[Federal Register Volume 66, Number 154 (Thursday, August 9, 2001)]
[Notices]
[Pages 42070-42100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19841]



[[Page 42069]]

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Part IV





Department of Defense





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Department of the Army, Corps of Engineers



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Proposal To Reissue and Modify Nationwide Permits; Notice

  Federal Register / Vol. 66, No. 154 / Thursday, August 9, 2001 / 
Notices  

[[Page 42070]]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Proposal To Reissue and Modify Nationwide Permits; Notice

AGENCY: Army Corps of Engineers, DoD.

ACTION: Notice of intent and request for comments.

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SUMMARY: The Corps of Engineers is soliciting comments for the 
reissuance of the existing Nationwide Permits (NWPs), General 
Conditions, and definitions with some modifications. The Corps of 
Engineers (Corps) reissued NWPs on December 13, 1996, Federal Register 
notice (61 FR 65874-65922). These NWPs will expire February 11, 2002, 
except as discussed below.
    In the December 13, 1996, issue of the Federal Register, the Corps 
announced its intention to replace NWP 26 with activity-specific NWPs 
before the expiration date of NWP 26. In the March 9, 2000, Federal 
Register notice (65 FR 12818-12899), the Corps published five new NWPs, 
modified six existing NWPs, modified six General Conditions, and added 
two new General Conditions to replace NWP 26. The five new NWPs (i.e., 
39, 41, 42, 43, 44) and six modified NWPs (i.e., NWPs 3, 7, 12, 14, 27, 
and 40) will expire five years from their effective date of June 7, 
2000. In order to reduce the confusion regarding the expiration of the 
NWPs and the administrative burden, it is the Corps intent to reissue 
all NWPs and General Conditions contained within this Notice, including 
those not scheduled to expire on February 11, 2002. Thus, all issued, 
reissued and modified NWPs, and General Conditions contained within 
this notice will become effective and expire on the same date. The 
reissuance process starts with today's publication of the proposed NWPs 
in the Federal Register and concurrent release of public notices by 
Corps District offices for a 45-day comment period.

DATES: Comments on the reissuance of the proposed NWPs must be received 
by September 24, 2001. The public hearing will be held at 1 p.m. on 
September 12, 2001.

ADDRESSES: Send comments to HQUSACE, ATTN: CECW-OR, 441 ``G'' Street, 
NW, Washington, DC 20314-1000. The public hearing will be held at the 
GAO Building, 441 ``G'' Street, NW, Washington, DC 20314-1000, 7th 
floor auditorium.

FOR FURTHER INFORMATION CONTACT: Mr. Rich White or Mr. Sam Collinson, 
at (202) 761-4599 or access the U.S. Army Corps of Engineers Regulatory 
Home Page at: http//:www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION: In regard to the public hearing referenced, 
the public should enter on the ``G'' Street side of the building. All 
attendees are required to show photo identification and must be 
escorted to the auditorium by Corps personnel. All attendees arriving 
between one-half hour before and one-half hour after 1 p.m. will be 
escorted to the hearing. Those arriving later than the allotted time 
will be unable to enter the building.
    The public is invited to provide comments on this notice to reissue 
and modify NWPs to the address below. The Corps is also preparing a 
voluntary Programmatic Environmental Impact Statement (PEIS) on the NWP 
Program. On July 31, 2001, the PEIS will be announced in the Federal 
Register and available on the Corps Institute for Water Resources (IWR) 
web page at http://www.iwr.usace.army.mil/iwr/Regulatory/regulintro.htm. Comment on the PEIS should be sent to IWR as indicated 
on the IWR web page or the Federal Register notice.

Background

    Section 404(e) of the Clean Water Act (CWA) is the statutory 
authority for the Secretary of the Army, after notice and opportunity 
for public hearing, to issue general permits on a nationwide basis for 
any category of activities involving discharges of dredged or fill 
material into waters of the United States (US). Such activities 
authorized by NWPs must be similar in nature, cause only minimal 
adverse environmental effects when performed separately, and have only 
minimal cumulative adverse effect on the aquatic environment. The 
Nationwide Permit (NWP) Program is designed to provide timely 
authorization for the regulated public while concurrently protecting 
the Nation's aquatic resources.
    The protection and restoration of the aquatic environment is an 
integral part of the Corps mission and a primary focus of the 
Regulatory Program. The NWP Program allows the Corps to maintain 
protection of the aquatic environment, while allowing the Corps to 
focus limited resources towards more extensive evaluation of projects 
with the potential for causing environmentally damaging adverse 
effects. Impacts to the aquatic environment may also receive additional 
protection through regional conditions, case-specific special 
conditions, and case-specific discretionary authority to require 
standard Individual Permits (i.e. for higher quality aquatic resource). 
General Permits, including NWPs, protect the aquatic environment 
because permit applicants will reduce project impacts to meet the 
restrictive requirements of the general permit. The NWP Program allows 
the Corps to authorize activities with minimal adverse environmental 
impacts in a timely manner and maintain protection of the aquatic 
environment.
    This proposal to reissue existing NWPs is a reflection of the Corps 
unequivocal commitment to its environmental protection mission and to 
aquatic resource protection. For example, twenty-one of the NWPs 
contain provisions within the terms and conditions that establishes a 
threshold level requiring ``notification'' to the Corps before a 
regulated activity is authorized to commence. This provision gives the 
Corps the opportunity to thoroughly evaluate NWP authorizations to 
ensure that the activity will have no more than a minimal adverse 
effect on the aquatic environment, individually and cumulatively. This 
``notification'' includes submitting to the Corps an application 
containing detailed or conceptual descriptions of proposed activities, 
and the impacts to aquatic systems. A ``notification'' to the Corps may 
be required for filling aquatic areas, such as stream beds (whether 
perennial, intermittent, or ephemeral) and wetlands. The Corps reviews 
each ``notification'' and this case-by-case review typically results in 
case specific conditions requiring mitigation to ensure that impacts to 
the aquatic environment are no more than minimal. It may also result in 
the Corps asserting discretionary authority to require an Individual 
Permit if the Corps determines, based on the information provided in 
the notification, that adverse impacts will be more than minimal, 
either individually or cumulatively. Excavation in waters of the US 
requires a permit (and may require ``notification'') if the activity 
involves a discharge of dredged material resulting in more than 
``incidental fallback'' (66 FR, 4550-4575).
    In addition to the ``notification'' provision, regional conditions 
may be developed by District Engineers to take into account regional 
differences in aquatic resource functions and values across the country 
and to put mechanisms into place to protect them. After identifying the 
geographic extent of ``higher'' quality aquatic systems, District 
Engineers can either change ``notification'' thresholds, or require 
``notification'' for all activities within a particular watershed or 
waterbody to

[[Page 42071]]

ensure that NWP use and authorization only occurs for activities with 
minimal adverse effects, individually and cumulatively. Furthermore, 
Corps Division Engineers can suspend or revoke the use of certain NWPs 
within the bounds of high value aquatic systems if the use of NWPs 
would result in more than minimal adverse effects to the aquatic 
environment, individually or cumulatively.
    Although minimal adverse effects are anticipated for the NWP 
Program, the use of NWPs may still affect the aquatic environment. 
Therefore, General Condition 19, ``Mitigation'', describes how District 
Engineers will require compensatory mitigation with other aquatic 
resources or vegetated buffers in order to offset the authorized 
impacts to the extent necessary to ensure minimal adverse effects on 
the aquatic environment. The purpose of this condition is twofold; one, 
to maintain national goals of no net loss of functions and values, and 
two, to offset any cumulative adverse effects to the aquatic 
environment. The Corps has determined that the NWP authorizations, 
along with the ability to place regional conditions or case-specific 
conditions, or require Individual Permits as appropriate, will not 
cause more than minimal individual or cumulative adverse effects to 
waters of the US. Compensatory mitigation can be accomplished through 
the restoration, creation, enhancement, and/or 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.

Vegetated Buffers

    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, both of which help protect 
and enhance local water quality and aquatic habitat features for a 
particular 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 use of vegetated buffers as mitigation for NWP activities is 
discussed in General Condition 19. Vegetated buffers next to streams 
and other open waters provide many of the same functions that wetlands 
provide. In fact, many vegetated buffers will be wetlands. Due to their 
proximity to open waters, vegetated buffers are more effective at 
protecting open waters than wetlands distant from those open waters. 
The following is a list of the functions provided by vegetated buffers 
published in the July 21, 1999, Federal Register notice to reissue 
NWPs. In general, vegetated buffers next to streams and open waters 
provide the following functions: (1) Reduce adverse effects to water 
quality by removing nutrients and pollutants from surface runoff; (2) 
reduce concentrations of nutrients and pollutants in subsurface water 
that flows into streams and other open waters; (3) moderate storm flows 
to streams, which reduces downstream flooding and degradation of 
aquatic habitat; (4) stabilize soil (through plant roots), which 
reduces erosion in the vicinity of the open waterbody; (5) provide 
shade to the waterbody, which moderates water temperature changes and 
provides a more stable aquatic habitat for fish and other aquatic 
organisms; (6) provide detritus, which is a food source for many 
aquatic organisms; (7) provide large woody debris from riparian zones, 
which furnishes cover and habitat for aquatic organisms and may cause 
the formation of pools in the stream channel; (8) provide habitat to a 
wide variety of aquatic and terrestrial species; (9) trap sediments, 
thereby reducing degradation of the substrate that provides habitat for 
fish and other aquatic organisms (e.g., some fish species depend upon 
gravel stream beds for spawning habitats); and (10) provide corridors 
for movement and dispersal of many species of wildlife. In addition, 
vegetated buffers next to streams may provide additional flood storage 
capacity and groundwater recharge functions.
    The Corps statutory authority to require vegetated buffers next to 
streams and other open waters originates in the goal of the CWA which 
is to restore and maintain the chemical, physical and biological 
integrity of Nation's waters. This goal is stated in Section 101 of the 
CWA and is applicable to all sections of the CWA, including Section 
404. The establishment of vegetated buffers next to streams and other 
open waters helps maintain the chemical, physical, and biological 
integrity of our waters. The Corps believes that requiring vegetated 
buffers along flowing streams and other open waters is one of the most 
important forms of compensatory mitigation. Requiring the establishment 
of vegetated buffers by the Corps, as mitigation, is one of the best 
ways that the Corps can ensure the CWA Section 101 goals are met. For 
all of these reasons, the Corps is proposing to revise General 
Condition 19 to allow a waiver of the requirement of one-for-one 
wetlands mitigation, in cases where the Corps determines that some 
other form of mitigation, such as establishment of vegetated buffers, 
is more appropriate. The Corps requests comments on this proposed 
revision.

NEPA Compliance

    The Corps recognizes that there has been, and continues to be, 
substantial interest by the public regarding the potential 
environmental effects associated with the implementation of the Corps 
NWP Program. The Corps is committed to ensuring that no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively, will occur and we will continue to carefully evaluate 
potential environmental effects of the program as we move to reissue 
the NWPs. The Corps has prepared Environmental Assessments (EA) for 
each issued or reissued NWP in the past, including those issued in 1996 
and 2000. Those EAs each resulted in a Finding of No Significant Impact 
(FONSI). The Corps will again prepare EAs for each proposed reissuance 
of a NWP in this proposal to determine whether an Environmental Impact 
Statement (EIS) should be prepared. These EAs will consider the 
environmental effects of each NWP from a national perspective and each 
Corps District and Division Engineer will supplement the EAs to 
evaluate regional environmental effects. Where more than minimal 
adverse effects on the aquatic environment may occur, Corps Division 
Engineers will establish regional conditions to further protect the 
aquatic environment and ensure that any adverse effects will be no more 
than minimal.
    We are continuing to improve data collection and monitoring efforts 
associated with the NWP Program. Our efforts include accumulating 
information on the verified uses of the NWPs, acreage impacts, affected 
resource types, the geographic location of the activities, and the type 
of mitigation provided. This information is important, and was used as 
the Corps made permitting and policy decisions regarding the continued 
role of the Corps NWP Program. The objective is to ensure that the NWP 
Program continues to authorize only those activities with no more than 
minimal individual and cumulative adverse effects on the aquatic 
environment.
    The Corps determined that preparation of an EIS was not required, 
in both 1996 and 2000, for issuing any

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of the specific NWPs. In addition, the Corps made a FONSI on June 23, 
1998, for the NWP Program. This finding is determined on the basis that 
the NWP Program has limitations and procedures that ensure the Corps 
authorizes only those activities that have no more than minimal adverse 
effects on the aquatic environment, both individually and cumulatively. 
This threshold (i.e. no more than minimal adverse effects) is lower 
than the threshold for requiring an EIS (a copy of the FONSI is 
available on our web page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/nw98fons.htm).
    The Corps is committed to ensuring and demonstrating that the NWP 
Program, as a whole, authorizes only those activities that result in 
minimal individual and cumulative adverse effects on the aquatic 
environment. Consistent with this commitment, in March of 1999, the 
Corps began preparation of a PEIS to evaluate procedures and processes, 
provided information on the overall environmental impacts of the NWP 
Program using available data from the Corps databases, and evaluate how 
the Corps uses NWPs, Regional General Permits, Letters of Permission, 
or other mechanisms to authorize projects. Thus, environmental impacts, 
alternative methods of operating the NWP Program, as well as shifting 
authorizations that are currently done under the NWP Program to other 
permitting methods, will be evaluated. The Corps recognizes that the 
PEIS will provide information useful to those commenting on the 
proposed reissuance of the NWPs, and thus will make the draft PEIS 
available for comment by July 31, 2001, and will provide for a 30 day 
overlap in the comment periods of today's NWP package and the draft 
PEIS. The draft PEIS will be announced in the Federal Register, and 
will be available on the Corps Institute for Water Resources web page 
http://www.iwr.usace.army.mil/iwr/Regulatory/regulintro.htm. We 
anticipate final PEIS completion by early 2002.

Executive Order 11988--Floodplain Management

    The Corps believes that the NWP Program, with its national, 
regional and case-by-case limitations, procedures and mitigation, fully 
complies with Executive Order 11988. This includes the ``Floodplain 
Management Guidelines for Implementing Executive Order 11988'' issued 
by the U.S. Water Resources Council, and ``Further Advice on Executive 
Order 11988 Floodplain Management'' issued by the Interagency Task 
Force on Floodplain Management. ``Further Advice on Executive Order 
11988 Floodplain Management'' states that class review of repetitive 
actions proposed in 100-year floodplains can be conducted in full 
compliance with Executive Order 11988. The Corps is currently 
conducting a formal class review of the NWPs and will summarize the 
results of the review in the preamble to the final rule.

Process for Reissuing the NWPs

    The Corps is proposing to reissue all NWPs, General Conditions, and 
definitions with some modifications. We are proposing to modify NWPs 
14, 21, 27, 31, 37, 39, 40, 42, and 43. In addition, we are proposing 
to modify General Conditions 4, 9, 13, 19, 21, 26, and add a new 
General Condition 27.
    The Corps reissued NWPs on December 13, 1996, with most of the NWPs 
contained within that notice set to expire February 11, 2002. On June 
7, 2000, the Corps issued five new NWPs to replace NWP 26, modified six 
existing NWPs, modified six General Conditions, and added two new 
General Conditions. The five new and six modified NWPs will expire five 
years from their effective date of June 7, 2000. In order to reduce the 
confusion regarding when three separate sets of NWPs expire, it is the 
Corps intent to consolidate all issued, reissued and modified NWPs, and 
General Conditions contained within this notice will become effective 
and expire on the same date.
    The reissuance process starts with today's publication of the 
proposed NWPs in the Federal Register and concurrent release of public 
notices by Corps District Offices for a 45-day comment period. There 
will be a public hearing in Washington, D.C. to solicit comments on the 
proposed NWPs. We will review the comments received in response to this 
Federal Register notice and the public hearing with a task force that 
includes Corps Regulatory field personnel. This process will take 
approximately 60-days. Upon completion of our initial review of the 
comments, we will complete a draft of the final NWPs and solicit 
comments from interested Federal agencies. The final version of the 
NWPs will be published in the Federal Register by November 13, 2001. 
The NWPs will then become effective by February 11, 2002. This schedule 
provides a 90-day period for the state 401/CZM agencies to complete 
their certification decisions. Also within this 90-day period, the 
Corps will finalize its regional conditions and certify that the NWPs, 
with any regional conditions or geographic revocations, will only 
authorize activities with minimal adverse effects on the aquatic 
environment, both individually and cumulatively. The NWPs will become 
effective at the end of the 90-day period. The Corps regional 
conditioning and 401/CZM certification processes are discussed 
elsewhere in this notice.

Regional Conditioning of Nationwide Permits

    The Corps is committed to reissuing NWPs that result in no more 
than minimal adverse effects on the aquatic environment. An important 
element in achieving this goal is the successful implementation of the 
regional conditioning process. The coordinated involvement of tribes, 
state and Federal agencies, Corps Districts, and solicitation of public 
comments, assist the Corps in identifying appropriate regional 
conditions on the reissued NWPs. Moreover, effective regional 
conditioning protects aquatic systems at the local level and helps 
ensure that Corps Districts remain in compliance with statutory 
requirements that NWPs have no more than minimal adverse effects on the 
aquatic environment, both individually and cumulatively.
    There are two types of regional conditions. Conditions added as a 
result of states Section 401 Water Quality Certification/Coastal Zone 
Management Act (401/CZM) concurrence. Second, by Corps Divisions, in 
coordination with Corps Districts, state and Federal agencies, tribes, 
and the public. In accordance with Corps regulations at 33 CFR 330.5 
(c) & (d), any state 401/CZM conditions for an NWP become regional 
conditions for that NWP. The Corps District public notices concerning 
the final NWPs must include any 401/CZM regional conditions. Division 
Engineers will add Corps required regional conditions to NWPs after a 
public notice comment period.
    Each Corps District will issue a public notice for the proposed 
reissuance of NWPs approximately concurrent with this Federal Register 
notice. The public notice will include (1) Corps proposed regional 
conditions, if any, that are applicable to any of the proposed NWPs; 
and (2) the existing Corps regional conditions, if any. This initial 
public notice will also request comments or suggestions for additional 
Corps regional conditions for the NWPs. The initial public notice may 
also include, for informational purposes only, any state or tribal 401/
CZM regional conditions. However, the public does not have the 
opportunity to comment on the state or tribal 401/CZM regional 
conditions through the Corps. A separate state or tribal process

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involves the public regarding state or tribal 401/CZM certifications, 
including 401/CZM regional conditions. Each Corp District will announce 
the final state or tribal 401/CZM determinations, including any 401/CZM 
regional conditions in the final NWP public notice.
    The initial public notices will request that the general public and 
other agencies submit comments on the NWPs and any regional conditions 
proposed by the Corps. These comments should suggest additional 
implementation of Corps regional conditions in specific watersheds or 
waterbodies, or possibly suspending or revoking NWPs in certain 
geographic areas, specific watersheds or waterbodies. Comments should 
have data to support the need to the extent practicable.
    Before the effective date of NWPs, each Division Engineer will 
prepare supplemental decision documents addressing the regional 
conditions for each NWP. Each decision document will include a 
statement by the Division Engineer, certifying that any Corps regional 
conditions imposed on the NWPs will ensure that those NWPs will 
authorize only activities with minimal adverse effects. After the 
Division Engineer establishes the Corps regional conditions, each Corps 
District will issue final public notices announcing the final 401/CZM 
determinations, including 401/CZM regional conditions and Corps 
regional conditions. Each Corps District may propose additional Corps 
regional condition in future public notices, as they determine 
necessary.
    Corps regional conditions can be applied to large geographic areas. 
Examples include a state or county, particular watersheds or waterbody 
(e.g. Lower Kaskaskia River basin or Carlyle Lake), or a specific type 
of water of the US (e.g., Meramec Spring) focusing on issues relating 
to the aquatic environment within each Corps District. The regional 
conditions are used to ensure that the effects of the NWP Program on 
the aquatic environment are minimal, both individually and 
cumulatively. Examples of Corps regional conditions that may be used by 
Corps Districts to restrict the use of the NWPs include:
     Restricting the types of waters of the US where the NWPs 
may be used (e.g., fens, hemi-marshes, bottomland hardwoods, etc.) or 
prohibiting the use of some or all of the NWPs in those types of waters 
or in specific watersheds;
     Restricting or prohibiting the use of NWPs in areas 
covered by a Special Area Management Plan, or an Advanced 
Identification study with associated Regional General Permits;
     Adding ``notification'' requirements to NWPs to require 
pre-construction notification (PCN) for all work in certain watersheds 
or certain types of waters of the US, or lowering the PCN threshold;
     Reducing the acreage thresholds in certain types of waters 
of the US;
     Revoking certain NWPs on a geographic or watershed basis;
     Restricting activities authorized by NWPs to certain times 
of the year in certain waters of the US, to minimize the adverse 
effects of those activities on areas used by fish or shellfish for 
spawning, nesting wildlife, or other ecologically cyclical events.
    The Corps regional conditions implemented by each Corps District do 
not supersede the General Conditions of the NWP Program. The General 
Conditions address the Endangered Species Act, the National Historic 
Preservation Act of 1966, the Wild and Scenic Rivers Act, Section 401 
Water Quality Certification, Coastal Zone Management, navigation, and 
other applicable laws. Given the extent of the coordination already 
mandated by Federal law, the addition of regional conditions at the 
state, tribal, watershed, or geographic level will help ensure that 
important public interest factors are considered when evaluating 
projects for NWP authorization.
    Comments on regional issues and regional conditions must be sent to 
the appropriate District Engineer, as indicated below:

Alabama

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

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

Louisana

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

[[Page 42074]]

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-OR-F, 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

Tribal, State and CZM Certification of Nationwide Permits

    Tribal or state Water Quality Certification pursuant to Section 401 
of the CWA, or waiver thereof, is required for activities authorized by 
NWPs which may result in a discharge into waters of the US. In 
addition, any state with a Federally approved Coastal Zone Management 
(CZM) plan must agree with the Corps determination that activities 
authorized by NWPs which are within, or will affect any land or water 
uses or natural resources of the state's coastal zone, are consistent 
with the CZM plan. Section 401 Water Quality Certifications and/or CZM 
consistency determinations may be conditioned, denied, or issued for 
parts of the NWPs.
    The Corps believes that, in general, the activities authorized by 
the NWPs will not violate tribal or state water quality standards and 
will be consistent with state CZM plans. The NWPs are conditioned to 
ensure that adverse environmental effects will be minimal and are the 
types of activities that would be routinely authorized, if evaluated 
under the Individual Permit process. The Corps recognizes that in some 
tribes or states there will be a need to add regional conditions, or 
individual tribal or state review for some activities to ensure 
compliance with water quality standards or consistency with CZM plans. 
As a practical matter, the Corps intends to work with tribes or states 
to ensure that NWPs include the necessary conditions so that the tribe 
or state can issue 401 Water Quality Certifications or CZM consistency 
agreements. Therefore, each Corps District will initiate discussions 
with their respective tribe or state, as appropriate, following 
publication of this proposal to discuss issues of concern and identify 
regional modification and other approaches to the scope of waters, 
activities, discharges, and ``notification'', as appropriate, to 
resolve these issues. Note some states have adopted State Programmatic 
General Permits (SPGP) and the NWPs have been wholly or partially 
revoked. Concurrent with today's proposal, Corps Districts may be 
proposing modification or revocation of the NWPs in states where SPGPs 
will be

[[Page 42075]]

used in place of some or the entire NWP Program.

Section 401 of the Clean Water Act (CWA)

    This Federal Register notice serves as the Corps application to the 
tribes, states, or EPA, where appropriate, for Section 401 Water 
Quality Certification of the activities authorized by these NWPs. The 
tribes, states, and EPA, where appropriate, are requested to issue, 
deny, or waive certification pursuant to 33 CFR 330.4(c) for these 
NWPs.
    If a state denies a Section 401 Water Quality Certification for an 
NWP within that state, then the Corps will deny NWP authorization for 
the affected activities within that state without prejudice. However, 
when applicants request approval of such activities, and the Corps 
determines that those activities meet the terms and conditions of the 
NWP, the Corps will issue provisional NWP verification letters. The 
provisional verification letter will contain general and regional 
conditions as well as any project specific conditions the Corps 
determines are necessary. The Corps will notify the applicant that they 
must obtain a project specific Section 401 Water Quality Certification, 
or waiver thereof, before starting work in waters of the US. Anyone 
wanting to perform such activities where a ``notification'' is not 
required must first obtain a project specific Section 401 Water Quality 
Certification or waiver thereof from the state before proceeding under 
the NWP. This requirement is provided at 33 CFR 330.4(c).

Section 307 of the Coastal Zone Management Act (CZMA)

    This Federal Register notice serves as the Corps determination that 
the activities authorized by these NWPs are, to the maximum extent 
practicable, consistent with states' CZM Programs. This determination 
is contingent upon the addition of state CZM conditions and/or regional 
conditions, or the issuance by the state of an individual consistency 
concurrence, where necessary. The states are requested to agree or 
disagree with the consistency determination following 33 CFR 330.4(d) 
for these NWPs.
    The Corps CZMA consistency determination only applies to NWP 
authorizations for activities that are within, or affect, any land, 
water uses or natural resources of a state's coastal zone. NWP 
authorizations for activities that are not within or would not affect a 
states' coastal zone are not contingent on such states' agreement or 
disagreement with the Corps consistency determinations.
    If a state disagrees with the Corps consistency determination for 
an NWP, then the Corps will deny authorization for the activities 
within or that would affect the coastal zone without prejudice. 
However, when applicants request approval of such activities, and the 
Corps determines that those activities meet the terms and conditions of 
the NWP, the Corps will issue provisional NWP verification letters. The 
provisional verification letter will contain general and regional 
conditions as well as any project specific conditions the Corps 
determines are necessary. The Corps will notify the applicant that they 
must obtain a project specific CZMA consistency determination before 
starting work in waters of the US. Anyone wanting to perform such 
activities where ``notification'' is not required must present a 
consistency certification to the appropriate state agency for 
concurrence. Upon concurrence with such consistency certifications by 
the state, the activity would be authorized by the NWP. This 
requirement is provided at 33 CFR 330.4(d).

Discussion for Comment

Nationwide Permits

    We are proposing to reissue, without any changes to the terms and 
conditions, all NWPs and NWP General Conditions not discussed in the 
following preamble. The following discussion focuses only on specific 
NWP or NWP General Condition changes or modifications being proposed 
for the reissued permits.
14. Linear Transportation Projects
    The Corps is proposing to simplify NWP 14. We are proposing to 
simplify the terms and conditions for authorizing discharges of dredged 
or fill material for public and private projects in tidal and non-tidal 
waters. We propose to treat both public and private transportation 
projects the same for tidal and non-tidal waters. We believe that the 
impacts to the aquatic environment for transportation projects will be 
essentially the same whether the project is public or private, although 
on average we would expect the private transportation projects to be 
smaller. However, we continue to believe that a distinction needs to be 
made for such projects concerning tidal and non-tidal waters. 
Therefore, we are proposing to retain the smaller acreage limit in the 
existing permit for tidal waters. For all linear transportation 
projects in non-tidal waters, the acreage limit would be \1/2\-acre, 
and for tidal waters, the acreage limit would be \1/3\-acre. This 
change would allow private transportation projects in non-tidal waters 
to have a maximum acreage of \1/2\-acre instead of the current \1/3\-
acre. Our proposal will simplify three categories of waters (tidal, 
private, and public non-tidal) into two categories (tidal and non-
tidal). There would be no change in acreage limits for other 
transportation projects.
    To eliminate varying interpretations of the 200 linear-feet 
prohibition, we are proposing to remove this prohibition from the NWP. 
Although we propose simplifying the basis for use of this permit, we do 
not anticipate any significant practical effect from this change as the 
limiting factor contained in the terms and conditions of NWP 14 is 
generally the acreage limitation. The ``notification'' threshold (i.e. 
\1/10\-acre for areas without special aquatic sites, and all proposed 
projects that would involve fill in special aquatic sites) allows the 
Corps to do a case-by-case review. This will ensure that any NWP 14 
activity that exceeds this threshold will have a minimal adverse effect 
on the aquatic environment. Very few projects exceeding 200 linear-feet 
would remain below the \1/10\-acre ``notification'' threshold. For 
example, a 200'' by 22'' wide transportation crossing would impact 
4,400 sq. ft. (i.e., \1/10\-acre). Because the Corps will review, case-
by-case, every project involving \1/10\-acre of impact (and every 
project of any size involving special aquatic sites), the 200 linear-
foot prohibition is largely superfluous. In a few isolated cases, it 
may preclude use of the permit in situations where impacts are minimal, 
and for this reason (as well as simplification) we are proposing to 
remove it.
    Some agencies have expressed concern with development pressure in 
coastal areas, and the importance of the tidal ecosystems. We agree 
with the importance of tidal ecosystems and we are not proposing to 
increase acreage thresholds in tidal waters. We do not believe that 
standardizing acreage limits for public and private projects in non-
tidal waters and removing the linear-feet prohibition will cause more 
than minimal adverse effect when considered in conjunction with the \1/
10\-acre ``notification'' provision contained in the terms and 
conditions of the NWP. We believe that this ``notification'' 
requirement and the NWP General Conditions, in addition to other 
mechanisms such as regional conditions developed by Corps Districts, 
will ensure that authorized impacts have no more than minimal adverse 
effect on the aquatic environment.

[[Page 42076]]

    Features of the proposed work that are integral to the linear 
transportation project, such as interchanges, stormwater detention 
basins, rail spurs or water quality enhancement measures, may also be 
authorized by this permit. This permit may not be used to authorize 
non-linear features commonly associated with transportation projects, 
such as vehicle maintenance or storage buildings, parking lots, train 
stations, or hangars.
    For all linear transportation projects, the Corps has the authority 
to assert discretionary authority when evaluating the magnitude of 
adverse effects on the aquatic environment (33 CFR 330.1(d), 330.4(e) & 
330.5). The Corps Districts will determine on a case-by-case basis 
whether this NWP may be used for a single and complete project, or 
whether an Individual Permit may be required. The definition of the 
term ``single and complete project'' for linear projects can be found 
at 33 CFR 330.2(i). Corps Districts may also exercise discretionary 
authority over any project that, in the determination of the District 
Engineer, has the potential to result in more than minimal impact on 
the aquatic environment, after considering any mitigation. The Corps 
request comments on raising the acreage threshold to \1/2\-acre for 
private roads in non-tidal waters, and removing the 200 linear-foot 
prohibition.
21. Surface Coal Mining Activities
    The Corps is proposing two changes to this NWP to ensure the proper 
focus of the NWP and to ensure adequate mitigation will be required 
resulting in no more than minimal adverse effects on the aquatic 
environment. Both of these changes will increase protection of the 
aquatic environment. First, the Corps is proposing to require a 
specific determination by the District Engineer on a case-by-case basis 
that the activity complies with the terms and conditions of this NWP 
and that adverse environmental effects are minimal both individually 
and cumulatively after consideration of any required mitigation before 
any project can be authorized. Second, the Corps is also proposing to 
add clarification to NWP 21 that the Corps will require mitigation when 
evaluating surface coal mining activities, in accordance with General 
Condition 19. In addition, the Corps Section 404 review will address 
the direct and indirect effects to the aquatic environment from the 
regulated discharge of fill material.
    The existing permit relies primarily on any state-required 
mitigation under the Surface Mining Control and Reclamation Act (SMCRA) 
to address impacts to the aquatic environment. The Corps has determined 
that this is not appropriate, as the requirements of SMCRA differ form 
those of the CWA and reliance on SMCRA authorization may not result in 
adequate mitigation of adverse aquatic impacts. Therefore, the reissued 
permit provides for Corps determination of appropriate mitigation in 
accordance with General Condition 19. Corps review is limited to the 
direct, indirect, and cumulative effects of fills in waters of the US. 
In order to ensure that appropriate mitigation is performed, and that 
no activities are authorized that result in greater than minimal 
adverse impacts, either individually or cumulatively, the revised 
permit also requires not only notification, but also explicit 
authorization by the Corps before the activity can proceed. The Corps 
believes that both of these changes will strengthen environmental 
protection for projects authorized by this permit. The Corps request 
comments on these proposed changes.
    Definition of Fill: On April 20, 2000, the Corps and EPA issued a 
joint proposal to revise the definition of fill found at 33 CFR 
323.2(e) and 40 CFR 232.2. The proposed revision would clarify that 
fill material means material (including, but not limited to rock, sand 
and earth) that has the effect of: (i) Replacing any portion of water 
of the US with dry land; or (ii) Changing the bottom elevation of any 
portion of a water of the US.
    The proposed ``Rule'' would clarify that placement of coal mining 
overburden in waters of the US is considered a discharge of fill 
material. The agencies received approximately seventeen thousand 
comments on the proposed rule and are still evaluating these comments. 
Unless and/or until a final ``Rule'' is issued, the scope of coverage 
of this permit is determined by the current regulations and any changes 
to those regulations would affect only the scope of covered discharges, 
not the terms and conditions of the permit itself.
    Bragg Settlement Agreement: On December 23, 1998, a settlement 
agreement in litigation that challenged the use of NWPs in West 
Virginia to regulate so-called ``valley fills'' associated with certain 
types of coal mining in that state. Bragg v. Robertson, Civil Action 
No. 2:98-0636 (S.D. W.Va). That agreement was approved by the Court on 
June 17, 1999. 54F.Supp. 2d 653. While on appeal, the Fourth Circuit 
Court of Appeals vacated a subsequent decision issued by the District 
Court addressing SMCRA claims in the case (see 248 F.3d 275), that 
decision left intact the 1998 settlement agreement. See 248 F.3d at 
288, n.1 (noting District Court's approval of the settlement 
agreement). A portion of the settlement agreement states that excess 
rock resulting from a surface coal mining and reclamation operation 
which would bury a stream segment draining a watershed of 250 acres or 
more will generally be considered to have more than minimal adverse 
effects on waters of the US. Consistent with the terms of this 
agreement, to which the Corps is a party, the Corps will generally use 
its discretionary authority to require Individual Permits for coal 
mining activities in West Virginia that exceed the 250-acre watershed 
threshold. The Corps notes that this agreement was negotiated among 
various Federal agencies and the State of West Virginia, and relates to 
certain types of coal mining operations in that state. The Corps 
believes there are many different types of coal mining operations in 
other parts of the country and that the conditions of the settlement 
agreement may not be applicable to many of these other operations. For 
this reason, the terms of the agreement have not been incorporated into 
the permit, which by definition is nationwide in scope.
    Further, we are gathering data to better understand the effects of 
valley fills on the aquatic environment. Therefore, at this time we are 
not adding additional conditions from the agreement to the NWP itself. 
As additional scientific data is gathered, the terms of the agreement 
and/or may be revised. Thus, we do not believe that we should add 
specific conditions from the settlement agreement to this NWP which has 
a term of five years. However, the Corps wishes to reiterate that it 
will abide by all terms of the agreement as long as it remains in 
effect.
    It is important to the Corps that surface coal mining activities 
authorized by this NWP do not cause more than minimal adverse effects 
to the aquatic environment after considering mitigation. As such, the 
District Engineer will ensure that the discharge of fill material in 
waters of the US associated with coal mining activities are having no 
more than minimal adverse effects on the aquatic environment. The Corps 
requests comments on the proposal to reissue this NWP with two 
additional provisions to strengthen environmental protection. The Corps 
also specifically solicits comment on the appropriate of establishing 
environmental thresholds for determining the applicability of NWP 21, 
such as the acres of the watershed impacted, the nature and length of 
the streams, and the

[[Page 42077]]

environmental functions and values of the streams, among other things.
27. Wetland and Riparian Restoration and Creation Activities
    The Corps is not proposing any substantive change to the terms and 
conditions or the types of activities authorized by this NWP; we are 
only proposing to simplify the four categories of lands covered into 
three. We are proposing to combine two provisions; (a)(2) Any Federal 
land and (a)(4) Any private or public land. The two provisions would be 
listed as provision (a)(3) Any other public, private or tribal land. 
Initially, these two provisions were meant to cover cases which (a)(1) 
& (3) did not. The current structure of this NWP resulted when all 
Federal and privately owned lands were included in the December 13, 
1996, Federal Register Notice (61 FR 65874-65922). The notice should 
have combined (a)(2) and (a)(4) at that time. Provision (a)(3) 
Reclaimed surface coal mine lands will be listed as provision (a)(2). 
This change will not affect how or if any activities will be authorized 
by this NWP.
31. Maintenance of Existing Flood Control Facilities
    The Corps is proposing to modify NWP 31 to clarify Corps policy and 
requirements regarding mitigation for maintenance activities. We intend 
to clarify documentation requirements for the baseline determination, 
and allow maintenance of areas that are a part of the flood control 
facility without constructed channels provided that the Corps approves 
Best Management Practices (BMPs) to ensure that environmental effects 
are minimal.
    The Corps policy is that temporary impacts due to routine 
maintenance activities generally do not require mitigation to ensure 
that the impacts will be minimal. Although, in some cases, mitigation 
for maintenance activities is necessary to ensure that impacts will be 
minimal. However, it is neither necessary nor appropriate to impose 
recurring mitigation requirements for discharges of dredged or fill 
material associated with cyclic maintenance activities in flood control 
facilities. Cyclic maintenance is inherent in the continued operation 
of flood control facilities, and regulated discharges of dredged or 
fill material will inevitably occur as a result of this activity. In 
recognition of these facts, we propose to revise NWP 31 to explicitly 
authorize such discharges, and to proactively prescribe mitigation for 
such reasonably foreseeable, but unspecified, discharges associated 
with routine maintenance. We propose to accomplish this by establishing 
the prerequisite approval of a ``maintenance baseline'' as a threshold 
requirement for NWP 31 eligibility in all cases other than emergency 
situations. The ``maintenance baseline'' is a description of the 
physical characteristics (e.g., dimensions, configuration, etc.) of the 
flood control facility and attendant features, within which regulated 
discharges associated with maintenance activities that will not 
increase those physical characteristics are eligible for authorization 
under NWP 31. The maintenance baseline will include all constructed 
channels and features, and areas in which no construction has occurred 
but which have been incorporated, as is, in the design of the flood 
control facility.
    We are proposing to clarify that mitigation requirements should be 
determined and imposed as part of the approval of the maintenance 
baseline. Such requirements will be based on the identification and 
assessment of recurring discharges associated with routine maintenance, 
and of reasonably foreseeable temporary discharges. Recurring 
discharges associated with permanent features of a flood control 
project may only be authorized under this NWP as part of the approval 
of the original maintenance baseline, or as part of the approval of a 
revised maintenance baseline. In these cases, mitigation that 
specifically offsets the adverse effects of the recurring discharge in 
waters of the US should be required.
    In addition, it is possible that future maintenance operations will 
require non-recurring discharges for temporary features such as staging 
areas, access fills for maintenance equipment, and interim storage 
areas for debris and excavated materials. To the extent that the need 
for such temporary discharges can reasonably be anticipated, a generic 
assessment of adverse effects should be conducted, and commensurate 
mitigation should be required as part of the approval of the 
maintenance baseline. We are proposing that minor discharges associated 
with such projects, such as drippings and small volume soil 
disturbances from excavation or earth-moving equipment, or from vehicle 
tires or tracks, are adequately mitigated by BMPs, and no additional 
mitigation will be required concerning such discharges. Note that some 
such discharges may meet the definition of ``incidental fallback'' and 
are not regulated under Section 404 of the CWA.
    Flood control facilities are, by nature, intended to avoid or 
reduce the effects of floods on life and property. Thus, we are 
proposing to revise the permit to allow the use of this NWP in 
emergency situations to authorize discharges associated with 
maintenance activities in flood control facilities for which no 
maintenance baseline has been approved. Emergency situations are those 
that would result in an unacceptable hazard to life, a significant loss 
of property, or an immediate, unforeseen, and significant economic 
hardship if action is not taken before a maintenance baseline can be 
approved. In such situations, we are proposing that the determination 
of mitigation requirements may be deferred until the emergency 
maintenance is accomplished. However, in such cases a maintenance 
baseline will be determined and appropriate mitigation required once 
the emergency has passed. The emergency exception is not intended to be 
a substitute for advanced planning of maintenance activities. Such 
planning generally allows the activities to be conducted in a manner 
that reflects appropriate flood control needs and eliminates 
unnecessary adverse impacts to aquatic resources. Factors such as the 
functions and values of the aquatic resource impacted and the 
maintenance history of the facility will be considered in determining 
whether emergency maintenance can be authorized under this NWP. In 
cases where use of this permit is determined to be inappropriate, the 
Corps retains discretion to authorize emergency activities through an 
Individual Permit under its existing regulations.
    In proposing these modifications of NWP 31, we are reflecting 
existing Corps policy regarding the maintenance of Corps-constructed 
Civil Works flood control projects and ecosystem restoration projects. 
Two key features of the Corps Civil Works project policy are to 
acknowledge that routine maintenance activities and resultant 
discharges are inherent parts of the project operation, and to address 
all foreseeable adverse effects through the establishment of ``one-
time'' mitigation requirements as part of the initial authorization 
process. Consistent with this policy, we are proposing to modify NWP 
31. We are proposing to require the approval of a maintenance baseline 
and determine a one-time mitigation requirement as appropriate at the 
time an original maintenance baseline is approved, or when any revision 
of the maintenance baseline is approved. In some cases, the District 
Engineer may determine that mitigation is not necessary for such 
projects in order to ensure minimal adverse impacts. In situations 
where mitigation requirements were considered but not

[[Page 42078]]

required, the discharges associated with any subsequent maintenance 
activities, provided they do not exceed the maintenance baseline, will 
not require mitigation.
    The Corps also is proposing to clarify the documentation required 
for a determination of a maintenance baseline. In the past, our 
District offices and the flood control agencies have not been certain 
of the requirements to document the maintenance baseline. We have 
clarified that the flood control agency needs to document the physical 
characteristics and design capacity of the existing flood control 
facility. This can be done by submitting as-built or approved drawings 
and evidence of the flood control facility design capacities for 
approval as the maintenance baseline.
    The NWP 31 will allow floodways that do not have constructed 
channels to be maintained. However, the flood control agency would need 
to establish BMPs to ensure that the adverse effects on the aquatic 
environment would be minimal. These areas are a part of the overall 
flood control project and need to be maintained despite the absence of 
constructed channels or hard surfaces. We believe that by establishing 
BMPs as part of the maintenance baseline for these areas we can ensure 
that these maintenance activities have minimal impacts. The Corps 
requests comments on the proposed changes to this NWP.
    This NWP 31 does not establish a need for a Corps permit where a 
need does not otherwise exist. For example, some flood control projects 
may qualify for exemptions under Section 404(f)(1)(B) of the CWA. The 
404(f)(1)(B) exemption provides for the ``maintenance, including the 
emergency reconstruction of recently damaged parts, of currently 
serviceable structures such as dikes, dams, levees, groins, rip rap, 
breakwaters, causeways, and bridge abutments or approaches, and 
transportation structures.''
37. Emergency Watershed Protection and Rehabilitation
    This NWP is limited to Natural Resource Conservation Service (NRCS) 
and U.S. Forest Service (USFS) Programs. We received a request from the 
Department of the Interior (DOI) to include the Wildland Fire 
Management Burned Area Emergency Stabilization and Rehabilitation 
Program (DOI Manual, Part 620, Ch. 3) to this NWP. Their letter stated, 
``the Department of the Interior has similar responsibilities as the 
Forest Service, such as suppression of wildland fires and the 
rehabilitation of the burned land.'' The letter went on to also state 
``that the Department of the Interior operated both jointly and 
independently of the Forest Service, concerning emergency 
rehabilitation of public land.''
    As such, the Corps is proposing to modify this NWP to authorize 
work conducted or funded by the DOI emergency wildland fire 
rehabilitation Program. Including the different bureaus of the DOI that 
are included in this program (i.e. Bureau of Land Management (BLM), 
Bureau of Indian Affairs (BIA), National Park Service (NPS), US Fish 
and Wildlife Service (USFWS), Bureau of Reclamation (BOR)) will allow 
for effective management of public lands when conducting emergency 
wildland fire rehabilitation work. Including the DOI in this NWP allows 
the option for authorization of their emergency rehabilitation work 
that is conducted independently of the existing USFS Program.
    In addition, NRCS is currently developing a PEIS which will result 
in modification of the existing Emergency Watershed Protection Program 
regulations. At this stage in the PEIS development, specific 
terminology is not finalized. Therefore, NRCS has recommended that the 
NWP 37 language be made more general by deleting the term ``exigency,'' 
which may be changed in the NRCS regulations. This will ensure that the 
permit language remains consistent with the NRCS terminology and that 
necessary activities will continue to be authorized during recovery 
efforts caused by national disasters.
39. Residential, Commercial, and Institutional Developments
    The Corps is proposing these changes to this NWP: (1) Simplify the 
subdivision provision, without substantively changing its effects, (2) 
delete the one-cfs restriction on stream impacts, and (3) allow a 
project specific wavier of the 300 linear-feet prohibition following a 
written determination by the Corps that any adverse environmental 
effects would be no more than minimal (discussed separately in the 
context of all affected permits below). We are proposing to reduce 
confusion associated with the ``subdivision'' provision by simplifying 
the language. The current subdivision provision is confusing and 
difficult to implement. We propose simplifying the language to read, 
``for residential subdivisions, the aggregate total loss of waters of 
the US associated with NWP 39 can not exceed \1/2\-acre. This includes 
any loss of waters associated with the development of individual lots 
within the subdivision.''
    The impacts and full extent of fill needed for residential 
subdivisions including any fill for all the lots within the subdivision 
will be considered initially to avoid any piecemealing approach by 
developers. In evaluating proposed residential community developments 
under NWP 39, the Corps will review the overall development plan. Where 
the Corps determines that total impact, including all platted lots, 
would clearly exceed the \1/2\-acre limit, the Corps will require an 
Individual Permit. NWP 39 may be used more than once for a project, but 
the aggregate total impacts authorized may not exceed \1/2\-acre. For 
example, if NWP 39 were used for the roads, utilities and one lot fill, 
and the aggregate total impacts were \1/4\-acre, then the total of any 
subsequent use of NWP 39 within that subdivision (e.g. for individual 
lot fills by a subsequent homeowner) could not exceed \1/4\-acre.
    If additional land is purchased adjacent to the authorized 
residential subdivision, and future development is proposed (i.e., an 
additional phase or unit) then that second phase would be considered a 
separate project. NWP 39 could be used on this second phase (an 
additional new subdivision with independent utility from the first 
subdivision) as it was on phase one (i.e., a maximum of \1/2\-acre of 
impacts could be authorized for phase two). However, if the Corps 
determines that the ``phasing'' of a project has been deliberately 
structured in advance to avoid exceeding the \1/2\-acre limit, it will 
prohibit the use of this NWP for subdivisions that result in the loss 
of more than \1/2\-acre of waters in total.
    The Corps believes that a provision of NWP 39 (Part k) regarding 
stream impacts downstream of the point on a stream where the average 
annual flow is one-cfs unnecessarily limits the use of this permit in 
some cases where impacts are still minimal (e.g., a stream that has 
been severely degraded by livestock grazing). The Corps receives a 
``notification'' for all activities involving \1/10\-acre impact, for 
any project effecting more than 300 linear-feet of stream bed and all 
projects affecting open waters. Collectively, these provisions make it 
unlikely that a project affecting a stream with flow exceeding one-cfs 
will escape notification and individual review. The Corps believes its 
case-by-case review of these projects will ensure protection of the 
aquatic environment. As such, we are proposing to remove this provision 
from NWP 39. The Corps requests comment on the proposed revisions.
42. Recreational Facilities
    In addition to the proposed change discussed below regarding this 
NWP (see next section), we are requesting

[[Page 42079]]

suggestions regarding criteria, standards and BMPs that should be 
applied to this NWP for recreational facilities. Suggestions that will 
be considered must ensure that adverse effects on the aquatic 
environment are minimal and will integrate the recreational facility 
into the natural landscape. We will consider adopting such criteria, 
standards, or BMPs, where appropriate into the permit itself or through 
implementation of guidance. These suggestions may be generic for all 
recreational facilities or may be for specific types of recreation 
facilities.
Project Specific Wavier of 300-Linear Feet Prohibition in NWPs 39, 40, 
42, and 43
    For these four permits, the Corps is proposing to allow a waiver, 
on a case-by-case basis, of the prohibition on impacts exceeding 300 
linear-feet of streambed provided the Corps determines that the impacts 
to the aquatic environment will be minimal. To understand why, it is 
important to realize that the CWA's geographic jurisdiction extends to 
the uppermost portions of tributary systems. Some streams extend for 
thousands of feet, but are extremely small. For example, a stream may 
consist of a drainage-way (which may have been straightened in the past 
by human activity) that is a six-inch wide by one-inch deep area 
running for several thousand feet throughout a grassy upland field. 
Such a stream may only have water flowing for a few days after a rain 
event. In some cases, this type of stream provides few, if any, aquatic 
functions and loss of more than 300 linear-feet of such a stream would 
not constitute more than minimal impacts. This is especially true if 
the District Engineer has reviewed the project and required appropriate 
mitigation measures, which ensure that the project does not have more 
than minimal adverse effect on the aquatic environment. In cases where 
the Corps is aware or becomes aware of areas that provide higher level 
of aquatic functions, the Corps will ensure proper protection of the 
aquatic environment.
    As a result, the Corps believes the 300 linear-foot prohibition for 
activities involving residential, commercial, and institutional 
developments, relocation of existing serviceable drainage ditches 
constructed in non-tidal streams, recreation facilities, discharges or 
excavation for the construction of new stormwater management 
facilities, or for the maintenance of existing stormwater management 
facilities could in some cases unnecessarily restrict authorization of 
an otherwise minimal impact activity. Therefore, we are proposing to 
allow a waiver of the 300 linear-foot prohibition on a project specific 
basis.
    To make use of this waiver, the applicant must first notify the 
Corps in accordance with the ``notification'' General Condition that 
the applicant would like to exceed the 300 linear-foot limitation on 
impacts to streambeds. The District Engineer may waive the prohibition 
and authorize impacts exceeding 300 linear-feet to streams, but only if 
the District Engineer determines the that the activity complies with 
the other terms and conditions of the NWP, and the adverse 
environmental effects on the aquatic environment will be minimal both 
individually and cumulatively. In making this determination, the 
District Engineer will consider factors such as the length of stream 
impacted and their water quality conditions, functions, and 
designations, the size of the watershed drained by those streams, 
potential impacts to flood retention/desynchronization functions, 
biological resources, known public concern, and any required 
mitigation. The Corps believes that Individual Permits will usually be 
required for projects that exceed the 300-foot limitation, and will 
track the exercise of the wavier provision. Note that this waiver 
provision is more restrictive than the notification required in other 
NWPs, because following notification, the Corps must make a case-
specific determination that any impacts will be minimal, and notify the 
project proponent in writing of this determination. If the written 
verification by the Corps is not received, the project is not 
authorized.
    Allowing a case-specific waiver of the prohibition provides 
flexibility where the adverse effects are minimal as discussed above. 
Given the Corps limited human resources and an increasing demand for 
aquatic resource protection, this flexibility allows efficiency in 
processing proposed projects with impacts to aquatic areas that are 
relatively low value, such as degraded waters of the US. This waiver 
provision is not intended to ``relax'' aquatic resource protection. It 
is intended to allow the Corps to focus limited resources more 
intensively on areas of higher quality aquatic ecosystems, or areas 
where impacts are likely to be more than minimal.
    Although the Corps is proposing to allow a limited project-specific 
waiver of the 300 linear-foot prohibition on stream impacts, other 
conditions restrict some streambed impacts such as, channelization, 
special aquatic site, and shellfish beds. We continue to discourage 
extensive channelizing or relocation of streambeds because of potential 
adverse effects on the stream and the potential to intensify downstream 
flooding. The District Engineers will evaluate on a case-by-case basis 
the need for requested authorizations to channelized or relocate 
streambeds for extensive lengths. Channelization of streams can have 
adverse impacts downstream, which under General Condition 21 must be 
reduced to the minimum necessary and mitigated. If it is determined by 
the District Engineer that the project will result in more than minimal 
adverse effect on the aquatic environment, the District Engineer will 
not grant a waiver and an Individual Permit will be required.

Nationwide Permits General Conditions

4. Aquatic Life Movements
    Recently, there has been confusion on the part of some members of 
the public over the meaning of this General Condition to suggest that 
if any portion of waters of the US are filled, then that would 
substantially disrupt the movement of aquatic life. Such an 
interpretation would have the effect of prohibiting virtually all 
discharges of dredged or fill material under NWPs. This would defeat 
the entire purpose of the NWP Program and that has never been our 
intent. Thus, we propose to clarify this General Condition.
    It was not the Corps intent for this condition to be interpreted as 
prohibiting use of NWPs simply because aquatic life can not move into 
an area that was filled. Obviously, filled areas will not be used by 
aquatic life as if they were unfilled areas. Rather, it was always the 
Corps intent that this General Condition restrict the use of NWPs when 
the discharge of dredged or fill material into waters of US would 
prevent the necessary life-cycle movements of aquatic life to remaining 
waters of the US. For example, fills which block the movement of an 
anadromous fish species to an area of substantial importance as nursery 
grounds for juveniles. Under this General Condition, such fills would 
not be authorized. Our concern is not with preventing any movement 
within water, but with preventing movement that would substantially 
effect the life cycle of the aquatic life.
    The condition does not automatically restrict all filling (i.e. 
fill placed in the upper limits of a stream may be authorized when the 
fill does not interfere with necessary aquatic life movement). Of 
course, if the loss of such waters of the US would have more than 
minimal adverse effects on the

[[Page 42080]]

aquatic environment, then NWPs could not be used to authorize such 
fills. However, in such cases, the decision to require an Individual 
Permit would not be based on this General Condition.
9. Water Quality
    The Corps is proposing to clarify this condition as it relates to 
detailed studies and documentation requirements. The changes will not 
reduce protection of the aquatic environment. Although the language of 
this condition could be interpreted to require detailed studies and 
design to develop water quality plans for every permit action, that was 
never our intent. While we do believe that inclusion of water quality 
management measures in project design is very important, we do not 
believe that comprehensive design and planning should be a requirement 
of Corps NWPs, except in a few cases.
    In most cases, the Corps relies on state or local water quality 
programs. Where such programs do exist, the Corps will normally review 
the project to ensure that appropriate water quality features, such as 
stormwater retention ponds, are designed into the project. In some 
cases, the Corps may require more extensive design features to ensure 
that open water and downstream water quality are not substantially 
degraded. Normally, we believe that the permittee will comply with the 
requirements of this condition by obtaining state or local water 
quality approval or complying with state or local water quality 
practices, where such practices exist. We are proposing to add language 
that clarifies that permittees may meet the requirement of this 
condition by complying with state or local water quality practices.
13. Notification
    The Corps is proposing, under Contents of Notification, to provide 
applicants the option to provide drawings, sketches or plans sufficient 
for Corps review of the project to determine if the project meets the 
terms of a NWP. We do not intend this supplemental documentation to be 
detailed engineering drawings or plans. Simply, this additional 
information is for the Corps to review in order to efficiently 
determine that the project meets the terms and conditions of the NWP. 
Often drawings or sketches can be used to more clearly show that the 
project complies with the terms of an NWP. The Corps expects that most 
``notifications'' will include a sketch that will expedite the Corps 
review. Applicants are encouraged to supply such drawings, but such 
drawings are not required for a complete ``notification'' unless the 
Corps determines on a case-by-case basis that a sketch or drawing is 
necessary to show that the activity complies with the terms of the NWP.
    We are proposing to add additional language to the ``notification'' 
requirement for NWPs 21, 39, 40, 42, and 43. For all projects using NWP 
21, and for projects using NWPs 39, 40, 42, and 43 that propose 
impacting intermittent or perennial stream beds in excess of 300 
linear-feet, the Corps must be notified and explicit authorization 
obtained before the project can proceed. In the case of NWP 21, this 
authorization would be based on a determination by the District 
Engineer that the adverse effects of the project on the aquatic 
environments were minimal, both individually and cumulatively, after 
considering mitigation. In the case of NWPs 39, 40, 42, and 43, this 
authorization would require a waiver of the 300 linear-foot 
prohibition, again based on a determination by the District Engineer 
that adverse effects on the aquatic environment are minimal, 
individually and cumulatively. These regulations are similar to the 
provision under NWP 13 for Bank Stabilization, in that the District 
Engineer must verify that the project complies with the terms and 
conditions of the NWP. The District Engineer must also determine that 
the adverse environmental effects to the aquatic environment are 
minimal both individually and cumulatively after considering 
mitigation. If the applicant has not received an explicit Corps waiver 
in writing for the activity, then impacts exceeding 300 linear-feet to 
stream beds are not authorized by NWPs 39, 40, 42, and 43.
    Although the Corps is proposing to allow a waiver of the 300 
linear-foot prohibition [to a ``notification'' requirement], we still 
discourage extensive channelizing or relocation of stream beds because 
of potential adverse effects on the stream and the potential to 
intensify downstream flooding. The District Engineers will evaluate on 
a case-by-case basis the need for requested authorizations to 
channelize or relocate stream beds for extensive lengths. More than 
minimal channelization of streams can have adverse impacts downstream 
and therefore under General Condition 21 the impacts must be reduced to 
the minimum necessary and mitigated. If the District Engineer 
determines that the project will result in more than minimal adverse 
effect on the aquatic environment, the District Engineer will not issue 
a waiver and an Individual Permit will be required.
    We are also proposing to delete for NWPs 12, 14, 29, 39, 40, 42, 
43, and 44 the requirement to provide ``notification'' to the Corps for 
permanent above grade fills in waters of the US. This change is being 
proposed to be consistent with the proposed changes to General 
Condition 26 for ``Fills within 100-year Floodplains'', as discussed 
below. This ``notification'' provision that the Corps is proposing to 
remove is not needed because of ``notification'' requirements elsewhere 
in these NWPs that the Corps is retaining.
19. Mitigation
    We are proposing to revise this condition to allow a case-by-case 
waiver of the requirement of one-for-one mitigation of adverse impacts 
to wetlands. This change is intended to allow Corps Districts to 
require the mitigation for project impacts that best protects the 
aquatic environment. In the case of wetland destruction, one-for-one 
replacement or restoration is often the most environmentally 
appropriate form of mitigation, and the Corps will continue to require 
this form of mitigation in the majority of cases. However, the Corps 
believes the one-for-one acreage requirement as currently written is 
too restrictive in that it does not allow the Corps to mitigate aquatic 
impacts to streams and other non-wetland aquatic resources.
    Districts should have flexibility to require mitigation ratios on a 
case-by-case basis based on the aquatic ecosystem needs of the area. In 
many cases, authorized impacts may be in relatively low quality 
wetlands and opportunities may exist for protection, restoration or 
enhancement of other, higher quality aquatic resources. Districts need 
the flexibility to determine the best type and location for 
environmentally effective compensatory mitigation. In order to waive 
the one-for-one requirement, the District Engineer will need to 
determine that another form of mitigation is more environmentally 
appropriate.
    The Corps is retaining in the proposed General Condition the 
preference for restoration of wetlands over preservation, when one-for-
one mitigation of wetland losses is required. However, the Corps is 
aware that some researchers have questioned the premise that 
restoration is generally preferable to preservation and requests 
comment on whether this preference should be dropped, in order to 
further facilitate consideration of the most environmentally 
appropriate mitigation on a project specific basis.

[[Page 42081]]

    The aquatic environment must be looked at in a holistic manner. The 
decision on required mitigation should factor in the total aquatic 
environmental assets in an area. In many cases, vegetated buffers may 
be more critical than replacing wetland losses acre for acre for 
maintaining the integrity of the aquatic environment and addressing 
water quality concerns. Use of vegetated buffers is an acceptable and 
often a better approach to protecting the integrity of the overall 
waters of the US in a particular area, rather than mitigating only for 
wetland losses in-kind. As discussed earlier in more detail, the use of 
vegetated buffers may be more beneficial as mitigation for direct or 
secondary impacts to aquatic resources associated with the regulated 
activity. In some cases, it may be helpful to evaluate mitigation 
measures needed to offset the unavoidable impacts of a permitted 
activity using a habitat functional analysis program, such as the 
Habitat Evaluation Program (HEP), the hydrogeomorphic method (HGM), or 
other appropriate model. The results of the functional assessment may 
then be considered in designing the project mitigation plan. The Corps 
requests comments on its proposal to allow a case-by-case waiver of the 
one-for-one wetlands mitigation requirement when the District Engineer 
determines that some other form of mitigation would be more 
environmentally appropriate.
21. Management of Water Flows
    The Corps is proposing to clarify this condition. Authorized 
activities or improvements to aquatic systems typically will cause 
deviation from pre-construction flow conditions. NWPs authorize only 
those activities that will have minimal adverse effect on the aquatic 
system including water flows. Typically, well-established design 
features are included as part of projects without a need for detailed 
engineering studies. State or local agencies often require these design 
features. Consequently, we believe that detailed studies and monitoring 
would not normally be required by this condition.
    Where appropriate, the Corps will review projects to ensure that 
design features that address flows are included, such as limited 
channelization, proper design for culverts, and retention ponds, but 
generally will not require detailed studies of post-project flow. 
However, in some cases, detailed studies may be required where there is 
a potential for substantial impacts.
26. Fills Within the 100-year Floodplain
    The Corps is proposing to modify this condition to require that all 
projects authorized by NWPs must comply with any applicable Federal 
Emergency Management Agency (FEMA) state or local floodplain management 
requirements. We are also proposing to delete the ``notification'' 
requirement and the requirement to document that the project meets FEMA 
approved requirements. The Corps has found that requiring applicants to 
document that they have met FEMA approved requirements has done little 
to change or enhance compliance with these requirements. We believe 
that a General Condition clearly requiring that permittees comply with 
FEMA approved requirements will be just as effective. General Condition 
26 is applicable only to discharges of dredged or fill material in the 
mapped FEMA floodway or floodplain (mapping may be by FEMA or a state 
or local government under FEMA rules). For purposes of this General 
Condition, 100-year floodplains will be identified through the existing 
or local Flood Insurance Rate Maps or FEMA-approved state or local 
floodplain maps.
    For NWPs 12, 14 and 29, we believe that compliance with FEMA-
approved state or local floodplain management requirements (i.e., part 
26(c)), compliance with General Condition 21 which addresses management 
of flows, and case-by-case review by the Corps of projects through the 
``notification'' process, will ensure that impacts in floodplains are 
adequately addressed. As such, we propose to remove the prohibitions in 
26(a) and 26(b) for these three permits. Condition 26(a) prohibits 
discharges resulting in above grade fills in the floodplain below the 
headwaters, and 26(b) prohibit discharges resulting in above grade 
fills in the floodway (which is narrower than the floodplain). We 
believe District Engineers need flexibility to address above grade 
fills in the floodway/ floodplain for projects using these three NWPs 
on a project-specific basis. The Corps requests comments on its 
proposed changes to this General Condition.
    We have retained the prohibition against using NWPs 39, 40, 42, and 
44 in the mapped floodway above the headwaters (26(b)). We have also 
retained the prohibition against authorizing above grade fills in the 
mapped floodplains by NWPs 39, 40, 42, 43, and 44 below the headwaters 
(26(a)). However, we believe that some activities authorized by these 
NWPs provide additional flood storage inherent in the project design 
(e.g., golf courses). As such, we believe that for projects increasing 
flood storage capacity, some discretion should be used in the 
floodplain below headwaters. We are requesting comments on allowing 
projects to proceed under this condition below headwaters where the 
project provides additional flood storage.
    As we have stated earlier in the preamble, we believe the NWP 
Program, with its national, regional and case-by-case limitations, 
procedures and mitigation, and the expanded requirements that all 
projects in the floodplain comply with FEMA approved management 
requirements, fully complies with Executive Order 11988. This includes 
the ``Floodplain Management Guidelines for Implementing Executive Order 
11988'' issued by the U.S. Water Resources Council, and ``Further 
Advice on Executive Order 11988 Floodplain Management'' issued by the 
Interagency Task Force on Floodplain Management. ``Further Advice on 
Executive Order 11988 Floodplain Management'' states that class review 
of repetitive actions proposed in 100-year floodplains can be conducted 
in full compliance with Executive Order 11988. The Corps is currently 
conducting a formal review of the NWPs, and will summarize the results 
of this review in the preamble to the final rule.
27. Construction Period
    The NWPs authorize many activities that have no more than minimal 
adverse effects on the aquatic environment and generally involve 
projects that need a relatively short period for construction. For some 
projects, obtaining a Corps permit is one of the many steps necessary 
to complete that project. It may be two, three or more years after 
obtaining the Corps permit before the work can be completed. Under the 
existing NWPs, if such projects obtain a Corps NWP verification near 
the expiration date of the NWP, the permittee can not necessarily rely 
on that permit to continue in effect through the lengthy and costly 
process of developing and planning the project. This causes uncertainty 
regarding the NWP authorization for the project because the 
construction phase was not completed before the NWP authorization 
expired. Many logistical issues may delay construction projects 
sometimes for considerable periods.
    Corps regulations at 33 CFR 330.6(b) provide that those 
construction activities commenced or that are under contract to 
commence while an NWP is in effect will remain authorized, provided the 
activity is completed within 12-months from the date the NWPs have 
expired, been modified, or revoked. This approach was developed for 
non-reporting NWP activities to

[[Page 42082]]

provide a period that permittees could rely on and finish a project 
that qualified for a NWP without notifying the Corps. It was also 
developed at a time when NWPs were issued with little or no changes. 
The Corps believes that this provision does not adequately address NWPs 
for which the permittee notifies the Corps before project commencement.
    We are proposing a new General Condition for activities for which 
the Corps has received notification and a construction schedule has 
been reviewed, and verification issued by the Corps. The condition 
allows the Corps to establish project completion dates beyond the 
expiration of the NWPs. District Engineers may extend authorization of 
an activity by a NWP for a reasonable period to allow for project 
completion, however always maintaining discretionary authority provided 
in accordance with 33 CFR 330.4(e) and 330.5(c), or (d). If no pre-
approved construction period is established then all work must be 
completed before the NWP expires, or is modified, or revoked, or by 12-
months after if project was commenced or under contract to commence by 
that date.
    This condition helps eliminate needless financial or logistical 
burden to the regulated public. NWP time limits unnecessarily restrict 
authorization to what may be unreasonable periods for completion of 
many construction activities near the end of the permit cycle, with no 
beneficial effects for protecting the aquatic environment. The Corps 
expects each District Engineer to assess each pre-approved construction 
period to identify aquatic areas and/or activities where the approval 
of an extended schedule could lead to substantial impacts with more 
than minimal adverse effects on the aquatic environment. In cases where 
approval of an extended schedule would lead to a greater than minimal 
adverse impacts, an extended schedule will not be approved. The Corps 
requests comment on this new General Condition.

Executive Order 13212--Actions To Expedite Energy-Related Projects

    President George W. Bush signed Executive Order 13212 (66 FR 28357-
28358, May 22, 2001) on May 18, 2001, directing new policy actions to 
expedite the increased supply and availability of energy to our Nation. 
This policy applies to all executive departments and agencies. The 
order directs all agencies to take appropriate actions, to the extent 
consistent with applicable law, to expedite projects that will increase 
energy production, transmission, or conservation of energy, while 
maintaining protection of the environment. For energy-related projects, 
agencies shall expedite their review of permits, or take other actions 
as necessary to accelerate the completion of such projects, while 
maintaining safety, public health and environmental protections. 
Agencies shall take such actions to the extent permitted by law and 
regulation, and where appropriate.
    General Permits, such as NWPs or Regional Permits provide us the 
opportunity to expeditiously permit activities that have minimal 
adverse effect, both individually and cumulatively, on the aquatic 
environment. As such, the Corps is requesting comments to modify or 
change the proposed NWPs contained within this notice, in reference to 
Executive Order 13212. We will consider adopting such modifications or 
changes, where appropriate. These suggestions may be generic to all 
NWPs, or for a specific NWP.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use (Statement of 
Energy Effects)

    The NWP Program is designed to regulate certain activities having 
minimal impacts with little, if any, delay or paperwork. NWPs allow 
smaller, repetitive, low impact projects with minimal effects on the 
aquatic environment, to be reviewed and authorized in a shorter period 
than larger complex projects that require an Individual Permit review. 
Many energy related projects, such as petroleum pipelines and electric 
utility lines, are expeditiously authorized by Nationwide Permits. The 
changes the Corps is proposing to the Nationwide Permits will maintain 
the expedited process for these energy related projects. Therefore, the 
Corps concludes that the proposed NWPs will not significantly affect 
the supply, distribution, and use of energy and fully complies with 
Executive Order 13211.
    Accordingly, the Corps is proposing to reissue the existing 
Nationwide Permits and general conditions with minimal modifications as 
follows:

    Dated: July 23, 2001.
Hans A. Van Winkle,
Major General, U.S. Army, Director of Civil Works.
    Nationwide Permits, Conditions, Further Information, and 
Definitions:

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

Nationwide Permits

1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices 
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Maintenance
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Stream and Wetland Restoration Activities
28. Modifications of Existing Marinas
29. Single-family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. 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

[[Page 42083]]

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. Fills Within 100-year Floodplains
27. Construction Period

Further Information

Definitions

Best Management Practices (BMPs)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farm Tract
Flood Fringe
Floodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex
Single and Complete Project
Stormwater Management
Stormwater Management Facilities
Stream Bed
Stream Channelization
Tidal Wetland
Vegetated Buffer
Vegetated Shallows
Waterbody

A. Nationwide Permits

    1. Aids to Navigation. The placement of aids to navigation and 
Regulatory markers which are approved by and installed in accordance 
with the requirements of the U.S. Coast Guard (USCG) (See 33 CFR 
chapter I, subchapter C, part 66). (Section 10)
    2. Structures in Artificial Canals. Structures constructed in 
artificial canals within principally residential developments where the 
connection of the canal to navigable water of the US has been 
previously authorized (see 33 CFR 322.5(g)). (Section 10)
    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 NWP 
authorizes the repair, rehabilitation, or replacement of those 
structures or fills destroyed or damaged by storms, floods, fire or 
other discrete events, provided the repair, rehabilitation, or 
replacement is commenced, or is under contract to commence, within two 
years of the date of their destruction or damage. In cases of 
catastrophic events, such as hurricanes or tornadoes, this two-year 
limit may be waived by the District Engineer, provided the permittee 
can demonstrate funding, contract, or other similar delays.
    (ii) Discharges of dredged or fill material, including excavation, 
into all waters of the US 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 riprap 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 US 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 US. (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 US 
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 before 
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 restore damaged upland areas. This permit cannot be 
used to reclaim historic lands lost, over an extended period, to normal 
erosion processes. This permit does not authorize maintenance dredging 
for the primary purpose of navigation and beach restoration. 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). (Sections 10 and 404)

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

    4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. Fish and wildlife harvesting devices and 
activities such as pound nets, crab traps, crab dredging, eel pots, 
lobster traps, duck blinds, clam and oyster digging; and small fish 
attraction devices such as open water

[[Page 42084]]

fish concentrators (sea kites, etc.). This NWP authorizes shellfish 
seeding provided this activity does not occur in wetlands or sites that 
support submerged aquatic vegetation (including sites where submerged 
aquatic vegetation is documented to exist, but may not be present in a 
given year.). This NWP does not authorize artificial reefs or 
impoundments and semi-impoundments of waters of the US for the culture 
or holding of motile species such as lobster or the use of covered 
oyster trays or clam racks. (Sections 10 and 404)
    5. Scientific Measurement Devices. Devices, whose purpose is to 
measure and record scientific data such as staff gages, tide gages, 
water recording devices, water quality testing and improvement devices 
and similar structures. Small weirs and flumes constructed primarily to 
record water quantity and velocity are also authorized provided the 
discharge is limited to 25 cubic yards and further for discharges of 10 
to 25 cubic yards provided the permittee notifies the District Engineer 
in accordance with the ``Notification'' General Condition. (Sections 10 
and 404)
    6. Survey Activities. Survey activities including core sampling, 
seismic exploratory operations, plugging of seismic shot holes and 
other exploratory-type bore holes, soil survey, sampling, and historic 
resources surveys. Discharges and structures associated with the 
recovery of historic resources are not authorized by this NWP. Drilling 
and the discharge of excavated material from test wells for oil and gas 
exploration is not authorized by this NWP; the plugging of such wells 
is authorized. Fill placed for roads, pads and other similar activities 
is not authorized by this NWP. The NWP does not authorize any permanent 
structures. The discharge of drilling mud and cuttings may require a 
permit under Section 402 of the CWA. (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 CWA), 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 US.
    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)
    8. Oil and Gas Structures. Structures for the exploration, 
production, and transportation of oil, gas, and minerals on the outer 
continental shelf within areas leased for such purposes by the DOI, 
Minerals Management Service (MMS). Such structures shall not be placed 
within the limits of any designated shipping safety fairway or traffic 
separation scheme, except temporary anchors that comply with the 
fairway regulations in 33 CFR 322.5(l). (Where such limits have not 
been designated, or where changes are anticipated, District Engineers 
will consider asserting discretionary authority in accordance with 33 
CFR 330.4(e) and will also review such proposals to ensure they comply 
with the provisions of the fairway regulations in 33 CFR 322.5(l). Any 
Corps review under this permit will be limited to the effects on 
navigation and national security in accordance with 33 CFR 322.5(f)). 
Such structures will not be placed in established danger zones or 
restricted areas as designated in 33 CFR part 334: nor will such 
structures be permitted in EPA or Corps designated dredged material 
disposal areas. (Section 10)
    9. Structures in Fleeting and Anchorage Areas. Structures, buoys, 
floats and other devices placed within anchorage or fleeting areas to 
facilitate moorage of vessels where the USCG has established such areas 
for that purpose. (Section 10)
    10. Mooring Buoys. Non-commercial, single-boat, mooring buoys. 
(Section 10)
    11. Temporary Recreational Structures. Temporary buoys, markers, 
small floating docks, and similar structures placed for recreational 
use during specific events such as water skiing competitions and boat 
races or seasonal use provided that such structures are removed within 
30 days after use has been discontinued. At Corps of Engineers 
reservoirs, the reservoir manager must approve each buoy or marker 
individually. (Section 10)
    12. Utility Line Activities. Activities required for the 
construction, maintenance and repair of utility lines and associated 
facilities in waters of the US 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 US, provided there is no change in preconstruction 
contours. A ``utility line'' is defined as any pipe or pipeline for the 
transportation of any gaseous, liquid, liquescent, or slurry substance, 
for any purpose, and any cable, line, or wire for the transmission for 
any purpose of electrical energy, telephone, and telegraph messages, 
and radio and television communication (see Note 1, below). Material 
resulting from trench excavation may be temporarily sidecast (up to 
three months) into waters of the US, 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 US (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 US 
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

[[Page 42085]]

line in non-tidal waters of the US, excluding non-tidal wetlands 
adjacent to tidal waters, provided the activity does not result in the 
loss of greater than \1/2\-acre of non-tidal waters of the US.
    (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 US, 
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 US, 
excluding non-tidal wetlands adjacent to tidal waters, provided the 
discharges do not cause the loss of greater than \1/2\-acre of non-
tidal waters of the US. 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 
US 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 US must be properly bridged or culverted to maintain 
surface flows.
    The term ``utility line'' does not include activities which drain a 
water of the US, 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 US includes the filled 
area plus waters of the US that are adversely affected by flooding, 
excavation, or drainage as a result of the project. Activities 
authorized by paragraph (i) and (iv) may not exceed a total of \1/2\-
acre loss of waters of the US. Waters of the US temporarily affected by 
filling, flooding, excavation, or drainage, where the project area is 
restored to preconstruction contours and elevation, is not included in 
the calculation of permanent loss of waters of the US. 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 US 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 land clearing 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, 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 
US 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 US 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 US, excluding overhead lines, 
exceeds 500 feet;
    (d) The utility line is placed within a jurisdictional area (i.e., 
water of the US), 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 
\1/10\-acre of waters of the US; or
    (f) Permanent access roads constructed above grade in waters of the 
US for a distance of more than 500 feet.
    (g) Permanent access roads constructed in waters of the US with 
impervious materials. (Sections 10 and 404)

    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, liquescent, or slurry substances over navigable 
waters of the US, which are considered to be bridges, not utility 
lines, and may require a permit from the USCG 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 US (i.e., Section 10 waters), 
copies of the PCN and NWP verification will be sent by the Corps to 
the National Oceanic and Atmospheric Administration (NOAA), National 
Ocean Service (NOS), for charting the utility line to protect 
navigation.

    13. Bank Stabilization. Bank stabilization activities necessary for 
erosion prevention provided the activity meets all of the following 
criteria:
    a. No material is placed more than the minimum needed for erosion 
protection;
    b. The bank stabilization activity is less than 500 feet in length;
    c. The activity will not exceed an average of one cubic yard per 
running foot placed along the bank below the plane of the ordinary high 
water mark or the high tide line;
    d. No material is placed in any special aquatic site, including 
wetlands;
    e. No material is of the type, or is placed in any location, or in 
any manner, to impair surface water flow into or out of any wetland 
area;
    f. No material is placed in a manner that will be eroded by normal 
or expected high flows (properly anchored trees and treetops may be 
used in low energy areas); and,
    g. The activity is part of a single and complete project.
    Bank stabilization activities in excess of 500 feet in length or 
greater than an average of one cubic yard per running foot may be 
authorized if the permittee notifies the District Engineer in 
accordance with the ``Notification'' General Condition 13 and the 
District Engineer determines the activity complies with the other terms 
and conditions of the NWP and the adverse environmental effects are 
minimal both individually and cumulatively. This NWP may not be used 
for the channelization of waters of the US. (Sections 10 and 404)
    14. Linear Transportation Projects. 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 US, including wetlands, if the 
activity meets the following criteria:
    a. This NWP is subject to the following acreage limits:
    (1) For linear transportation projects in non-tidal waters, 
provided the discharge does not cause the loss of greater than \1/2\-
acre of waters of the US;
    (2) For linear transportation projects in tidal waters, provided 
the discharge does not cause the loss of greater than \1/3\-acre of 
waters of the US.

[[Page 42086]]

    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 \1/10\-acre of 
waters of the US; or
    (2) There is a discharge in a special aquatic site, including 
wetlands;
    c. The notification must include a compensatory mitigation proposal 
to offset permanent losses of waters of the US 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, and 
stream riffle and pool complexes, 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 
waters of the US. 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. (Sections 10 and 404)

    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).

    15. U.S. Coast Guard Approved Bridges. Discharges of dredged or 
fill material incidental to the construction of bridges across 
navigable waters of the US, including cofferdams, abutments, foundation 
seals, piers, and temporary construction and access fills provided such 
discharges have been authorized by the USCG as part of the bridge 
permit. Causeways and approach fills are not included in this NWP and 
will require an individual or regional Section 404 permit. (Section 
404)
    16. Return Water From Upland Contained Disposal Areas. Return water 
from upland, contained dredged material disposal area. The dredging 
itself may require a Section 404 permit (33 CFR 323.2(d)), but will 
require a Section 10 permit if located in navigable waters of the US. 
The return water from a contained disposal area is administratively 
defined as a discharge of dredged material by 33 CFR 323.2(d), even 
though the disposal itself occurs on the upland and does not require a 
Section 404 permit. This NWP satisfies the technical requirement for a 
Section 404 permit for the return water where the quality of the return 
water is controlled by the state through the Section 401 certification 
procedures. (Section 404)
    17. Hydropower Projects. Discharges of dredged or fill material 
associated with (a) small hydropower projects at existing reservoirs 
where the project, which includes the fill, are licensed by the Federal 
Energy Regulatory Commission (FERC) under the Federal Power Act of 
1920, as amended; and has a total generating capacity of not more than 
5000 kW; and the permittee notifies the District Engineer in accordance 
with the ``Notification'' General Condition; or (b) hydropower projects 
for which the FERC has granted an exemption from licensing pursuant to 
Section 408 of the Energy Security Act of 1980 (16 U.S.C. 2705 and 
2708) and Section 30 of the Federal Power Act, as amended; provided the 
permittee notifies the District Engineer in accordance with the 
``Notification'' General Condition. (Section 404)
    18. Minor Discharges. Minor discharges of dredged or fill material 
into all waters of the US if the activity meets all of the following 
criteria:
    a. The quantity of discharged material and the volume of area 
excavated do not exceed 25 cubic yards below the plane of the ordinary 
high water mark or the high tide line;
    b. The discharge, including any excavated area, will not cause the 
loss of more than \1/10\-acre of a special aquatic site, including 
wetlands. For the purposes of this NWP, the acreage limitation includes 
the filled area and excavated area plus special aquatic sites that are 
adversely affected by flooding and special aquatic sites that are 
drained so that they would no longer be a water of the US as a result 
of the project;
    c. If the discharge, including any excavated area, exceeds 10 cubic 
yards below the plane of the ordinary high water mark or the high tide 
line or if the discharge is in a special aquatic site, including 
wetlands, the permittee notifies the District Engineer in accordance 
with the ``Notification'' General Condition. For discharges in special 
aquatic sites, including wetlands, the notification must also include a 
delineation of affected special aquatic sites, including wetlands (also 
see 33 CFR 330.1(e)); and
    d. The discharge, including all attendant features, both temporary 
and permanent, is part of a single and complete project and is not 
placed for the purpose of a stream diversion. (Sections 10 and 404)
    19. Minor Dredging. Dredging of no more than 25 cubic yards below 
the plane of the ordinary high water mark or the mean high water mark 
from navigable waters of the US (i.e., Section 10 waters) as part of a 
single and complete project. This NWP does not authorize the dredging 
or degradation through siltation of coral reefs, sites that support 
submerged aquatic vegetation (including sites where submerged aquatic 
vegetation is documented to exist, but may not be present in a given 
year), anadromous fish spawning areas, or wetlands, or the connection 
of canals or other artificial waterways to navigable waters of the US 
(see 33 CFR 322.5(g)). (Sections 10 and 404)
    20. Oil Spill Cleanup. Activities required for the containment and 
cleanup of oil and hazardous substances which are subject to the 
National Oil and Hazardous Substances Pollution Contingency Plan (40 
CFR part 300) provided that the work is done in accordance with the 
Spill Control and Countermeasure Plan required by 40 CFR part 112.3 and 
any existing state contingency plan and provided that the Regional 
Response Team (if one exists in the area) concurs with the proposed 
containment and cleanup action. (Sections 10 and 404)
    21. Surface Coal Mining Activities. Discharges of dredged or fill 
material into waters of the US associated with surface coal mining and 
reclamation operations provided the coal mining activities are 
authorized by the DOI, Office of Surface Mining (OSM), or by states 
with approved programs under Title V of the Surface Mining Control and 
Reclamation Act of 1977 and provided the permittee notifies the 
District Engineer in accordance with the ``Notification'' General 
Condition. In addition, to be authorized by this NWP, the District 
Engineer must determine that the activity complies with the terms and 
conditions of the NWP and that the adverse environmental effects are 
minimal both individually and cumulatively and must notify the project 
sponsor of this determination in writing. The Corps, at the discretion 
of

[[Page 42087]]

the District Engineer, may require a bond to ensure success of the 
mitigation, if no other Federal or state agency has required one. For 
discharges in special aquatic sites, including wetlands, and stream 
riffle and pool complexes, the notification must also include a 
delineation of affected special aquatic sites, including wetlands. 
(also, see 33 CFR 330.1(e))
    Mitigation: In determining the need for as well as the level and 
type of mitigation, the District Engineer will ensure no more than 
minimal adverse effects to the aquatic environment occur. As such, 
District Engineers will determine on a case-by-case basis the 
requirement for adequate mitigation to ensure the effects to aquatic 
systems are minimal. In cases where OSM or the state has required 
mitigation for the loss of aquatic habitat, the Corps may consider this 
in determining appropriate mitigation under Section 404.
    22. Removal of Vessels. Temporary structures or minor discharges of 
dredged or fill material required for the removal of wrecked, 
abandoned, or disabled vessels, or the removal of man-made obstructions 
to navigation. This NWP does not authorize the removal of vessels 
listed or determined eligible for listing on the National Register of 
Historic Places unless the District Engineer is notified and indicates 
that there is compliance with the ``Historic Properties'' General 
Condition. This NWP does not authorize maintenance dredging, shoal 
removal, or riverbank snagging. Vessel disposal in waters of the US may 
need a permit from EPA (see 40 CFR 229.3). (Sections 10 and 404)
    23. Approved Categorical Exclusions. Activities undertaken, 
assisted, authorized, regulated, funded, or financed, in whole or in 
part, by another Federal agency or department where that agency or 
department has determined, pursuant to the Council on Environmental 
Quality Regulation for Implementing the Procedural Provisions of the 
National Environmental Policy Act (NEPA) (40 CFR part 1500 et seq.), 
that the activity, work, or discharge is categorically excluded from 
environmental documentation, because it is included within a category 
of actions which neither individually nor cumulatively have a 
significant effect on the human environment, and the Office of the 
Chief of Engineers (ATTN: CECW-OR) has been furnished notice of the 
agency's or department's application for the categorical exclusion and 
concurs with that determination. Before approval for purposes of this 
NWP of any agency's categorical exclusions, the Chief of Engineers will 
solicit public comment. In addressing these comments, the Chief of 
Engineers may require certain conditions for authorization of an 
agency's categorical exclusions under this NWP. (Sections 10 and 404)
    24. State Administered Section 404 Program. Any activity permitted 
by a state administering its own Section 404 permit program pursuant to 
33 U.S.C. 1344(g)-(l) is permitted pursuant to Section 10 of the Rivers 
and Harbors Act of 1899. Those activities that do not involve a Section 
404 state permit are not included in this NWP, but certain structures 
will be exempted by Section 154 of Public Law 94-587, 90 Stat. 2917 (33 
U.S.C. 591) (see 33 CFR 322.3(a)(2)). (Section 10)
    25. Structural Discharges. Discharges of material such as concrete, 
sand, rock, etc., into tightly sealed forms or cells where the material 
will be used as a structural member for standard pile supported 
structures, such as bridges, transmission line footings, and walkways 
or for general navigation, such as mooring cells, including the 
excavation of bottom material from within the form prior to the 
discharge of concrete, sand, rock, etc. This NWP does not authorize 
filled structural members that would support buildings, building pads, 
homes, house pads, parking areas, storage areas and other such 
structures. The structure itself may require a Section 10 permit if 
located in navigable waters of the US. (Section 404)
    26. [Reserved]
    27. Stream and Wetland Restoration Activities. Activities in waters 
of the US 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) Reclaimed surface coal mine lands, in accordance with a Surface 
Mining Control and Reclamation Act permit issued by the OSM or the 
applicable state agency (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
    (3) Any other public, private or tribal lands;
    (b) Notification: For activities on any public or private land that 
are not described by paragraphs (a)(1) or (a)(2) above, the permittee 
must notify the District Engineer in accordance with General Condition 
13; and
    (c) Planting of only native species should occur on the 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 land 
clearing 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)(3), this NWP does not authorize any 
future discharge of dredged or fill material

[[Page 42088]]

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)(2), 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). The reversion must 
occur 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. Before any reversion activity the permittee or the appropriate 
Federal or state agency must notify the District Engineer and include 
the documentation of the prior condition. Once an area has reverted to 
its prior physical condition, it will be subject to whatever the Corps 
Regulatory requirements will be at that future date. (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 US 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. NWP 27 can be used to 
authorized impacts at a mitigation bank, but only in circumstances 
where it has been approved under the Interagency Federal Mitigation 
Bank Guidelines.

    28. Modifications of Existing Marinas. Reconfiguration of existing 
docking facilities within an authorized marina area. No dredging, 
additional slips, dock spaces, or expansion of any kind within waters 
of the US is authorized by this NWP. (Section 10)
    29. Single-family Housing: Discharges of dredged or fill material 
into non-tidal waters of the US, including non-tidal wetlands for the 
construction or expansion of a single-family home and attendant 
features (such as a garage, driveway, storage shed, and/or septic 
field) for an Individual Permittee provided that the activity meets all 
of the following criteria:
    a. The discharge does not cause the loss of more than \1/4\-acre of 
non-tidal waters of the US, including non-tidal wetlands;
    b. The permittee notifies the District Engineer in accordance with 
the ``Notification'' General Condition;
    c. The permittee has taken all practicable actions to minimize the 
on-site and off-site impacts of the discharge. For example, the 
location of the home may need to be adjusted on-site to avoid flooding 
of adjacent property owners;
    d. The discharge is part of a single and complete project; 
furthermore, that for any subdivision created on or after November 22, 
1991, the discharges authorized under this NWP may not exceed an 
aggregate total loss of waters of the US of \1/4\-acre for the entire 
subdivision;
    e. An individual may use this NWP only for a single-family home for 
a personal residence;
    f. This NWP may be used only once per parcel;
    g. This NWP may not be used in conjunction with NWP 14 or NWP 18, 
for any parcel; and,
    h. Sufficient vegetated buffers must be maintained adjacent to all 
open water bodies, streams, etc., to preclude water quality degradation 
due to erosion and sedimentation.
    For the purposes of this NWP, the acreage of loss of waters of the 
US includes the filled area previously permitted, the proposed filled 
area, and any other waters of the US that are adversely affected by 
flooding, excavation, or drainage as a result of the project. This NWP 
authorizes activities only by individuals; for this purpose, the term 
``individual'' refers to a natural person and/or a married couple, but 
does not include a corporation, partnership, or similar entity. For the 
purposes of this NWP, a parcel of land is defined as ``the entire 
contiguous quantity of land in possession of, recorded as property of, 
or owned (in any form of ownership, including land owned as a partner, 
corporation, joint tenant, etc.) by the same individual (and/or that 
individual's spouse), and comprises not only the area of wetlands 
sought to be filled, but also all land contiguous to those wetlands, 
owned by the individual (and/or that individual's spouse) in any form 
of ownership.'' (Section 10 and 404)
    30. Moist Soil Management for Wildlife. Discharges of dredged or 
fill material and maintenance activities that are associated with moist 
soil management for wildlife performed on non-tidal Federally-owned or 
managed and state-owned or managed property, for the purpose of 
continuing ongoing, site-specific, wildlife management activities where 
soil manipulation is used to manage habitat and feeding areas for 
wildlife. Such activities include, but are not limited to: The repair, 
maintenance or replacement of existing water control structures; the 
repair or maintenance of dikes; and plowing or discing to impede 
succession, prepare seed beds, or establish fire breaks. Sufficient 
vegetated buffers must be maintained adjacent to all open water bodies, 
streams, etc., to preclude water quality degradation due to erosion and 
sedimentation. This NWP does not authorize the construction of new 
dikes, roads, water control structures, etc. associated with the 
management areas. This NWP does not authorize converting wetlands to 
uplands, impoundments or other open water bodies. (Section 404)
    31. Maintenance of Existing Flood Control Facilities. Discharge of 
dredge or fill material resulting from activities associated with the 
maintenance of existing flood control facilities, including debris 
basins, retention/detention basins, and channels that
    (i) were previously authorized by the Corps by Individual Permit, 
General Permit, by 33 CFR 330.3, or did not require a permit at the 
time it was constructed, or
    (ii) were constructed by the Corps and transferred to a non-Federal 
sponsor for operation and maintenance. Activities authorized by this 
NWP are limited to those resulting from maintenance activities that are 
conducted within the ``maintenance baseline,'' as described in the 
definition below. Activities including the discharges of dredged or 
fill materials, associated with maintenance activities in flood control 
facilities in any watercourse that has previously been determined to be 
within the maintenance baseline, are authorized under this NWP. The NWP 
does not authorize the removal of sediment and associated vegetation 
from the natural water courses except to the extent that these have 
been included in the maintenance baseline. All dredged material must be 
placed in an upland site or an authorized disposal site in

[[Page 42089]]

waters of the US, and proper siltation controls must be used. 
(Activities of any kind that result in only incidental fallback, or 
only the cutting and removing of vegetation above the ground, e.g., 
mowing, rotary cutting, and chainsawing, where the activity neither 
substantially disturbs the root system nor involves mechanized pushing, 
dragging, or other similar activities that redeposit excavated soil 
material, do not require a Section 404 permit in accordance with 33 CFR 
323.2(d)(2)(ii)).
    Notification: After the maintenance baseline is established, and 
before any maintenance work is conducted, the permittee must notify the 
District Engineer in accordance with the ``Notification'' General 
Condition. The notification may be for activity-specific maintenance or 
for maintenance of the entire flood control facility by submitting a 
five year (or less) maintenance plan.
    Maintenance Baseline: The maintenance baseline is a description of 
the physical characteristics (e.g., depth, width, length, location, 
configuration, or design flood capacity, etc.) of a flood control 
project within which maintenance activities are normally authorized by 
NWP 31, subject to any case-specific conditions required by the 
District Engineer. The District Engineer will approve the maintenance 
baseline based on the approved or constructed capacity of the flood 
control facility, whichever is smaller, including any areas where there 
are no constructed channels, but which are part of the facility. If no 
evidence of the constructed capacity exist, the approved constructed 
capacity will be used. The prospective permittee will provide 
documentation of the physical characteristics of the flood control 
facility (which will normally consist of as-built or approved drawings) 
and documentation of the design capacities of the flood control 
facility. The documentation will also include BMPs to ensure that the 
impacts to the aquatic environment are minimal, especially in 
maintenance areas where there are no constructed channels. (The Corps 
may request maintenance records in areas where there has not been 
recent maintenance.). Revocation or modification of the final 
determination of the maintenance baseline can only be done in 
accordance with 33 CFR 330.5. Except in emergencies as described below, 
this NWP can not be used until the District Engineer approves the 
maintenance baseline and determines the need for mitigation and any 
regional or activity-specific conditions. Once determined, the 
maintenance baseline will remain valid for any subsequent reissuance of 
this NWP. This permit does not authorize maintenance of a flood control 
facility has been abandoned. A flood control facility will be 
considered abandoned if it has operated at a significantly reduced 
capacity without needed maintenance being accomplished in a timely 
manner.
    Mitigation: The District Engineer will determine any required 
mitigation one-time only for impacts associated with maintenance work 
at the same time that the maintenance baseline is approved. Such one-
time mitigation will be required when necessary to ensure that adverse 
environmental impacts are no more than minimal, both individually and 
cumulatively. Such mitigation will only be required once for any 
specific reach of a flood control project. However, if one-time 
mitigation is required for impacts associated with maintenance 
activities, the District Engineer will not delay needed maintenance, 
provided the District Engineer and the permittee establish a schedule 
for identification, approval, development, construction and completion 
of any such required mitigation. Once the one-time mitigation described 
above has been completed, or a determination made that mitigation is 
not required, no further mitigation will be required for maintenance 
activities within the maintenance baseline. In determining appropriate 
mitigation, the District Engineer will give special consideration to 
natural water courses that have been included in the maintenance 
baseline and require compensatory mitigation and/or BMPs as 
appropriate.
    Emergency Situations: In emergency situations, this NWP may be used 
to authorize maintenance activities in flood control facilities for 
which no maintenance baseline has been approved. Emergency situations 
are those which would result in an unacceptable hazard to life, a 
significant loss of property, or an immediate, unforeseen, and 
significant economic hardship if action is not taken before a 
maintenance baseline can be approved. In such situations, the 
determination of mitigation requirements, if any, may be deferred until 
the emergency has been resolved. Once the emergency has ended, a 
maintenance baseline must be established expeditiously, and mitigation, 
including mitigation for maintenance conducted during the emergency, 
must be required as appropriate. (Sections 10 and 404)
    32. Completed Enforcement Actions. Any structure, work or discharge 
of dredged or fill material, remaining in place, or undertaken for 
mitigation, restoration, or environmental benefit in compliance with 
either:
    (i) The terms of a final written Corps non-judicial settlement 
agreement resolving a violation of Section 404 of the CWA and/or 
Section 10 of the Rivers and Harbors Act of 1899; or the terms of an 
EPA 309(a) order on consent resolving a violation of Section 404 of the 
CWA, provided that:
    a. The unauthorized activity affected no more than 5 acres of non-
tidal wetlands or 1 acre of tidal wetlands;
    b. The settlement agreement provides for environmental benefits, to 
an equal or greater degree, than the environmental detriments caused by 
the unauthorized activity that is authorized by this NWP; and
    c. The District Engineer issues a verification letter authorizing 
the activity subject to the terms and conditions of this NWP and the 
settlement agreement, including a specified completion date; or
    (ii) The terms of a final Federal court decision, consent decree, 
or settlement agreement resulting from an enforcement action brought by 
the U.S. under Section 404 of the CWA and/or Section 10 of the Rivers 
and Harbors Act of 1899. For either (i) or (ii) above, compliance is a 
condition of the NWP itself. Any authorization under this NWP is 
automatically revoked if the permittee does not comply with the terms 
of this NWP or the terms of the court decision, consent decree, or 
judicial/non-judicial settlement agreement or fails to complete the 
work by the specified completion date. This NWP does not apply to any 
activities occurring after the date of the decision, decree, or 
agreement that are not for the purpose of mitigation, restoration, or 
environmental benefit. Before reaching any settlement agreement, the 
Corps will ensure compliance with the provisions of 33 CFR part 326 and 
33 CFR 330.6 (d)(2) and (e). (Sections 10 and 404)
    33. Temporary Construction, Access and Dewatering. Temporary 
structures, work and discharges, including cofferdams, necessary for 
construction activities or access fills or dewatering of construction 
sites; provided that the associated primary activity is authorized by 
the Corps of Engineers or the USCG, or for other construction 
activities not subject to the Corps or USCG regulations. Appropriate 
measures must be taken to maintain near normal downstream flows and to 
minimize flooding. Fill must be of materials, and placed in a manner, 
that will not be eroded by expected high flows. The use of dredged 
material may be allowed if it is determined by the District Engineer

[[Page 42090]]

that it will not cause more than minimal adverse effects on aquatic 
resources. Temporary fill must be entirely removed to upland areas, or 
dredged material returned to its original location, following 
completion of the construction activity, and the affected areas must be 
restored to the pre-project conditions. Cofferdams cannot be used to 
dewater wetlands or other aquatic areas to change their use. Structures 
left in place after cofferdams are removed require a Section 10 permit 
if located in navigable waters of the US (See 33 CFR part 322). The 
permittee must notify the District Engineer in accordance with the 
``Notification'' General Condition. The notification must also include 
a restoration plan of reasonable measures to avoid and minimize adverse 
effects to aquatic resources. The District Engineer will add Special 
Conditions, where necessary, to ensure environmental adverse effects is 
minimal. Such conditions may include: limiting the temporary work to 
the minimum necessary; requiring seasonal restrictions; modifying the 
restoration plan; and requiring alternative construction methods (e.g. 
construction mats in wetlands where practicable.). (Sections 10 and 
404)
    34. Cranberry Production Activities. Discharges of dredged or fill 
material for dikes, berms, pumps, water control structures or leveling 
of cranberry beds associated with expansion, enhancement, or 
modification activities at existing cranberry production operations 
provided that the activity meets all of the following criteria:
    a. The cumulative total acreage of disturbance per cranberry 
production operation, including but not limited to, filling, flooding, 
ditching, or clearing, does not exceed 10 acres of waters of the US, 
including wetlands;
    b. The permittee notifies the District Engineer in accordance with 
the ``Notification'' General Condition. The notification must include a 
delineation of affected special aquatic sites, including wetlands; and,
    c. The activity does not result in a net loss of wetland acreage. 
This NWP does not authorize any discharge of dredged or fill material 
related to other cranberry production activities such as warehouses, 
processing facilities, or parking areas. For the purposes of this NWP, 
the cumulative total of 10 acres will be measured over the period that 
this NWP is valid. (Section 404)
    35. Maintenance Dredging of Existing Basins. Excavation and removal 
of accumulated sediment for maintenance of existing marina basins, 
access channels to marinas or boat slips. Additionally, dredging boat 
slips to previously authorized depths or dredging to controlling depths 
for ingress/egress, provided the dredged material is disposed of at an 
upland site and proper siltation controls are used. (Section 10)
    36. Boat Ramps. Activities required for the construction of boat 
ramps provided:
    a. The discharge into waters of the US does not exceed 50 cubic 
yards of concrete, rock, crushed stone or gravel into forms, or 
placement of pre-cast concrete planks or slabs. (unsuitable material 
that causes unacceptable chemical pollution or is structurally unstable 
is not authorized);
    b. The boat ramp does not exceed 20 feet in width;
    c. The base material is crushed stone, gravel or other suitable 
material;
    d. The excavation is limited to the area necessary for site 
preparation and all excavated material is removed to the upland; and,
    e. No material is placed in special aquatic sites, including 
wetlands.
    Another NWP, Regional General Permit, or Individual Permit may 
authorize dredging to provide access to the boat ramp after obtaining a 
Section 10 if located in navigable waters of the US. (Sections 10 and 
404)
    37. Emergency Watershed Protection and Rehabilitation. Work done by 
or funded by:
    a. The NRCS which is a situation requiring immediate action under 
its emergency Watershed Protection Program (7 CFR part 624); and
    b. Work done or funded by the USFS under its Burned-Area Emergency 
Rehabilitation Handbook (FSH 509.13); or
    c. Work done or funded by the DOI for wildland fire management 
burned area emergency stabilization and rehabilitation (DOI Manual Part 
620, Ch. 3);
    For all of the above provisions, the District Engineer must be 
notified in accordance with the General Condition 13. (Also, see 33 CFR 
330.1(e)). (Sections 10 and 404)
    38. Cleanup of Hazardous and Toxic Waste. Specific activities 
required to effect the containment, stabilization, or removal of 
hazardous or toxic waste materials that are performed, ordered, or 
sponsored by a government agency with established legal or regulatory 
authority provided the permittee notifies the District Engineer in 
accordance with the ``Notification'' General Condition. For discharges 
in special aquatic sites, including wetlands, the notification must 
also include a delineation of affected special aquatic sites, including 
wetlands. Court ordered remedial action plans or related settlements 
are also authorized by this NWP. This NWP does not authorize the 
establishment of new disposal sites or the expansion of existing sites 
used for the disposal of hazardous or toxic waste. Activities 
undertaken entirely on a Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) site by authority of CERCLA as 
approved or required by EPA, are not required to obtain permits under 
Section 404 of the CWA or Section 10 of the Rivers and Harbors Act. 
(Sections 10 and 404)
    39. Residential, Commercial, and Institutional Developments. 
Discharges of dredged or fill material into non-tidal waters of the US, 
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 the 
activities meet all of the following criteria:
    a. The discharge does not cause the loss of greater than \1/10\-
acre of non-tidal waters of the US, excluding non-tidal wetlands 
adjacent to tidal waters;
    b. The discharge does not cause the loss of greater than 300 
linear-feet of a stream bed, unless this criterion is waived in writing 
pursuant to a determination by the District Engineer, as specified 
below, that the project complies with all terms and conditions of this 
NWP and that any adverse impacts of the project on the aquatic 
environment are minimal, both individually and cumulatively;
    c. The permittee must notify the District Engineer in accordance 
with General Condition 13, if any of the following criteria are met:

[[Page 42091]]

    (1) The discharge causes the loss of greater than \1/10\-acre of 
non-tidal waters of the US, 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, below); or
    (3) The discharge causes the loss of greater than 300 linear feet 
of perennial or intermittent stream bed. In such case, to be authorized 
the District Engineer must determine that the activity complies with 
the other terms and conditions of the NWP, determine adverse 
environmental effects are minimal both individually and cumulatively, 
and waive the limitation on stream impacts in writing before the 
permittee may proceed;
    d. For discharges in special aquatic sites, including wetlands, the 
notification must include a delineation of affected special aquatic 
sites;
    e. The discharge is part of a single and complete project;
    f. The permittee must avoid and minimize discharges into waters of 
the US at the project site to the maximum extent practicable. The 
notification, when required, must include a written statement 
explaining how avoidance and minimization of losses of waters of the US 
were achieved on the project site. Compensatory mitigation will 
normally be required to offset the losses of waters of the US. (See 
General Condition 19.) The notification must also include a 
compensatory mitigation proposal for offsetting unavoidable losses of 
waters of the US. If an applicant asserts that the adverse effects of 
the project are minimal without mitigation, then the applicant may 
submit justification explaining why compensatory mitigation should not 
be required for the District Engineer's consideration;
    g. When this NWP is used in conjunction with any other NWP, any 
combined total permanent loss of waters of the US exceeding \1/10\-acre 
requires that the permittee notify the District Engineer in accordance 
with General Condition 13;
    h. 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);
    i. For discharges causing the loss of \1/10\-acre or less of waters 
of the US, 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 of the loss of waters of the US (e.g., 
\1/12\-acre of emergent wetlands); and (5) The type and acreage of any 
compensatory mitigation used to offset the loss of waters of the US 
(e.g., \1/12\-acre of emergent wetlands created on-site); and
    j. 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 next 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.
    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. The compensatory 
mitigation proposal that is 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 be determined on a 
case-by-case basis by the District Engineer for addressing water 
quality concerns. 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 US to increase production or construct farm buildings, NWP 39 
cannot be used by the developer to authorize additional activities. 
This is more than the acreage limit for NWP 39 impacts to waters of the 
US (i.e., the combined acreage loss authorized under NWPs 39 and 40 
cannot exceed \1/2\-acre, see General Condition 15).
    SUBDIVISIONS: For residential subdivisions, the aggregate total 
loss of waters of US authorized by NWP 39 can not exceed \1/2\-acre. 
This includes any loss of waters associated with development of 
individual subdivision lots. (Sections 10 and 404)

    Note: Areas where wetland vegetation is not present should be 
determined by the presence or absence of an ordinary high water mark 
or bed and bank. Areas that are waters of the US based on this 
criterion would require a PCN although water is infrequently present 
in the stream channel (except for ephemeral waters, which do not 
require PCNs).

    40. Agricultural Activities. Discharges of dredged or fill material 
into non-tidal waters of the US, excluding non-tidal wetlands adjacent 
to tidal waters, for 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 land clearing; land leveling; the 
relocation of existing serviceable drainage ditches constructed in 
waters of the US; 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 an 
United States Department of Agriculture (USDA) Program participant:
    (1) The permittee must obtain a categorical minimal effects 
exemption, minimal effect exemption, or mitigation exemption from NRCS 
in accordance with the provisions of the Food Security Act of 1985, as 
amended (16 U.S.C. 3801 et seq.);
    (2) The discharge into non-tidal wetlands does not result in the 
loss of greater than \1/2\-acre of non-tidal wetlands on a farm tract;
    (3) The permittee must have NRCS-certified wetland delineation;
    (4) The permittee must implement an NRCS-approved compensatory 
mitigation plan that fully offsets wetland losses, if required; and
    (5) 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., \1/3\-acre of emergent wetlands); and (e) 
The type, acreage (or square feet), and location of compensatory 
mitigation (e.g. \1/3\-acre of emergent wetland on farm tract; credits 
purchased from a mitigation bank); 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 (or a USDA Program participant for which the 
proposed work does not qualify for authorization under paragraph (a) of 
this NWP):
    (1) The discharge into non-tidal wetlands does not result in the 
loss of greater than \1/2\-acre of non-tidal wetlands on a farm tract;
    (2) The permittee must notify the District Engineer in accordance 
with General Condition 13, if the discharge results in the loss of 
greater than 
\1/10\-acre of non-tidal wetlands;

[[Page 42092]]

    (3) The notification must include a delineation of affected 
wetlands; and
    (4) The notification must include a compensatory mitigation 
proposal to offset losses of waters of the US; or
    c. For the construction of building pads for farm buildings, the 
discharge does not cause the loss of greater than \1/2\-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; and
    d. Any activity in other waters of the US is limited to the 
relocation of existing serviceable drainage ditches constructed in non-
tidal streams. This NWP does not authorize the relocation of greater 
than 300 linear-feet of existing serviceable drainage ditches 
constructed in non-tidal streams unless the District Engineer waives 
this criterion in writing, and the District Engineer has determined 
that the project complies with all terms and conditions of this NWP, 
and that any adverse impacts of the project on the aquatic environment 
are minimal, both individually and cumulatively. For impacts exceeding 
300-linear feet of impacts to existing serviceable ditches, the 
permittee must notify the District Engineer in accordance with the 
``Notification'' General Condition 13; and
    e. The term ``farm tract'' refers to a parcel of land identified by 
the Farm Service Agency. The Corps will identify other waters of the US 
on the farm tract. 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 US 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 US associated with completing required 
compensatory mitigation are authorized by this NWP. However, total 
impacts, including other authorized impacts under this NWP, may not 
exceed the \1/2\-acre limit of this NWP. 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 CWA, even though a categorical minimal effects exemption, minimal 
effect exemption, or mitigation exemption from NRCS pursuant to the 
Food Security Act of 1985, as amended, may be required. Activities 
authorized by paragraphs a. through d. may not exceed a total of \1/2\-
acre on a single 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 US 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 US on the site, the 
combined acreage loss authorized by NWPs 39 and 40 cannot exceed \1/2\-
acre (see General Condition 15). (Section 404)
    41. Reshaping Existing Drainage Ditches. Discharges of dredged or 
fill material into non-tidal waters of the US, excluding non-tidal 
wetlands adjacent to tidal waters, to modify the cross-sectional 
configuration of currently serviceable drainage ditches constructed in 
waters of the US. The reshaping of the ditch cannot increase drainage 
capacity beyond the original design capacity. Nor can it expand the 
area drained by the ditch as originally designed (i.e., the capacity of 
the ditch must be the same as originally designed and it cannot drain 
additional wetlands or other waters of the US). 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.).
    Notification: The permittee must notify the District Engineer in 
accordance with General Condition 13 if greater than 500 linear feet of 
drainage ditch will be reshaped. Material resulting from excavation may 
not be permanently sidecast into waters but may be temporarily sidecast 
(up to three months) into waters of the US, provided the material is 
not placed in such a manner that it is dispersed by currents or other 
forces. The District Engineer may extend the period of temporary 
sidecasting not to exceed a total of 180 days, where appropriate. This 
NWP does not apply to reshaping drainage ditches constructed in 
uplands, since these areas are not waters of the US, 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 US; 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 US, excluding non-tidal wetlands adjacent 
to tidal waters, for the construction or expansion of recreational 
facilities, provided the activity meets all of the following criteria:
    a. The discharge does not cause the loss of greater than \1/2\-acre 
of non-tidal waters of the US, excluding non-tidal wetlands adjacent to 
tidal waters;
    b. The discharge does not cause the loss of greater than 300 
linear-feet of a stream bed, unless this criterion is waived in writing 
pursuant to a determination by the District Engineer, as specified 
below, that the project complies with all terms and conditions of this 
NWP and that any adverse impacts of the project on the aquatic 
environment are minimal, both individually and cumulatively;
    c. The permittee notifies the District Engineer in accordance with 
the ``Notification'' General Condition 13 for discharges exceeding 300 
linear feet of impact to perennial or intermittent stream beds. In such 
cases, to be authorized the District Engineer must determine that the 
activity complies with the other terms and conditions of the NWP, 
determine the adverse environmental effects are minimal both 
individually and cumulatively, and waive this limitation in writing 
before the permittee may proceed;
    d. For discharges causing the loss of greater than 1/10-acre of 
non-tidal waters of the US, the permittee notifies the District 
Engineer in accordance with General Condition 13;
    e. For discharges in special aquatic sites, including wetlands, the 
notification must include a delineation of affected special aquatic 
sites;
    f. The discharge is part of a single and complete project; and
    g. Compensatory mitigation will normally be required to offset the 
losses of waters of the US. The notification must also include a 
compensatory mitigation proposal to offset authorized losses of waters 
of the US.
    For the purposes of this NWP, the term ``recreational facility'' is 
defined as a recreational activity that is integrated into the natural 
landscape and does not

[[Page 42093]]

substantially change 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). This NWP may authorize the construction or expansion of 
golf courses and the expansion of ski areas, provided the golf course 
or ski area does not substantially deviate from natural landscape 
contours. Additionally, these activities are designed to minimize 
adverse effects to waters of the US 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 US, 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; the installation and maintenance of water control 
structures, outfall structures and emergency spillways; and the 
maintenance dredging of existing stormwater management ponds/facilities 
and detention and retention basins, provided the activity meets all of 
the following criteria:
    a. The discharge for the construction of new stormwater management 
facilities does not cause the loss of greater than \1/2\-acre of non-
tidal waters of the US, excluding non-tidal wetlands adjacent to tidal 
waters;
    b. The discharge does not cause the loss of greater than 300 
linear-feet of a stream bed, unless this criterion is waived in writing 
pursuant to a determination by the District Engineer, as specified 
below, that the project complies with all terms and conditions of this 
NWP and that any adverse impacts of the project on the aquatic 
environment are minimal, both individually and cumulatively;
    c. For discharges causing the loss of greater than 300 linear feet 
of perennial or intermittent stream beds, the permittee notifies the 
District Engineer in accordance with the ``Notification'' General 
Condition 13. In such cases, to be authorized the District Engineer 
must determine that the activity complies with the other terms and 
conditions of the NWP, determine the adverse environmental effects are 
minimal both individually and cumulatively, and waive this limitation 
in writing before the permittee may proceed;
    d. The discharges of dredged or fill material for the construction 
of new stormwater management facilities in perennial streams is not 
authorized;
    e. 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/
10\-acre of non-tidal waters, excluding non-tidal wetlands adjacent to 
tidal waters, provided the permittee notifies the District Engineer in 
accordance with the ``Notification'' 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 US. 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 that are exempt from Section 404 permit requirements);
    f. The permittee must avoid and minimize discharges into waters of 
the US 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 US and why additional minimization cannot be 
achieved);
    g. The stormwater management facility must comply with General 
Condition 21 and be designed using BMPs and watershed protection 
techniques. Examples may include forebays (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;
    h. 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
    i. 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 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/or
    (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 US, plus the acreage loss of 
waters of the US resulting from support activities, cannot exceed \1/
2\-acre;
    b. The permittee must avoid and minimize discharges into waters of 
the US at the project site to the maximum extent practicable, and the 
notification must include a written statement detailing compliance with 
this

[[Page 42094]]

condition (i.e., why the discharge must occur in waters of the US and 
why additional minimization cannot be achieved);
    c. 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;
    d. The permittee must implement necessary measures to prevent 
increases in stream gradient and water velocities and to prevent 
adverse effects (e.g., head cutting, bank erosion) to upstream and 
downstream channel conditions;
    e. Activities authorized by this permit must not result in adverse 
effects on the course, capacity, or condition of navigable waters of 
the US;
    f. The permittee must use measures to minimize downstream 
turbidity;
    g. Wetland impacts must be compensated through mitigation approved 
by the Corps;
    h. Beneficiation and mineral processing for hard rock/mineral 
mining activities 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 CWA Section 402 permit may be 
required;
    i. All activities authorized must comply with General Conditions 9 
and 21. Further, the District Engineer may require modifications to the 
required water quality management plan to ensure that the authorized 
work results in minimal adverse effects to water quality;
    j. Except for aggregate mining activities in lower perennial 
streams, 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 US 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);
    k. Single and complete project: The discharge must be for a single 
and complete project, including support activities. Discharges of 
dredged or fill material into waters of the US for multiple mining 
activities on several designated parcels of a single and complete 
mining operation can be authorized by this NWP provided the \1/2\-acre 
limit is not exceeded; and
    l. Notification: The permittee must notify the District Engineer in 
accordance with General Condition 13. The notification must include: 
(1) A description of waters of the US adversely affected by the 
project; (2) A written statement to the District Engineer detailing 
compliance with paragraph (b), above (i.e., why the discharge must 
occur in waters of the US and why additional minimization cannot be 
achieved); (3) A description of measures taken to ensure that the 
proposed work complies with paragraphs (c) through (f), 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 US within 100 feet of the ordinary high water mark of 
headwater streams. The term's ``headwaters'' and ``isolated waters'' 
are defined at 33 CFR 330.2(d) and (e), respectively. For the purposes 
of this NWP, the term ``lower perennial stream'' is defined as follows: 
``A stream in which the gradient is low and water velocity is slow, 
there is no tidal influence, some water flows throughout the year, and 
the substrate consists mainly of sand and mud.'' (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 necessary life-cycle movements of those species of aquatic life 
indigenous to the waterbody, including those species that normally 
migrate through the area, unless the activity's primary purpose is to 
impound water. Culverts placed in streams must be installed to maintain 
low flow conditions.
    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 that may have been added by the Division 
Engineer (see 33 CFR 330.4(e)). Additionally, 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. (a) In certain states and tribal lands an 
individual 401 Water Quality Certification must be obtained or waived 
(See 33 CFR 330.4(c)).
    (b) 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 or approve water quality management measures, the 
permittee must provide water quality management measures that will 
ensure that the authorized work does not result in more than minimal 
degradation of water quality (or the Corps determines that compliance 
with state or local standards, where applicable, will ensure no more 
than minimal adverse effect on water quality). An important component 
of water quality management includes stormwater management that 
minimizes degradation of the downstream aquatic system, including water 
quality (refer to General Condition 21 for stormwater management 
requirements). Another important component of water quality management 
is the establishment and maintenance of vegetated buffers next to open 
waters, including streams (refer to

[[Page 42095]]

General Condition 19 for vegetated buffer requirements for the NWPs).
    This condition is only applicable to projects that have the 
potential to affect water quality. While appropriate measures must be 
taken, in most cases it is not necessary to conduct detailed studies to 
identify such measures or to require monitoring.
    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 (ESA), 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 not begin work on the activity until notified by the 
District Engineer that the requirements of the ESA have been satisfied 
and that the activity is authorized. For activities that may affect 
Federally-listed endangered or threatened species or designated 
critical habitat, the 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 NWP does not authorize the 
``take'' of a threatened or endangered species as defined under the 
ESA. In the absence of separate authorization (e.g., an ESA Section 10 
Permit, a Biological Opinion with ``incidental take'' provisions, etc.) 
from the USFWS or the NMFS, both lethal and non-lethal ``takes'' of 
protected species are in violation of the ESA. Information on the 
location of threatened and endangered species and their critical 
habitat can be obtained directly from the offices of the USFWS and NMFS 
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 District Engineer 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. Sketches should be 
provided when necessary to show that the activity complies with the 
terms of the NWP (Sketches usually clarify the project and when 
provided result in a quicker decision.); 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 14 (Linear Transportation Crossings), The PCN must 
include a compensatory mitigation proposal to offset permanent losses 
of waters of the US and a statement describing how temporary losses of 
waters of the US will be minimized to the maximum extent practicable.
    (7) For NWP 21 (Surface Coal Mining Activities), the PCN must 
include an Office of Surface Mining (OSM) or state-approved mitigation 
plan, if applicable.
    (8) For NWP 27 (Stream and Wetland Restoration), the PCN must 
include documentation of the prior condition of the site that will be 
reverted by the permittee.
    (9) 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 \1/4\-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 \1/4\-acre in size, formal wetland 
delineation must be prepared in accordance with the current

[[Page 42096]]

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;
    (10) 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 identifying 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.
    (11) 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.
    (12) For NWPs 39, 43 and 44, the PCN must also include a written 
statement to the District Engineer explaining how avoidance and 
minimization for losses of waters of the US were achieved on the 
project site.
    (13) For NWP 39 and NWP 42, the PCN must include a compensatory 
mitigation proposal to offset losses of waters of the US or 
justification explaining why compensatory mitigation should not be 
required.
    (14) For NWP 40 (Agricultural Activities), the PCN must include a 
compensatory mitigation proposal to offset losses of waters of the US.
    (15) 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 US.
    (16) For NWP 44 (Mining Activities), the PCN must include a 
description of all waters of the US adversely affected by the project, 
a description of measures taken to minimize adverse effects to waters 
of the US, a description of measures taken to comply with the criteria 
of the NWP, and a reclamation plan (for all aggregate mining activities 
in isolated waters and non-tidal wetlands adjacent to headwaters and 
any hard rock/mineral mining activities).
    (17) For activities that may adversely affect Federally-listed 
endangered or threatened species, the PCN must include the name(s) of 
those endangered or threatened species that may be affected by the 
proposed work or utilize the designated critical habitat that may be 
affected by the proposed work.
    (18) For activities that may affect historic properties listed in, 
or eligible for listing in, the National Register of Historic Places, 
the PCN must state which historic property may be affected by the 
proposed work or include a vicinity map indicating the location of the 
historic property.
    (c) Form of 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)-(18) 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 submit a 
proposed mitigation plan with the PCN to expedite the process. 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, after 
considering mitigation, the District Engineer will notify the permittee 
and include any conditions the District Engineer deems necessary. The 
District Engineer must approve any compensatory mitigation proposal 
before the permittee commences work. If the prospective permittee 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. The response will 
state that the project can proceed under the terms and conditions of 
the NWP.
    If the District Engineer determines that the adverse effects of the 
proposed work are more than minimal, then the District Engineer will 
notify the applicant either: (1) That the project does not qualify for 
authorization under the NWP and instruct the applicant on the 
procedures to seek authorization under an Individual Permit; (2) that 
the project is authorized under the NWP subject to the applicant's 
submission of a mitigation proposal that would reduce the adverse 
effects on the aquatic environment to the minimal level; or (3) that 
the project is authorized under the NWP with specific modifications or 
conditions. Where the District Engineer determines that mitigation is 
required to ensure no more than minimal adverse effects occur to the 
aquatic environment, the activity will be authorized within the 45-day 
PCN period. The authorization will include the necessary conceptual or 
specific mitigation or a requirement that the applicant submit a 
mitigation proposal that would reduce the adverse effects on the 
aquatic environment to the minimal level. When conceptual mitigation is 
included, or a mitigation plan is required under item (2) above, no 
work in waters of the US 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 \1/2\-acre of waters of the US, the 
District Engineer will provide immediately (e.g., via facsimile 
transmission, overnight mail, or other expeditious manner) a copy to 
the

[[Page 42097]]

appropriate Federal or state offices (USFWS, state natural resource or 
water quality agency, EPA, State Historic Preservation Officer (SHPO), 
and, if appropriate, the NMFS). With the exception of NWP 37, these 
agencies will then have 10 calendar days from the date the material is 
transmitted to telephone or fax the District Engineer notice that they 
intend to provide substantive, site-specific comments. If so contacted 
by an agency, the District Engineer will wait an additional 15 calendar 
days before making a decision on the notification. The District 
Engineer will fully consider agency comments received within the 
specified time frame, but will provide no response to the resource 
agency, except as provided below. The District Engineer will indicate 
in the administrative record associated with each notification that the 
resource agencies' concerns were considered. As required by Section 
305(b)(4)(B) of the Magnuson-Stevens Fishery Conservation and 
Management Act, the District Engineer will provide a response to NMFS 
within 30 days of receipt of any Essential Fish Habitat conservation 
recommendations. Applicants are encouraged to provide the Corps 
multiple copies of notifications to expedite agency notification.
    (f) Wetland Delineations: Wetland delineations must be prepared in 
accordance with the current method required by the Corps (For NWP 29 
see paragraph (b)(9)(iii) for parcels less than \1/4\-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.
    14. Compliance Certification. Every permittee who has received NWP 
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 US authorized by the NWPs does not exceed 
the acreage limit of the NWP with the highest specified acreage limit 
(e.g. 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 US for the total project cannot exceed 1/
3-acre).
    16. Water Supply Intakes. No activity, including structures and 
work in navigable waters of the US 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 US 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 US 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 CWA).
    19. Mitigation. The District Engineer will consider the factors 
discussed below when determining the acceptability of appropriate and 
practicable mitigation necessary to offset adverse effects on the 
aquatic environment that are more than minimal.
    (a) The project must be designed and constructed to avoid and 
minimize adverse effects to waters of the US to the maximum extent 
practicable at the project site (i.e., on site).
    (b) Mitigation in all its forms (avoiding, minimizing, rectifying, 
reducing or compensating) will be required to the extent necessary to 
ensure that the adverse effects to the aquatic environment are minimal.
    (c) Compensatory mitigation at a minimum one-for-one ratio will be 
required for all wetland impacts requiring a PCN, unless the District 
Engineer determines in writing that some other form of mitigation would 
be more environmentally appropriate and provides a project-specific 
waiver of this requirement. Consistent with National policy, the 
District Engineer will establish a preference for restoration of 
wetlands when permittees are required to meet the one-for-one 
compensatory mitigation ratio, with preservation used only in 
exceptional circumstances.
    (d) Compensatory mitigation (i.e., replacement or substitution of 
aquatic resources for those impacted) will not be used to increase the 
acreage losses allowed by the acreage limits of some of the NWPs. For 
example, \1/4\-acre of wetlands cannot be created to change a \3/4\-
acre loss of wetlands to a \1/2\-acre loss associated with NWP 39 
verification. However, \1/2\-acre of created wetlands can be used to 
reduce the impacts of a \1/2\-acre loss of wetlands to the minimum 
impact level in order to meet the minimal impact requirement associated 
with NWPs.
    (e) 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 upland vegetated buffers to protect open waters such as streams; and 
replacing losses of aquatic resource functions and values by creating, 
restoring, enhancing, or preserving similar functions and values, 
preferably in the same watershed.
    (f) Compensatory mitigation plans for projects in or near streams 
or other open waters will normally include a requirement for the 
establishment, maintenance, and legal protection (e.g., easements, deed 
restrictions) of vegetated buffers to open waters. In many cases, 
vegetated buffers will be the only compensatory mitigation required. 
Vegetated buffers should consist of native species. The width of the 
vegetated buffers required will address documented water quality or 
aquatic habitat loss concerns. Normally, the vegetated buffer will be 
25 to 50 feet wide on each side of the stream, but the District 
Engineers may require slightly wider vegetated buffers to address 
documented water quality or habitat loss concerns. Where both wetlands 
and open waters exist on the project site, the Corps will determine the 
appropriate compensatory mitigation (e.g., stream buffers or wetlands 
compensation) based on what is best for the aquatic environment on a 
watershed basis. In cases where vegetated buffers are determined to be 
the most appropriate form of compensatory mitigation, the District 
Engineer may waive the mitigation requirement for wetland impacts.
    (g) Compensatory mitigation proposals submitted with the 
``notification'' may be either conceptual or detailed. If conceptual 
plans are approved under the verification, then the Corps will 
condition the verification

[[Page 42098]]

to require detailed plans be submitted and approved by the Corps prior 
to construction of the authorized activity in waters of the US.
    (h) Permittees may propose the use of mitigation banks, in-lieu fee 
arrangements or separate activity-specific compensatory mitigation. In 
all cases that require compensatory mitigation, the mitigation 
provisions will specify the party responsible for accomplishing and/or 
complying with the mitigation plan.
    20. Spawning Areas. Activities, including structures and work in 
navigable waters of the US 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 activity must be designed to maintain preconstruction downstream 
flow conditions (e.g., location, capacity, and flow rates). 
Furthermore, the activity 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 
activity must, to the maximum extent practicable, provide for retaining 
excess flows from the site, provide for maintaining surface flow rates 
from the site similar to preconstruction conditions, and provide for 
not increasing water flows from the project site, relocating water, or 
redirecting water flow beyond preconstruction conditions. Stream 
channelizing will be reduced to the minimal amount necessary, and the 
activity must, to the maximum extent practicable, reduce adverse 
effects such as flooding or erosion downstream and upstream of the 
project site, unless the activity is part of a larger system designed 
to manage water flows. In most cases, it will not be a requirement to 
conduct detailed studies and monitoring of water flow.
    This condition is only applicable to projects that have the 
potential to affect waterflows. While appropriate measures must be 
taken, it is not necessary to conduct detailed studies to identify such 
measures or require monitoring to ensure their effectiveness. Normally, 
the Corps will defer to state and local authorities regarding 
management of water flow.
    22. Adverse Effects From Impoundments. If the activity creates an 
impoundment of water, adverse effects to the aquatic system due to the 
acceleration of the passage of water, and/or the restricting its flow 
shall be minimized to the maximum extent practicable. This includes 
structures and work in navigable waters of the US, or discharges of 
dredged or fill material.
    23. Waterfowl Breeding Areas. Activities, including structures and 
work in navigable waters of the US 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 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. The District 
Engineer may also designate additional critical resource waters after 
notice and opportunity for comment.
    (a) Except as noted below, discharges of dredged or fill material 
into waters of the US 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 
US 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 USFWS or the NMFS 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 
it is determined that the impacts to the critical resource waters will 
be no more than minimal.
    26. Fills Within 100-Year Floodplains. For purposes of this General 
Condition, 100-year floodplains will be identified through the existing 
Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps 
or FEMA-approved local floodplain maps.
    (a) Discharges in Floodplain; Below Headwaters. Discharges of 
dredged or fill material into waters of the US within the mapped 100-
year floodplain, below headwaters (i.e. five cfs), resulting in 
permanent above-grade fills, are not authorized by NWPs 39, 40, 42, 43, 
and 44.
    (b) Discharges in Floodway; Above Headwaters. Discharges of dredged 
or fill material into waters of the US within the FEMA or locally 
mapped floodway, resulting in permanent above-grade fills, are not 
authorized by NWPs 39, 40, 42, and 44.
    (c) The permittee must comply with any applicable FEMA-approved 
state or local floodplain management requirements.
    27. Construction Period. For activities that have not been verified 
by the Corps and the project was commenced or under contract to 
commence by the expiration date of the NWP (or modification or 
revocation date), the work must be completed within 12-months after 
such date (including any modification that affects the project).
    For activities that have been verified and the project was 
commenced or under contract to commence within the verification period, 
the work must be completed by the date determined by the Corps.
    For projects that have been verified by the Corps, an extension of 
a Corps approved completion date may be requested. This request must be 
submitted at least one month before the previously approved completion 
date.

D. Further Information

    1. District Engineers have authority to determine if an activity 
complies with the terms and conditions of an NWP.
    2. NWPs do not obviate the need to obtain other Federal, state, or 
local permits, approvals, or authorizations required by law.
    3. NWPs do not grant any property rights or exclusive privileges.
    4. NWPs do not authorize any injury to the property or rights of 
others.
    5. NWPs do not authorize interference with any existing or proposed 
Federal project.

E. Definitions

    Best Management Practices (BMPs): BMPs are policies, practices, 
procedures, or structures implemented to mitigate the adverse 
environmental

[[Page 42099]]

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.
    Enhancement: Activities conducted in existing wetlands or other 
aquatic resources that 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 that is 
operated as a farm or part of a farm.
    Flood Fringe: That portion of the 100-year floodplain outside of 
the floodway (often referred to as ``floodway fringe'').
    Floodway: The area regulated by Federal, state, or local 
requirements to provide for the discharge of the base flood so the 
cumulative increase in water surface elevation is no more than a 
designated amount (not to exceed one foot as set by the National Flood 
Insurance Program) within the 100-year floodplain.
    Independent Utility: A test to determine what constitutes a single 
and complete project in the Corps regulatory program. A project is 
considered to have independent utility if it would be constructed 
absent the construction of other projects in the project area. Portions 
of a multi-phase project that depend upon other phases of the project 
do not have independent utility. Phases of a project that would be 
constructed even if the other phases were not built can be considered 
as separate single and complete projects with independent utility.
    Intermittent Stream: An intermittent stream has flowing water 
during certain times of the year, when groundwater provides water for 
stream flow. During dry periods, intermittent streams may not have 
flowing water. Runoff from rainfall is a supplemental source of water 
for stream flow.
    Loss of Waters of the US: Waters of the US that include the filled 
area and other waters that are permanently adversely affected by 
flooding, excavation, or drainage because of the regulated activity. 
Permanent adverse effects include permanent 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 US is the threshold measurement of the 
impact to existing waters for determining whether a project may qualify 
for an NWP. It is not the net threshold calculated after considering 
compensatory mitigation 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 US 
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 US.
    Non-tidal Wetland: A non-tidal wetland is a wetland (i.e., a water 
of the US) 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 US, 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.
    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.
    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.
    Riffle and Pool Complex: Riffle and pool complexes are special 
aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes 
sometimes characterize steep gradient sections of streams. Such stream 
sections are recognizable by their hydraulic characteristics. The rapid 
movement of water over a course substrate in riffles results in a rough 
flow, a turbulent surface, and high dissolved oxygen levels in the 
water. Pools are deeper areas associated with riffles. A slower stream 
velocity, a streaming flow, a smooth surface, and a finer substrate 
characterize pools.
    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 US (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

[[Page 42100]]

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 
US, despite the modifications to increase the rate of water flow.
    Tidal Wetland: A tidal wetland is a wetland (i.e., water of the US) 
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 Buffer: A vegetated upland or wetland area next to 
rivers, streams, lakes, or other open waters which separates the open 
water from developed areas, including agricultural land. Vegetated 
buffers provide a variety of aquatic habitat functions and values 
(e.g., aquatic habitat for fish and other aquatic organisms, moderation 
of water temperature changes, and detritus for aquatic food webs) and 
help improve or maintain local water quality. A vegetated buffer can be 
established by maintaining an existing vegetated area or planting 
native trees, shrubs, and herbaceous plants on land next to open-
waters. Mowed lawns are not considered vegetated buffers because they 
provide little or no aquatic habitat functions and values. The 
establishment and maintenance of vegetated buffers is a method of 
compensatory mitigation that can be used in conjunction with the 
restoration, creation, enhancement, or preservation of aquatic habitats 
to ensure that activities authorized by NWPs result in minimal adverse 
effects to the aquatic environment. (See General Condition 19.)
    Vegetated Shallows: Vegetated shallows are special aquatic sites 
under the 404(b)(1) Guidelines. They are areas that are permanently 
inundated and under normal circumstances have rooted aquatic 
vegetation, such as seagrasses in marine and estuarine systems and a 
variety of vascular rooted plants in freshwater systems.
    Waterbody: 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. 01-19841 Filed 8-8-01; 8:45 am]
BILLING CODE 3710-92-P