In such cases a 
separate permit would be required for any reversion. For restoration, 
enhancement, and creation projects conducted under paragraphs (a)(1) 
and (a)(3), 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. This NWP also 
authorizes the reversion of wetlands that were restored, enhanced, or 
created on prior-converted cropland that has not been abandoned, in 
accordance with a binding agreement between the landowner and NRCS or 
FWS (even though the restoration, enhancement, or creation activity did 
not require a Section 404 permit). The five-year reversion limit does 
not apply to agreements without time limits reached under paragraph 
(a)(1). 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)

    Note: Compensatory mitigation is not required for activities 
authorized by this NWP, provided the authorized work results in a 
net increase in aquatic resource functions and values in the project 
area. This NWP can be used to authorize compensatory mitigation 
projects, including mitigation banks, provided the permittee 
notifies the District Engineer in accordance with General Condition 
13, and the project includes compensatory mitigation for impacts to 
waters of the United States caused by the authorized work. However, 
this NWP does not authorize the reversion of an area used for a 
compensatory mitigation project to its prior condition.

    39. Residential, Commercial, and Institutional Developments. 
Discharges into non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters, for the construction or 
expansion of residential, commercial, and institutional building 
foundations and building pads and attendant features that are necessary 
for the use and maintenance of the structures. Attendant features may 
include, but are not limited to, roads, parking lots, garages, yards, 
utility lines, stormwater management facilities, and recreation 
facilities such as playgrounds, playing fields, and golf courses 
(provided the golf course is an integral part of the residential 
development). The construction of new ski areas or oil and gas wells is 
not authorized by this NWP. Residential developments include multiple 
and single unit developments. Examples of commercial developments 
include retail stores, industrial facilities, restaurants, business 
parks, and shopping centers. Examples of institutional developments 
include schools, fire stations, government office buildings, judicial 
buildings, public works buildings, libraries, hospitals, and places of 
worship. The activities listed above are authorized, provided that the 
activities meet all of the following criteria:
    a. The acreage limit for this NWP is determined by using the 
following index (see Note 1, below):

Acreage limit = \1/4\ acre + 2% of the project area (in acres)

The maximum acreage limit for this NWP is 3 acres of non-tidal waters, 
excluding non-tidal wetlands adjacent to tidal waters. This acreage 
limit is achieved for a project area of 137.5 acres or more.
    b. The permittee must notify the District Engineer in accordance 
with General Condition 13, if any of the following criteria are met:
    (1) The discharge causes the loss of greater than \1/4\ acre of 
non-tidal waters of the United States, excluding non-tidal wetlands 
adjacent to tidal waters; or
    (2) The discharge causes the loss of any open waters, including 
perennial or intermittent streams, below the ordinary high water mark 
(see Note 2, below).
    c. For discharges in special aquatic sites, including wetlands, the 
notification must also include a delineation of affected special 
aquatic sites, including wetlands;
    d. The discharge is part of a single and complete project;
    e. The permittee must avoid and minimize discharges into waters of 
the United States at the project site to the maximum extent 
practicable, and the notification, when required, must include a 
written statement explaining how avoidance and minimization of losses 
of waters of the United States were achieved on the project site. 
Compensatory mitigation will normally be required to offset the losses 
of waters of the United States. The notification, when required, must 
also include a compensatory mitigation proposal for offsetting 
unavoidable losses of waters of the United States. If an applicant 
believes that the project impacts are minimal without mitigation, then 
the applicant may submit justification explaining why compensatory 
mitigation should not be required for the District Engineer's 
consideration;
    f. When this NWP is used in conjunction with any other NWP, any

[[Page 39362]]

combined total permanent loss of non-tidal waters of the United States, 
excluding non-tidal wetlands adjacent to tidal waters, exceeding \1/4\ 
acre requires that the permittee notify the District Engineer in 
accordance with General Condition 13;
    g. Any work authorized by this NWP must not cause more than minimal 
degradation of water quality or more than minimal changes to the flow 
characteristics of any stream (see General Conditions 9 and 21);
    h. For discharges causing the loss of \1/4\ acre or less of waters 
of the United States, the permittee must submit a report, within 30 
days of completion of the work, to the District Engineer that contains 
the following information: (1) The name, address, and telephone number 
of the permittee; (2) The location of the work; (3) A description of 
the work; (4) The type and acreage (or linear feet) of the loss of 
waters of the United States (e.g., \1/10\ acre of emergent wetlands and 
50 linear feet of stream bed); and (5) The type and acreage (or linear 
feet) of any compensatory mitigation used to offset the loss of waters 
of the United States (e.g., \1/10\ acre of emergent wetlands created 
on-site);
    i. If there are any open waters or streams within the project area, 
the permittee will establish and maintain, to the maximum extent 
practicable, wetland or upland vegetated buffers adjacent to those open 
waters or streams consistent with General Condition 19. Deed 
restrictions, conservation easements, protective covenants, or other 
means of land conservation and preservation are required to protect and 
maintain the vegetated buffers established on the project site; and
    j. Stream channelization or stream relocation downstream of the 
point on the stream where the annual average flow is 1 cubic foot per 
second is not authorized by this NWP.
    Only residential, commercial, and institutional activities with 
structures on the foundation(s) or building pad(s), as well as the 
attendant features, are authorized by this NWP. For the purposes of 
this NWP, the term ``project area'' is defined in the definition 
section of the NWPs. The compensatory mitigation proposal required in 
paragraph (e) of this NWP may be either conceptual or detailed. The 
wetland or upland vegetated buffer required in paragraph (i) of this 
NWP will normally be 50 to 125 feet wide, but the District Engineer 
will determine the appropriate width of the vegetated buffer. The 
required wetland or upland vegetated buffer is part of the overall 
compensatory mitigation requirement for this NWP. If the project site 
was previously used for agricultural purposes and the farm owner/
operator used NWP 40 to authorize activities in waters of the United 
States to increase production or construct farm buildings, NWP 39 
cannot be used by the developer to authorize additional activities in 
waters of the United States on the project site in excess of the 
indexed acreage limit for NWP 39 (i.e., the combined acreage loss 
authorized under NWPs 39 and 40 cannot exceed the indexed acreage limit 
based on project area in paragraph (a), above).
    Subdivisions: For any real estate subdivision created or subdivided 
after October 5, 1984, a notification pursuant to paragraph (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 \1/4\ 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 the indexed acreage limit based on project 
area as determined by paragraph (a) 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 July 21, 1999, 
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 39. For the 
purposes of NWP 39, 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. 
(Sections 10 and 404)

    Note 1: For example, if the project area is 15 acres, the 
acreage limit for a single and complete project under this NWP is 
0.55 acres. For any project area of 137.5 acres or more, the acreage 
limit under this NWP is 3 acres of non-tidal waters, excluding non-
tidal wetlands adjacent to tidal waters.
    Note 2: Areas where there is no wetland vegetation are 
determined by the presence or absence of an ordinary high water mark 
or bed and bank. Areas that are waters of the United States based on 
this criteria would require a PCN even though water is infrequently 
present in the stream channel.

    40. Agricultural Activities. Discharges of dredged or fill material 
into non-tidal waters of the United States, excluding non-tidal 
wetlands adjacent to tidal waters, for the purpose of improving 
agricultural production and the construction of building pads for farm 
buildings. Authorized activities include the installation, placement, 
or construction of drainage tiles, ditches, or levees; mechanized 
landclearing; land leveling; the relocation of existing serviceable 
drainage ditches constructed in waters of the United States; and 
similar activities, provided the permittee complies with the following 
terms and conditions:
    a. For discharges into non-tidal wetlands to improve agricultural 
production, the following criteria must be met if the permittee is a 
USDA program participant:
    (1) The permittee must obtain an exemption or a minimal effects 
with mitigation determination from NRCS in accordance with the 
provisions of the Food Security Act (16 U.S.C. 3801 et seq.) and the 
National Food Security Act Manual (NFSAM);
    (2) The discharge into non-tidal wetlands does not result in the 
loss of greater than 2 acres of non-tidal wetlands on a farm tract;
    (3) The discharge into playas, prairie potholes, and vernal pools 
does not exceed the acreage limit as determined by the following index 
(see Note, below):

Acreage limit = \1/10\ acre + 1% of farm tract size (in acres)

The maximum acreage loss of playas, prairie potholes, and vernal pools 
authorized by this NWP is 1 acre;
    (4) The permittee must have an NRCS-certified wetland delineation;
    (5) The permittee must implement an NRCS-approved compensatory 
mitigation plan that fully offsets wetland losses; and
    (6) The permittee must submit a report, within 30 days of 
completion of the authorized work, to the District Engineer that 
contains the following information: (a) The name, address, and 
telephone number of the permittee; (b) The location of the work; (c) A 
description of the work; (d) The type and acreage (or square feet) of 
the loss of wetlands (e.g., \1/2\ acre of emergent wetlands); and (e) 
The type, acreage (or

[[Page 39363]]

square feet), and location of compensatory mitigation (e.g., \3/4\ acre 
of emergent wetlands on the farm tract); or
    b. For discharges into non-tidal wetlands to improve agricultural 
production, the following criteria must be met if the permittee is not 
a USDA program participant:
    (1) The discharge into non-tidal wetlands does not result in the 
loss of greater than 2 acres of non-tidal wetlands on a farm tract;
    (2) The discharge into playas, prairie potholes, and vernal pools 
does not exceed the acreage limit as determined by the following index 
(see Note, below):

Acreage limit = \1/10\ acre + 1% of farm tract size (in acres)

The maximum acreage loss of playas, prairie potholes, and vernal pools 
authorized by this NWP is 1 acre;
    (3) The permittee must notify the District Engineer in accordance 
with General Condition 13, if the discharge results in the loss of 
greater than \1/4\ acre of non-tidal wetlands, including playas, 
prairie potholes, and vernal pools;
    (4) The notification must include a delineation of affected 
wetlands; and
    (5) The notification must include a compensatory mitigation 
proposal to offset losses of waters of the United States; or
    c. For the construction of building pads for farm buildings, the 
discharge does not cause the loss of greater than 1 acre of non-tidal 
wetlands that were in agricultural production prior to December 23, 
1985, (i.e., farmed wetlands) and the permittee must notify the 
District Engineer in accordance with General Condition 13; or
    d. Any activity in other waters of the United States is limited to 
the relocation of existing serviceable drainage ditches constructed in 
non-tidal streams. For the relocation of greater than 500 linear feet 
of drainage ditches constructed in non-tidal streams, the permittee 
must notify the District Engineer in accordance with General Condition 
13.
    The term ``farm tract'' refers to a parcel of land identified by 
the Farm Service Agency. The Corps will identify other waters of the 
United States on the farm tract. For the purposes of this NWP, the 
terms ``playas,'' ``prairie potholes,'' and ``vernal pools'' are 
defined in the ``Definitions'' section. NRCS will determine if a 
proposed agricultural activity meets the terms and conditions of 
paragraph (a) of this NWP, except as provided below. For those 
activities that require notification, the District Engineer will 
determine if a proposed agricultural activity is authorized by 
paragraphs (b), (c), and/or (d) of this NWP. USDA program participants 
requesting authorization for discharges of dredged or fill material 
into waters of the United States authorized by paragraphs (c) or (d) of 
this NWP, in addition to paragraph (a), must notify the District 
Engineer in accordance with General Condition 13 and the District 
Engineer will determine if the entire single and complete project is 
authorized by this NWP. Discharges of dredged or fill material into 
waters of the United States associated with the construction of the 
compensatory mitigation are authorized by this NWP, but are not 
calculated in the acreage loss of waters of the United States. This NWP 
does not affect, or otherwise regulate, discharges associated with 
agricultural activities when the discharge qualifies for an exemption 
under Section 404(f) of the Clean Water Act, even though a minimal 
effect/mitigation determination by NRCS pursuant to the Food and 
Security Act may be required. Activities authorized by paragraphs (c) 
and (d) are not included in the indexed acreage limit for the farm 
tract. If the site was used for agricultural purposes and the farm 
owner/operator used either paragraphs (a), (b), or (c) of this NWP to 
authorize activities in waters of the United States to increase 
agricultural production or construct farm buildings, and the current 
landowner wants to use NWP 39 to authorize residential, commercial, or 
industrial development activities in waters of the United States on the 
site, the combined acreage loss authorized by NWPs 39 and 40 cannot 
exceed the indexed acreage limit based on project area for a single and 
complete project in paragraph (a) of NWP 39. (Section 404)

    Note: For example, under paragraphs (a)(3) or (b)(2) above, for 
a 20-acre farm tract, the maximum acreage loss authorized for 
playas, prairie potholes, and vernal pools on the farm tract under 
this NWP is 0.3 acre. For any farm tract 90 acres or more in size, 
the acreage limit of this NWP is 1 acre of playas, prairie potholes, 
and vernal pools.

    41. Reshaping Existing Drainage Ditches. Discharges of dredged or 
fill material into non-tidal waters of the United States, excluding 
non-tidal wetlands adjacent to tidal waters, to modify the cross-
sectional configuration of existing serviceable drainage ditches 
constructed in non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters. The reshaping of the ditch 
cannot increase drainage capacity beyond the original design capacity 
or expand the area drained by the ditch as originally designed (i.e., 
the capacity of the ditch must be the same as originally designed and 
it cannot drain additional wetlands or other waters of the United 
States). Compensatory mitigation is not required because the work is 
designed to improve water quality (e.g., by regrading the drainage 
ditch with gentler slopes, which can reduce erosion, increase growth of 
vegetation, increase uptake of nutrients and other substances by 
vegetation, etc.). The permittee must notify the District Engineer in 
accordance with General Condition 13, if material excavated during 
ditch reshaping is proposed to be sidecast into waters of the United 
States or if greater than 500 linear feet of drainage ditch is to be 
reshaped. This NWP does not apply to reshaping drainage ditches 
constructed in uplands, since these areas are not waters of the United 
States, and thus no permit from the Corps is required, or to the 
maintenance of existing drainage ditches to their original dimensions 
and configuration, which does not require a Section 404 permit (see 33 
CFR 323.4(a)(3)). This NWP does not authorize the relocation of 
drainage ditches constructed in waters of the United States; the 
location of the centerline of the reshaped drainage ditch must be 
approximately the same as the location of the centerline of the 
original drainage ditch. This NWP does not authorize stream 
channelization or stream relocation projects. (Section 404)
    42. Recreational Facilities. Discharges of dredged or fill material 
into non-tidal waters of the United States, excluding non-tidal 
wetlands adjacent to tidal waters, for the construction of expansion of 
recreational facilities, provided the activity meets all of the 
following criteria:
    a. The discharge does not cause the loss of greater than 1 acre of 
non-tidal waters of the United States, excluding non-tidal wetlands 
adjacent to tidal waters;
    b. For discharges causing the loss of greater than \1/4\ acre of 
non-tidal waters of the United States, or the loss of greater than 500 
linear feet of perennial or intermittent stream bed, the permittee 
notifies the District Engineer in accordance with General Condition 13;
    c. For discharges in special aquatic sites, including wetlands, the 
notification must include a delineation of affected special aquatic 
sites, including wetlands; and
    d. The discharge is part of a single and complete project.
    For the purposes of this NWP, the term ``recreational facility'' is 
defined as a recreational activity that has low-impact on the aquatic 
environment, is integrated into the natural landscape, and consists 
primarily of open space that does not substantially change

[[Page 39364]]

preconstruction grades or deviate from natural landscape contours. For 
the purpose of this permit, the primary function of recreational 
facilities does not include the use of motor vehicles, buildings, or 
impervious surfaces. Examples of recreational facilities that may be 
authorized by this NWP include: hiking trails, bike paths, horse paths, 
nature centers, and campgrounds (excluding trailer parks). The 
construction or expansion of golf courses and the expansion of ski 
areas may be authorized by this NWP, provided the golf course or ski 
area does not substantially deviate from natural landscape contours and 
is designed to minimize adverse effects to waters of the United States 
and riparian areas through the use of such practices as integrated pest 
management, adequate stormwater management facilities, vegetated 
buffers, reduced fertilizer use, etc. The facility must have an 
adequate water quality management plan in accordance with General 
Condition 9, such as a stormwater management facility to ensure that 
the recreational facility results in no substantial adverse effects to 
water quality. This NWP also authorizes the construction or expansion 
of small support facilities, such as maintenance and storage buildings 
and stables that are directly related to the recreational activity. 
This NWP does not authorize other buildings, such as hotels, 
restaurants, etc. The construction or expansion of playing fields 
(e.g., baseball, soccer, or football fields), basketball and tennis 
courts, racetracks, stadiums, arenas, and the construction of new ski 
areas are not authorized by this NWP. (Section 404)
    43. Stormwater Management Facilities. Discharges of dredged or fill 
material into non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters, for the construction and 
maintenance of stormwater management facilities, including activities 
for the excavation of stormwater ponds/facilities, detention basins, 
and retention basins; installation and maintenance of water control 
structures, outfall structures and emergency spillways; and the 
maintenance dredging of existing stormwater management ponds/facilities 
and detention and retention basins provided that the activity meets all 
of the following criteria:
    a. The discharge or excavation for the construction of new 
stormwater management facilities does not cause the loss of greater 
than 2 acres of non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters;
    b. The discharge of dredged or fill material for the construction 
of new stormwater management facilities in perennial streams is not 
authorized;
    c. For discharges or excavation for the construction of new 
stormwater management facilities or for the maintenance of existing 
stormwater management facilities causing the loss of greater than \1/4\ 
acre of non-tidal waters, excluding non-tidal wetlands adjacent to 
tidal waters, or causing the loss of greater than 500 linear feet of 
intermittent stream bed, the permittee notifies the District Engineer 
in accordance with General Condition 13. In addition, the notification 
must include:
    (1) A maintenance plan. The maintenance plan should be in 
accordance with State and local requirements, if any such requirements 
exist;
    (2) For discharges in special aquatic sites, including wetlands and 
submerged aquatic vegetation, the notification must include a 
delineation of affected areas; and
    (3) A compensatory mitigation proposal that offsets the loss of 
waters of the United States. Maintenance in constructed areas will not 
require mitigation provided such maintenance is accomplished in 
designated maintenance areas and not within compensatory mitigation 
areas (i.e., district engineers may designate non-maintenance areas, 
normally at the downstream end of the stormwater management facility, 
in existing stormwater management facilities). (No mitigation will be 
required for activities which are exempt from Section 404 permit 
requirements);
    d. The permittee must avoid and minimize discharges into waters of 
the United States at the project site to the maximum extent 
practicable, and the notification must include a written statement to 
the District Engineer detailing compliance with this condition (i.e., 
why the discharge must occur in waters of the United States and why 
additional minimization cannot be achieved);
    e. The stormwater management facility must comply with General 
Condition 21 and be designed using best management practices (BMPs) and 
watershed protection techniques. Examples may include forbays (deeper 
areas at the upstream end of the stormwater management facility that 
would be maintained through excavation), vegetated buffers, and siting 
considerations to minimize adverse effects to aquatic resources. 
Another example of a BMP would be bioengineering methods incorporated 
into the facility design to benefit water quality and minimize adverse 
effects to aquatic resources from storm flows, especially downstream of 
the facility, that provide, to the maximum extent practicable, for long 
term aquatic resource protection and enhancement;
    f. Maintenance excavation will be in accordance with an approved 
maintenance plan and will not exceed the original contours of the 
facility as approved and constructed; and
    g. The discharge is part of a single and complete project. (Section 
404)
    44. Mining Activities. Discharges of dredged or fill material into: 
(i) Isolated waters, streams where the annual average flow is 1 cubic 
foot per second (cfs) or less, and non-tidal wetlands adjacent to 
headwater streams, for aggregate mining (i.e., sand, gravel, and 
crushed and broken stone) and associated support activities; (ii) lower 
perennial streams, excluding wetlands adjacent to lower perennial 
streams, for aggregate mining activities (support activities in lower 
perennial streams or adjacent wetlands are not authorized by this NWP); 
and (iii) isolated waters and non-tidal wetlands adjacent to headwater 
streams, for hard rock/mineral mining activities (i.e., extraction of 
metalliferous ores from subsurface locations) and associated support 
activities, provided the discharge meets the following criteria:
    a. The mined area within waters of the United States, plus the 
acreage loss of waters of the United States resulting from support 
activities, cannot exceed 2 acres;
    b. The acreage loss of waters of the United States resulting from 
support activities cannot exceed one acre;
    c. The permittee must avoid and minimize discharges into waters of 
the United States at the project site to the maximum extent 
practicable, and the notification must include a written statement to 
the District Engineer detailing compliance with this condition (i.e., 
why the discharge must occur in waters of the United States and why 
additional minimization cannot be achieved);
    d. In addition to General Conditions 17 and 20, activities 
authorized by this permit must not substantially alter the sediment 
characteristics of areas of concentrated shellfish beds or fish 
spawning areas. Normally, the mandated water quality management plan 
should address these impacts;
    e. The permittee must implement necessary measures to prevent 
increases in stream gradient and water velocities, to prevent adverse 
effects (e.g., head cutting, bank erosion) on upstream and downstream 
channel conditions;

[[Page 39365]]

    f. Activities authorized by this permit must not result in adverse 
effects on the course, capacity, or condition of navigable waters of 
the United States;
    g. The permittee must utilize measures to minimize downstream 
turbidity;
    h. Wetland impacts must be compensated through mitigation approved 
by the Corps;
    i. Beneficiation and mineral processing may not occur within 200 
feet of the ordinary high water mark of any open waterbody. Although 
the Corps does not regulate discharges from these activities, a Clean 
Water Act Section 402 permit may be required;
    j. All activities authorized by this NWP must carefully adhere to 
General Conditions 9 and 21. Further, if determined necessary by the 
District Engineer, the Corps may require modifications to the required 
water quality management plan;
    k. No aggregate mining can occur within stream beds where the 
average annual flow is greater than 1 cubic foot per second or in 
waters of the United States within 100 feet of the ordinary high water 
mark of headwater stream segments where the average annual flow of the 
stream is greater than 1 cubic foot per second (aggregate mining can 
occur in areas immediately adjacent to the ordinary high water mark of 
a stream where the average annual flow is 1 cubic foot per second or 
less), except for aggregate mining in lower perennial streams;
    l. Single and complete project: The discharges must be for a single 
and complete project, including support activities. Multiple mining 
activity discharges into several designated parcels of a mining project 
may be included together as long as the 2 acre limit is not exceeded; 
and
    m. Notification: The permittee must notify the District Engineer in 
accordance with General Condition 13. The notification must include: 
(1) A description of measures proposed to minimize or prevent adverse 
effects (e.g., head cutting, bank erosion, turbidity, water quality) to 
waters of the United States; (2) A written statement to the District 
Engineer detailing compliance with paragraph (c), above (i.e., why the 
discharge must occur in waters of the United States and why additional 
minimization cannot be achieved); (3) A description of measures taken 
to meet the criteria associated with the discharge being permitted 
(i.e., how the proposed work complies with paragraphs (d) through (g), 
above); and (4) A reclamation plan (for aggregate mining in isolated 
waters and non-tidal wetlands adjacent to headwaters and hard rock/
mineral mining only).
    This NWP does not authorize hard rock/mineral mining, including 
placer mining, in streams. No hard rock/mineral mining can occur in 
waters of the United States within 100 feet of the ordinary high water 
mark of headwater streams. The terms ``headwaters'' and ``isolated 
waters'' are defined in 33 CFR Parts 330.2(d) and (e), respectively. 
For the purposes of this NWP, the term ``lower perennial streams'' is 
the same as the lower perennial riverine subsystem described in the 
Cowardin classification system of wetlands and deepwater habitats of 
the United States. (Sections 10 and 404)

C. Nationwide Permit General Conditions

    The following general conditions must be followed in order for any 
authorization by an 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. Soil Erosion and Sediment Controls. Appropriate soil erosion and 
sediment controls must be used and maintained in effective operating 
condition during construction, and all exposed soil and other fills, as 
well as any work below the ordinary high water mark or high tide line, 
must be permanently stabilized at the earliest practicable date.
    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. 
Culverts placed in streams must be installed to maintain low flow 
conditions.
    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 and Coastal Zone Management Act consistency 
determination.
    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 affect the Wild and Scenic River designation, or study 
status. Information on Wild and Scenic Rivers may be obtained from the 
appropriate Federal land management agency in the area (e.g., National 
Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish 
and Wildlife Service).
    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. In certain States and tribal lands an individual 
401 water quality certification must be obtained or waived (See 33 CFR 
330.4(c)). For NWPs 12, 14, 17, 18, 32, 39, 40, 42, 43, and 44 where 
the State or tribal 401 certification (either generically or 
individually) does not require/approve a water quality management plan, 
the permittee must include design criteria and techniques that provide 
for protection of aquatic resources. The project must include a method 
for stormwater management (whether required by the State or not) that 
minimizes degradation of the downstream aquatic system, including water 
quality. To the maximum extent practicable, a vegetated buffer zone 
(including wetlands, uplands, or both) adjacent to open waters of the 
river, stream, or other open waterbody will be established and 
maintained, if the project occurs in the vicinity of such an open 
waterbody. The District Engineer will determine the proper width of the 
buffer and in which cases it will be required. Normally, the vegetated 
buffer will be 50 to 125 feet wide.
    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 will 
destroy or adversely modify the critical habitat of such species. Non-
federal permittees shall notify the District Engineer if any listed 
species or designated critical habitat might be affected or is in the 
vicinity of the project, or is located in the designated critical 
habitat and shall

[[Page 39366]]

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. For activities that may affect 
Federally-listed endangered or threatened species or designated 
critical habitat, the notification must include the name(s) of the 
endangered or threatened species that may be affected by the proposed 
work or that utilize the designated critical habitat that may be 
affected by the proposed work.
    (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://www.nfms.gov/prot__res/
esahome.html, 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)). For activities that may affect historic properties 
listed in, or eligible for listing in, the National Register of 
Historic Places, the notification must state which historic property 
may be affected by the proposed work or include a vicinity map 
indicating the location of the historic property.
    13. Notification. (a) Timing: Where required by the terms of the 
NWP, the prospective permittee must notify the District Engineer with a 
preconstruction notification (PCN) as early as possible. The District 
Engineer must determine if the notification is complete within 30 days 
of the date of receipt and can request additional information necessary 
for the evaluation of the PCN only once. However, if the prospective 
permittee does not provide all of the requested information, then the 
District Engineer will notify the prospective permittee that the 
notification is still incomplete and the PCN review process will not 
commence until all of the requested information has been received by 
the District Engineer. The prospective permittee shall not begin the 
activity:
    (1) Until notified in writing by the District Engineer that the 
activity may proceed under the NWP with any special conditions imposed 
by the District or Division Engineer; or
    (2) If notified in writing by the District or Division Engineer 
that an individual permit is required; or
    (3) Unless 45 days have passed from the District Engineer's receipt 
of the complete notification and the prospective permittee has not 
received written 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 7, 12, 14, 18, 21, 34, 38, 39, 41, 42, and 43, the PCN 
must also include a delineation of affected special aquatic sites, 
including wetlands, vegetated shallows (e.g., submerged aquatic 
vegetation, seagrass beds), and riffle and pool complexes (see 
paragraph 13(f));
    (5) For NWP 7, Outfall Structures and Maintenance, the PCN must 
include information regarding the original design capacities and 
configurations of those areas of the facility where maintenance 
dredging or excavation is proposed.
    (6) For NWP 21, Surface Coal Mining Activities, the PCN must 
include an Office of Surface Mining (OSM) or State-approved mitigation 
plan.
    (7) 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 
permittee'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 \1/2\ acre or less will not require a formal on-site 
delineation. However, the applicant shall provide an indication of 
where the wetlands are and the amount of wetlands that exists on the 
property. For parcels greater than \1/2\ 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;
    (8) For NWP 31, Maintenance of Existing Flood Control Projects, the 
prospective permittee must either notify the District Engineer with a 
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 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.
    (9) 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.
    (10) For NWPs 39, 43, and 44, the PCN must also include a written 
statement to the District Engineer

[[Page 39367]]

explaining how avoidance and minimization of losses of waters of the 
United States were achieved on the project site and either a 
compensatory mitigation proposal that offsets unavoidable losses of 
waters of the United States or justification explaining why 
compensatory mitigation should not be required.
    (11) For NWP 40, Agricultural Activities, the PCN must include 
information regarding the past use of this NWP on the farm.
    (12) For NWP 43, Stormwater Management Facilities, the PCN must 
include, for the construction of new stormwater management facilities, 
a maintenance plan (in accordance with State and local requirements, if 
applicable) and a compensatory mitigation proposal to offset losses of 
waters of the United States.
    (13) For NWP 44, Mining Activities, the PCN must include a 
description of all waters of the United States adversely affected by 
the project, a description of measures taken to minimize adverse 
effects to waters of the United States, a description of measures taken 
to comply with the criteria of the NWP, and a reclamation plan (for all 
aggregate mining activities except for aggregate mining activities in 
lower perennial streams and any hard rock/mineral mining activities).
    (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 
containing the requisite information may also be used.
    (d) District Engineer's Decision: In reviewing the PCN for the 
proposed activity, the District Engineer will determine whether the 
activity authorized by the NWP will result in more than minimal 
individual or cumulative adverse environmental effects or may be 
contrary to the public interest. The prospective permittee may, 
optionally, submit a proposed mitigation plan with the PCN to expedite 
the process and the District Engineer will consider any proposed 
compensatory mitigation the applicant has included in the proposal in 
determining whether the net adverse environmental effects to the 
aquatic environment of the proposed work are minimal. If the District 
Engineer determines that the activity complies with the terms and 
conditions of the NWP and that the adverse effects on the aquatic 
environment are minimal, the District Engineer will notify the 
permittee and include any conditions the District Engineer deems 
necessary.
    Any compensatory mitigation proposal must be approved by the 
District Engineer prior to commencing work. If the prospective 
permittee is required to submit a compensatory mitigation proposal with 
the PCN, the proposal may be either conceptual or detailed. If the 
prospective permittee elects to submit a compensatory mitigation plan 
with the PCN, the District Engineer will expeditiously review the 
proposed compensatory mitigation plan. The District Engineer must 
review the plan within 45 days of receiving a complete PCN and 
determine whether the conceptual or specific proposed mitigation would 
ensure no more than minimal adverse effects on the aquatic environment. 
If the net adverse effects of the project on the aquatic environment 
(after consideration of the compensatory mitigation proposal) are 
determined by the District Engineer to be minimal, the District 
Engineer will provide a timely written response to the applicant 
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 submission of a 
mitigation proposal that would reduce the adverse effects on the 
aquatic environment to the minimal level; or (3) that the project is 
authorized under the NWP with specific modifications or conditions. 
Where the District Engineer determines that mitigation is required in 
order to ensure no more than minimal adverse effects on the aquatic 
environment, the activity will be authorized within the 45-day PCN 
period, including the necessary conceptual or specific mitigation or a 
requirement that the applicant submit a mitigation proposal that would 
reduce the adverse effects on the aquatic environment to the minimal 
level. When conceptual mitigation is included, or a mitigation plan is 
required under item (2) above, no work in waters of the United States 
will occur until the District Engineer has approved a specific 
mitigation plan.
    (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.
    For activities requiring notification to the District Engineer that 
result in the loss of greater than 1 acre of waters of the United 
States, the District Engineer will, upon receipt of a notification, 
provide immediately (e.g., via 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 10 calendar days from the date 
the material is transmitted to telephone or fax the District Engineer 
notice that they intend to provide substantive, site-specific comments. 
If so contacted by an agency, the District Engineer will wait an 
additional 15 calendar days before making a decision on the 
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.
    (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 \1/2\ acre 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 45-day period 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 necessary to offset impacts on the aquatic environment that 
are more than minimal 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. Examples of mitigation that may 
be appropriate and practicable include, but are not limited to: 
reducing the size of the project; establishing and maintaining wetland 
or

[[Page 39368]]

upland vegetated buffer zones to protect aquatic resource values; and 
replacing the loss of aquatic resource values by creating, restoring, 
enhancing, or preserving similar functions and values, preferably in 
the same watershed;
    (ii) To the extent appropriate, permittees should consider 
mitigation banking and other appropriate forms of compensatory 
mitigation. If the District Engineer determines that compensatory 
mitigation is necessary to offset the losses of waters of the United 
States and ensure that the net adverse effects of the authorized work 
on the aquatic environment are minimal, mitigation banks, in lieu fee 
programs, and other consolidated mitigation approaches will be the 
preferred method of providing compensatory mitigation, unless the 
District Engineer determines that activity-specific compensatory 
mitigation is more appropriate, based on what is best for the aquatic 
environment. These types of mitigation are preferred because they 
involve larger blocks of protected aquatic environment, are more likely 
to meet the mitigation goals, and are more easily checked for 
compliance. If a mitigation bank, in lieu fee program, or other 
consolidated mitigation approach is not available in the watershed, the 
District Engineer will consider other appropriate forms of compensatory 
mitigation to offset the losses of waters of the United States to 
ensure that the net adverse effects of the authorized work on the 
aquatic environment are minimal. In addition, compensatory mitigation 
must address wetland impacts, such as functions and values, and cannot 
be 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 14, 
\1/2\ acre of wetlands cannot be created to change a \3/4\acre loss of 
wetlands to a \1/4\ acre loss; however, \1/2\-acre of created wetlands 
can be used to reduce the impacts of a \1/3\-acre loss of wetlands). If 
the prospective permittee is required to submit a compensatory 
mitigation proposal with the PCN, the proposal may be either conceptual 
or detailed. (Refer to General Condition 19 for additional information 
concerning mitigation requirements for the NWPs.)
    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; and (c) The 
signature of the permittee certifying the completion of the work and 
mitigation.
    15. Use of Multiple Nationwide Permits. The use of more than one 
NWP for a single and complete project is prohibited, except when the 
acreage loss of waters of the United States authorized by the NWPs does 
not exceed the acreage limit of the NWP with the highest specified 
acreage limit. For example, if a road crossing over tidal waters is 
constructed under NWP 14, with associated bank stabilization authorized 
by NWP 13, the maximum acreage loss of waters of the United States for 
the total project cannot exceed \1/3\ acre.
    16. Water Supply Intakes. No activity, including structures and 
work in navigable waters of the United States or discharges of dredged 
or fill material, may occur in the proximity of a public water supply 
intake except where the activity is for repair of the public water 
supply intake structures or adjacent bank stabilization.
    17. Shellfish Beds. No activity, including structures and work in 
navigable waters of the United States or discharges of dredged or fill 
material, may occur in areas of concentrated shellfish populations, 
unless the activity is directly related to a shellfish harvesting 
activity authorized by NWP 4.
    18. Suitable Material. No activity, including structures and work 
in navigable waters of the United States or discharges of dredged or 
fill material, may consist of unsuitable material (e.g., trash, debris, 
car bodies, asphalt, etc.) and material used for construction or 
discharged must be free from toxic pollutants in toxic amounts (see 
Section 307 of the Clean Water Act).
    19. Mitigation. Activities, including structures and work in 
navigable waters of the United States or 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). 
Furthermore, the District Engineer will require restoration, creation, 
enhancement, or preservation of other aquatic resources in order to 
offset the authorized impacts, at least to the extent that adverse 
environmental effects to the aquatic environment are minimal. An 
important element of any mitigation plan for projects in or near 
streams or other open waters is the requirement of vegetated buffers 
(wetland, upland, or both) adjacent to the open water areas. The 
vegetated buffer should consist of native species and will constitute a 
portion, as determined by the District Engineer, of the required 
compensatory mitigation. The District Engineer will determine the 
proper width of the vegetated buffer and in which cases it will be 
required. Normally, the vegetated buffer will be 50 to 125 feet wide. 
(Refer to paragraph (g) of General Condition 13 for additional 
information concerning mitigation requirements for the NWPs.)
    20. Spawning Areas. Activities, including structures and work in 
navigable waters of the United States or discharges of dredged or fill 
material, in spawning areas during spawning seasons must be avoided to 
the maximum extent practicable. Activities that result in the physical 
destruction (e.g., excavate, fill, or smother downstream by substantial 
turbidity) of an important spawning area are not authorized.
    21. Management of Water Flows: To the maximum extent practicable, 
the project must be designed to maintain preconstruction downstream 
flow conditions (e.g., location, capacity, and flow rates). 
Furthermore, the project must not permanently restrict or impede the 
passage of normal or expected high flows (unless the primary purpose of 
the fill is to impound waters) and the structure or discharge of 
dredged or fill material must withstand expected high flows. The 
project must provide, to the maximum extent practicable, for retaining 
excess flows from the site and for maintaining surface flow rates from 
the site similar to preconstruction conditions. To the maximum extent 
practicable, the authorized work must not increase water flows from the 
project site, relocate water, or redirect water flow beyond 
preconstruction conditions, to reduce adverse effects such as flooding 
or erosion downstream and upstream of the project site.
    22. Adverse Effects From Impoundments. If the activity, including 
structures and work in navigable waters of the United States or 
discharge of dredged or fill material, 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.
    23. Waterfowl Breeding Areas. Activities, including structures and 
work in navigable waters of the United States or discharges of dredged 
or fill material, into breeding areas for migratory waterfowl must be 
avoided to the maximum extent practicable.
    24. Removal of Temporary Fills. Any temporary fills must be removed 
in their

[[Page 39369]]

entirety and the affected areas returned to their preexisting 
elevation.
    25. Designated Critical Resource Waters. Critical resource waters 
include, NOAA-designated marine sanctuaries, National Estuarine 
Research Reserves, National Wild and Scenic Rivers, critical habitat 
for Federally listed threatened and endangered species, coral reefs, 
State natural heritage sites, and outstanding national resource waters 
or other waters officially designated by a State as having particular 
environmental or ecological significance and identified by the District 
Engineer after notice and opportunity for public comment.
    (a) Except as noted below, discharges of dredged or fill material 
into waters of the United States are not authorized by NWPs 7, 12, 14, 
16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and 44 for any activity within, 
or directly affecting, critical resource waters, including wetlands 
adjacent to such waters. Discharges of dredged or fill materials into 
waters of the United States may be authorized by the above NWPs in 
National Wild and Scenic Rivers if the activity complies with General 
Condition 7. Further, such discharges may be authorized in designated 
critical habitat for Federally listed threatened or endangered species 
if the activity complies with General Condition 11 and the U.S. Fish 
and Wildlife Service or the National Marine Fisheries Service has 
concurred in a determination of compliance with this condition.
    (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 
34, 36, 37, and 38, notification is required in accordance with General 
Condition 13, for any activity proposed in the designated critical 
resource waters including wetlands adjacent to those waters. The 
District Engineer may authorize activities under these NWPs only after 
he determines that the impacts to the critical resource waters will be 
no more than minimal.
    26. Impaired Waters. Impaired waters are those waters of the United 
States that have been identified by States or Tribes through the Clean 
Water Act Section 303(d) process as impaired due to nutrients, organic 
enrichment resulting in low dissolved oxygen concentration in the water 
column, sedimentation and siltation, habitat alteration, suspended 
solids, flow alteration, turbidity, or the loss of wetlands. For the 
purposes of this general condition, the impaired waterbody includes any 
adjacent wetlands.
    (a) Discharges of dredged or fill material causing the loss of more 
than one acre of impaired waters of the United States, including 
adjacent wetlands to such impaired waters, except for activities 
authorized by NWP 3 in such waters, are not authorized by nationwide 
permit.
    (b) For discharges of dredged or fill material causing the loss of 
less than one acre of impaired waters of the United States, including 
adjacent wetlands to such impaired waters, or any activity authorized 
by NWP 3 in such waters, it is presumed that the project will, unless 
clearly demonstrated otherwise, directly or indirectly result in the 
further impairment of the listed water. Such activities in an impaired 
water or adjacent wetlands will be not be authorized by nationwide 
permit, unless the District Engineer determines that the prospective 
permittee has clearly demonstrated that the authorized project will not 
result in the further impairment of the listed water. For such 
discharges, the prospective permittee must notify the District Engineer 
in accordance with General Condition 13. In the notification to the 
District Engineer, the prospective permittee must submit a statement 
explaining how the proposed project, excluding mitigation, will not 
result in further impairment. Also, in accordance with the procedures 
in paragraph (e) of General Condition 13, the District Engineer will 
coordinate with the State 401 agency for NWP activities resulting in 
the loss of greater than \1/4\ acre of impaired waters of the United 
States. In addition, mitigation for any permitted discharges in 
impaired waters or their adjacent wetlands should be designed to offset 
impacts to aquatic functions and values being impacted by the project, 
as well as contribute to the reduction of sources of pollution 
contributing to the impairment (e.g., by restoring wetlands that 
intercept non-point sources of sediment or nutrient laden runoff).
    27. Fills Within the 100-year Floodplain. The 100-year floodplain 
will be defined by an up to date Federal Emergency Management Agency 
(FEMA) Flood Insurance Rate Map, or in the absence of such map, the 
appropriate local floodplain authority through a licensed professional 
engineer.
    (a) Except as provided below, discharges of dredged or fill 
material into waters of the United States resulting in permanent above-
grade fills in the 100-year floodplain are not authorized by NWPs 21, 
29, 39, 40, 42, 43, and 44. Prospective permittees must notify the 
District Engineer in accordance with General Condition 13, of any 
discharge of dredged or fill material in 100-year floodplains as 
defined above. The notification must include documentation that the 
proposed project will not involve discharges of dredged or fill 
material into waters of the United States resulting in permanent, 
above-grade fills in waters of the United States within the FEMA mapped 
100-year floodplain. For those areas where no FEMA map exists or the 
map is out of date (e.g., the map no longer reflects current flooding 
conditions), the documentation should be from the local floodplain 
authority (or local official with authority to issue development 
permits within the floodplain). Based on such documentation, the 
District Engineer will make the final determination as to whether the 
proposed project is actually located within the 100-year floodplain.
    (b) For NWPs 12 and 14, where there are discharges of dredged or 
fill material resulting in permanent, above-grade wetland fills in 
waters of the United States within the 100-year floodplain, it is 
presumed that such discharges will result in more than minimal adverse 
effects. Such discharges are not authorized by NWPs 12, and 14, unless 
the District Engineer determines that the prospective permittee has 
clearly demonstrated that the project, and associated mitigation, will 
not decrease the flood-holding capacity and no more than minimally 
alter the hydrology, flow regime, or volume of waters associated with 
the floodplain. Prospective permittees attempting to rebut this 
presumption must notify the District Engineer in accordance with 
General Condition 13. The notification must include documentation, 
which demonstrates that the project will not result in increased 
flooding or more than minimally alter floodplain hydrology or flow 
regimes. This documentation must include proof that FEMA, or a state or 
local floodplain authority through a licensed professional engineer, 
has approved the proposed project and provided a statement that the 
project does not increase flooding or more than minimally alter 
floodplain hydrology or flow regimes.
    (c) Notwithstanding (a) and (b) above, projects located in the 100-
year floodplain at a point in a watershed which drains less than one 
square mile are not subject to this condition.

D. Further Information

    1. District engineers have authority to determine if an activity 
complies with the terms and conditions of an NWP.
    2. NWPs do not obviate the need to obtain other Federal, State, or 
local permits, approvals, or authorizations required by law.

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    3. NWPs do not grant any property rights or exclusive privileges.
    4. NWPs do not authorize any injury to the property or rights of 
others.
    5. NWPs do not authorize interference with any existing or proposed 
Federal project.

E. Definitions

    Aquatic bench: Aquatic benches are those shallow areas around the 
edge of a permanent pool stormwater management facility that support 
aquatic vegetation, both submerged and emergent.
    Best management practices: Best Management Practices (BMPs) are 
policies, practices, procedures, or structures implemented to mitigate 
the adverse environmental effects on surface water quality resulting 
from development. BMPs are categorized as structural or non-structural. 
A BMP policy may affect the limits on a development.
    Compensatory mitigation: For purposes of Section 10/404, 
compensatory mitigation is the restoration, creation, enhancement, or 
in exceptional circumstances, preservation of wetlands and/or other 
aquatic resources for the purpose of compensating for unavoidable 
adverse impacts which remain after all appropriate and practicable 
avoidance and minimization has been achieved.
    Creation: The establishment of a wetland or other aquatic resource 
where one did not formerly exist.
    Drainage ditch: A linear excavation or depression constructed for 
the purpose of conveying surface runoff or groundwater from one area to 
another. An ``upland drainage ditch'' is a drainage ditch constructed 
entirely in uplands (i.e., not waters of the United States) and is not 
a water of the United States, unless it becomes tidal or otherwise 
extends the ordinary high water line of existing waters of the United 
States. Drainage ditches constructed in waters of the United States 
(e.g., by excavating wetlands or stream channelization) remain waters 
of the United States even though they are heavily manipulated to 
increase drainage. A drainage ditch may be constructed in uplands or 
wetlands or other waters of the United States.
    Enhancement: Activities conducted in existing wetlands or other 
aquatic resources which increase one or more aquatic functions.
    Ephemeral stream: An ephemeral stream has flowing water only 
during, and for a short duration after, precipitation events in a 
typical year. Ephemeral stream beds are located above the water table 
year-round. Groundwater is not a source of water for the stream. Runoff 
from rainfall is the primary source of water for stream flow.
    Farm tract: A unit of contiguous land under one ownership which is 
operated as a farm or part of a farm.
    Independent utility: A test to determine what constitutes a single 
and complete project in the Corps regulatory program. A project is 
considered to have independent utility if it would be constructed 
absent the construction of other projects in the project area. Portions 
of a multi-phase project that depend upon other phases of the project 
do not have independent utility. Phases of a project that would be 
constructed even if the other phases are not built can be considered as 
separate single and complete projects with independent utility.
    Intermittent stream: An intermittent stream has flowing water 
during certain times of the year, when groundwater provides water for 
stream flow. During dry periods, intermittent streams may not have 
flowing water. Runoff from rainfall is a supplemental source of water 
for stream flow.
    Loss of waters of the United States: Waters of the United States 
that include the filled area and other waters that are permanently 
adversely affected by flooding, excavation, or drainage as a result of 
the regulated activity. Permanent adverse effects include permanent 
above-grade, at-grade, or below-grade fills that change an aquatic area 
to dry land, increase the bottom elevation of a waterbody, or change 
the use of a waterbody. The acreage of loss of waters of the United 
States is the threshold measurement of the impact to existing waters 
for determining whether a project may qualify for an NWP; it is not a 
net threshold that is calculated after considering compensatory 
mitigation that may be used to offset losses of aquatic functions and 
values. The loss of stream bed includes the linear feet of perennial or 
intermittent stream that is filled or excavated. Waters of the United 
States temporarily filled, flooded, excavated, or drained, but restored 
to preconstruction contours and elevations after construction, are not 
included in the measurement of loss of waters of the United States.
    Non-tidal wetland: A non-tidal wetland is a wetland (i.e., a water 
of the United States) that is not subject to the ebb and flow of tidal 
waters. The definition of a wetland can be found at 33 CFR 328.3(b). 
Non-tidal wetlands contiguous to tidal waters are located landward of 
the high tide line (i.e., spring high tide line).
    Open water: An area that, during a year with normal patterns of 
precipitation, has standing or flowing water for sufficient duration to 
establish an ordinary high water mark. Aquatic vegetation within the 
area of standing or flowing water is non-emergent, vegetated shallows, 
sparse, or absent. This term includes rivers, streams, lakes, and 
ponds.
    Perennial stream: A perennial stream has flowing water year-round 
during a typical year. The water table is located above the stream bed 
for most of the year. Groundwater is the primary source of water for 
stream flow. Runoff from rainfall is a supplemental source of water for 
stream flow.
    Permanent above-grade fill: A discharge of dredged or fill material 
into waters of the United States, including wetlands, that results in a 
substantial increase in ground elevation and permanently converts part 
or all of the waterbody to dry land. Structural fills authorized by 
NWPs 3, 25, 36, etc. are not included.
    Playa: A type of marsh found on the high plain of northern Texas 
and eastern New Mexico that is characterized by small, seasonally 
flooded basins with clay or fine sandy loam hydric soils and emergent 
hydrophytic vegetation.
    Prairie pothole: A type of marsh found on glacial till in 
Minnesota, Iowa, North Dakota, South Dakota, and Montana that is 
characterized by small seasonally or permanently flooded depressions 
and emergent hydrophytic vegetation.
    Preservation: The protection of ecologically important wetlands or 
other aquatic resources in perpetuity through the implementation of 
appropriate legal and physical mechanisms. Preservation may include 
protection of upland areas adjacent to wetlands as necessary to ensure 
protection and/or enhancement of the overall aquatic ecosystem.
    Project area: The acreage of land, including waters of the United 
States and uplands, utilized for the single and complete project. The 
acreage is determined by the amount of land cleared, graded, and/or 
filled to construct the single and complete project, including any 
buildings, utilities, stormwater management facilities, roads, yards, 
and other attendant features. The project area also includes any other 
land that is used in conjunction with the single and complete project, 
such as open space. Roads constructed by State or local governments for 
general public use are not included in the project area.
    Restoration: Re-establishment of wetland and/or other aquatic 
resource characteristics and function(s) at a site where they have 
ceased to exist, or exist in a substantially degraded state.

[[Page 39371]]

    Riffle and pool complex: Riffle and pool complexes are special 
aquatic sites under the 404(b)(1) Guidelines. Steep gradient sections 
of streams are sometimes characterized by riffle and pool complexes. 
Such stream sections are recognizable by their hydraulic 
characteristics. The rapid movement of water over a course substrate in 
riffles results in a rough flow, a turbulent surface, and high 
dissolved oxygen levels in the water. Pools are deeper areas associated 
with riffles. Pools are characterized by a slower stream velocity, a 
streaming flow, a smooth surface, and a finer substrate.
    Single and complete project: The term ``single and complete 
project'' is defined at 33 CFR 330.2(i) as the total project proposed 
or accomplished by one owner/developer or partnership or other 
association of owners/developers (see definition of independent 
utility). For linear projects, the ``single and complete project'' 
(i.e., a single and complete crossing) will apply to each crossing of a 
separate water of the United States (i.e., a single waterbody) at that 
location. An exception is for linear projects crossing a single 
waterbody several times at separate and distant locations: Each 
crossing is considered a single and complete project. However, 
individual channels in a braided stream or river, or individual arms of 
a large, irregularly-shaped wetland or lake, etc., are not separate 
waterbodies.
    Stormwater management: Stormwater management is the mechanism for 
controlling stormwater runoff for the purposes of reducing downstream 
erosion, water quality degradation, and flooding and mitigating the 
adverse effects of changes in land use on the aquatic environment.
    Stormwater management facilities: Stormwater management facilities 
are those facilities, including but not limited to, stormwater 
retention and detention ponds and BMPs, which retain water for a period 
of time to control runoff and/or improve the quality (i.e., by reducing 
the concentration of nutrients, sediments, hazardous substances and 
other pollutants) of stormwater runoff.
    Stream bed: The substrate of the stream channel between the 
ordinary high water marks. The substrate may be bedrock or inorganic 
particles that range in size from clay to boulders. Wetlands contiguous 
to the stream bed, but outside of the ordinary high water marks, are 
not considered part of the stream bed.
    Stream channelization: The manipulation of a stream channel to 
increase the rate of water flow through the stream channel. 
Manipulation may include deepening, widening, straightening, armoring, 
or other activities that change the stream cross-section or other 
aspects of stream channel geometry to increase the rate of water flow 
through the stream channel. A channelized stream remains a water of the 
United States, despite the modifications to increase the rate of water 
flow.
    Tidal wetland: A tidal wetland is a wetland (i.e., a water of the 
United States) that is inundated by tidal waters. The definitions of a 
wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 
328.3(f), respectively. Tidal waters rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters end where the rise and fall of the water surface 
can no longer be practically measured in a predictable rhythm due to 
masking by other waters, wind, or other effects. Tidal wetlands are 
located channelward of the high tide line (i.e., spring high tide line) 
and are inundated by tidal waters two times per lunar month, during 
spring high tides.
    Vegetated shallows: Vegetated shallows are special aquatic sites 
under the 404(b)(1) Guidelines. They are areas that are permanently 
inundated and under normal circumstances have rooted aquatic 
vegetation, such as seagrasses in marine and estuarine systems and a 
variety of vascular rooted plants in freshwater systems.
    Vernal pool: A type of marsh found in Mediterranean-type climates 
(i.e., wet winters and dry summers), especially on coastal terraces in 
southwestern California, the central valley of California, and areas 
west of the Sierra Mountains, that is characterized by shallow, 
seasonally flooded wet meadows with emergent hydrophytic vegetation.
    Waterbody: A waterbody is any area that in a normal year has water 
flowing or standing above ground to the extent that evidence of an 
ordinary high water mark is established. Wetlands contiguous to the 
waterbody are considered part of the waterbody.

[FR Doc. 99-18292 Filed 7-20-99; 8:45 am]
BILLING CODE 3710-92-P