[Federal Register Volume 67, Number 10 (Tuesday, January 15, 2002)]
[Notices]
[Pages 2020-2095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-539]



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Part II





Department of Defense





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Department of the Army, Corps of Engineers



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Issuance of Nationwide Permits; Notice

  Federal Register / Vol. 67, No. 10 / Tuesday, January 15, 2002 / 
Notices  

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Issuance of Nationwide Permits; Notice

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final notice.

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SUMMARY: The Corps of Engineers is reissuing all the existing 
Nationwide Permits (NWPs), General Conditions, and definitions with 
some modifications, and one new General Condition. These final NWPs 
will be effective on March 18, 2002. All NWPs except NWPs 7, 12, 14, 
27, 31, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing 
NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44 expire on March 18, 
2002. In order to reduce the confusion regarding the expiration of the 
NWPs and the administrative burden of reissuing NWPs at different 
times, we are issuing all NWPs on the same date so that they expire on 
the same date. Thus, all issued, reissued and modified NWPs, and 
General Conditions contained within this notice will become effective 
on March 18, 2002 and expire on March 19, 2007.

DATES: All NWPs and general conditions will become effective on March 
18, 2002. All NWPs have an expiration date of March 19, 2007.

ADDRESSES: HQUSACE, ATTN: CECW-OR, 441 ``G'' Street, NW., Washington, 
DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson, at (703) 428-7570, 
Mr. Rich White, at (202) 761-4599, or Mr. Kirk Stark, at (202) 761-4664 
or access the U.S. Army Corps of Engineers Regulatory Home Page at: 
http//:www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

    In the August 9, 2001 (66 FR 42070), Federal Register the Corps 
proposed to reissue all the existing Nationwide Permits (NWPs), General 
Conditions, and definitions with some modifications, and one new 
General Condition. We proposed to modify NWPs 14, 21, 27, 31, 37, 39, 
40, 42, and 43, General Conditions 4, 9, 13, 19, 21, 26, and add a new 
General Condition 27.
    The proposal intended to simplify and clarify permits that have no 
more than minimal effect on the environment, add additional 
requirements that will enhance protection of the aquatic environment, 
increase flexibility for the Corps field staff to target resources 
where most needed to protect the aquatic environment, reduce 
unnecessary burdens on the regulated public, and retain the key 
protections for the aquatic environment that were added last year (e.g. 
acreage limit of \1/2\ acre of impact per project, the requirement for 
the Corps to be notified of any impacts over \1/10\ acre, and important 
limits on impacts within mapped floodplains).
    As a result of the comments received in response to the August 9, 
2001, Federal Register notices and the public hearing on September 26, 
2001, the Corps has made a number of changes to the proposed NWPs and 
General Conditions that are designed to further clarify the permits and 
strengthen environmental protection. These changes are discussed in the 
preamble.
    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) would have expired five years from their effective date 
of June 7, 2000.
    Today the Corps of Engineers is reissuing all the existing 
Nationwide Permits (NWPs), General Conditions, and definitions with 
some modifications, and one new General Condition. These final NWPs 
will be effective on March 18, 2002. All NWPs except NWPs 7, 12, 14, 
27, 31, 40, 41, 42, 43, and 44 expire on February 11, 2002. Existing 
NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44 expire on March 18, 
2002. In order to reduce the confusion regarding the expiration of the 
NWPs and the administrative burden of reissuing NWPs at different 
times, we are issuing all NWPs on the same date so that they expire on 
the same date. Thus, all issued, reissued and modified NWPs, and 
General Conditions contained within this notice will become effective 
on March 18, 2002 and expire on March 19, 2007.

Grandfather Provision for Expiring NWPs at 33 CFR 330.6

    Activities authorized by the current NWPs issued on December 13, 
1996, (except NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44), that 
have commenced or are under contract to commence by February 11, 2002, 
will have until February 11, 2003 to complete the activity. Activities 
authorized by NWPs 7, 12, 14, 27, 31, 40, 41, 42, 43, and 44, that were 
issued on March 9, 2000, that are commenced or under contract to 
commence by March 18, 2002, will have until March 18, 2003 to complete 
the activity.

Clean Water Act Section 401 Water Quality Certification (WQC) and 
Coastal Zone Management Act (CZMA) Consistency Agreement

    In the August 9, 2001, Federal Register notice and concurrent with 
letters from Corps Districts to the appropriate state agencies, the 
Corps requested 401 certification and CZM consistency agreement. This 
began the Clean Water Act section 401 water quality certification (WQC) 
and Coastal Zone Management Act (CZMA) consistency agreement processes. 
Today's Federal Register notice provides a 60-day period for the states 
to complete the Clean Water Act section 401 water quality certification 
(WQC) and Coastal Zone Management Act (CZMA) consistency agreement 
processes. On August 9, 2001, we proposed to increase the normal 60-day 
period to complete the WQC and CZMA processes to 90 days. However, due 
to a majority of the NWPs expiring February 11, 2001, and schedule 
delays, we have had to keep the WQC and CZMA processes to 60 days. Also 
during this 60-day period, Corps divisions and districts will finalize 
their regional conditions for the new and modified NWPs.

Discussion of Public Comments

I. Overview

    In response to the August 9, 2001, Federal Register notice, we 
received more than 2,100 comments. We reviewed and fully considered all 
comments received in response to that notice.
    Many commenters expressed opposition to the proposed NWPs, but a 
few commenters indicated support for these NWPs. Most of the comments 
in opposition of the NWPs were two versions of identical post cards and 
a form letter that objected to proposed changes to general conditions 
19 and 26, opposed the removal of linear limits for NWPs 21, 39, 40, 
42, 43, and 44, and requested the withdrawal of NWP 21. Other 
commenters said that the NWPs were too difficult for the public to use, 
the NWPs exceeded the Corps jurisdiction, and the acreage and linear 
limits were too low for the NWPs to be useful. One commenter indicated 
that few changes proposed in the August 9, 2001, Federal Register 
notice will result in decreased workload for the Corps.

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    After considering the comments received in response to the August 
9, 2001, Federal Register notice, we made several changes to the NWPs, 
general conditions, and definitions. These changes are discussed in 
detail in the preamble discussion for each NWP, general condition, and 
definition. We do not agree that the NWPs are too difficult for the 
regulated public to use. We have retained the \1/2\ acre limit for many 
of the NWPs, to ensure that those NWPs authorize only activities with 
minimal adverse effects on the aquatic environment, individually and 
cumulatively. We have not adopted the proposed waiver process for the 
300 linear foot limit for perennial streams in NWPs 39, 40, 42, and 43. 
We did adopt the waiver for intermittent streams in NWPs 39, 40, 42, 
and 43. NWPs 21 and 44 do not currently have a linear foot limitation, 
so the waiver does not apply. We believe that the changes to the NWPs 
will allow the Corps to more effectively authorize activities with 
minimal adverse effects on the aquatic environment.

II. General Comments

    Many commenters objected to the NWP proposal, stating that it will 
place citizens at risk from flooding, promote wetland and stream 
destruction, degrade water quality, and result in the loss of critical 
habitat. Another commenter indicated that the NWPs need to be 
strengthened to ensure that marine, riparian, and riverine habitats, 
and the fish species that depend on those habitats, are adequately 
protected under the NWP process. One commenter said that the NWPs 
should authorize only those activities that have minimal impacts on 
water quality. This commenter said that the NWPs will lead to 
piecemealing and result in cumulative impacts detrimental to particular 
waterbodies. A commenter objected to the NWPs, stating that the NWPs 
authorize activities that expand existing developments. Another 
commenter said that the proposed NWPs will only benefit the development 
community and the Corps, while exposing the public and environment to 
unnecessary harm. One commenter stated that the Corps proposal to 
modify the NWPs would significantly weaken wetlands protection and 
severely hamper the ability of State fish and wildlife agencies to 
conserve wetlands and watersheds.
    The terms and conditions of the NWPs, including the general 
conditions, ensure that the activities authorized by NWPs result in no 
more than minimal adverse effects on the aquatic environment, including 
wetlands and streams. General Condition 26, Fills Within 100-year 
Floodplains, addresses the use of certain NWPs to authorize activities 
in 100-year floodplains and ensures that such activities comply with 
FEMA-approved State and local floodplain management requirements. 
General Condition 11, Endangered Species, ensures that activities 
authorized by NWPs comply with the Endangered Species Act. Water 
quality certification is required for NWP activities authorized under 
section 404 of the Clean Water Act. In addition, district engineers can 
require water quality management measures to ensure that NWP activities 
result in no more than minimal adverse effects on water quality. NWPs 
authorize single and complete projects, and do not result in 
piecemealing of projects. District engineers consider cumulative 
adverse effects when reviewing requests for NWP verifications, 
including activities that result in the expansion of existing 
developments. The NWPs do not impede the efforts of State fish and 
wildlife agencies to conserve wetlands and watersheds.
    Several commenters asserted that the NWP program contradicts the 
clear intent of Congress to establish a streamlined general permit 
process for activities with minimal adverse effects on the aquatic 
environment. A couple of commenters said that the NWPs regulate 
activities that are exempt from the Clean Water Act and its 
implementing regulations. These commenters requested more consistency 
between the NWPs and these statutory exemptions. One commenter stated 
that drainage districts are generally exempt from permit requirements, 
including pre-construction notification (PCN) requirements. This 
commenter said that the NWP conditions and notification requirements 
are too costly and could impair the ability of drainage districts to 
meet their obligations to protect citizens from flooding, and that the 
drainage ditches should be exempt from these regulations. One commenter 
stated that the Corps should recognize the important differences 
between wetland landscapes and the protection of non-aquatic areas that 
are dominated by ephemeral drainage systems in the desert regions of 
the southwest United States.
    The NWPs provide an expedited review process for activities in 
waters of the United States that result in no more than minimal 
individual and cumulative adverse effects on the aquatic environment. 
Although the NWP program has undergone substantial changes in recent 
years, we believe those changes were necessary to ensure compliance 
with section 404(e) of the Clean Water Act. Section 404(e) authorizes 
the Corps to issue general permits, including NWPs. General permits 
authorize activities that are similar in nature and result in no more 
than minimal adverse effects on the aquatic environment, individually 
and cumulatively. The lower acreage limits and more restrictive terms 
and conditions of the NWPs are necessary to comply with section 404(e).
    The NWPs do not regulate activities that are exempt from the permit 
requirements of the Clean Water Act. Certain activities that are 
conducted by drainage districts, such as the maintenance of drainage 
ditches, may be eligible for section 404(f) exemptions and therefore 
may not require authorization from the Corps. The construction of new 
drainage ditches may require a Department of the Army (DA) permit, if 
the proposed work involves discharges of dredged or fill material into 
waters of the United States and/or work in Section 10 waters. The NWPs 
do not change the section 404(f) exemptions. The NWPs authorize certain 
activities that require a DA permit pursuant to section 10 of the 
Rivers and Harbors Act and/or section 404 of the Clean Water Act. Some 
NWPs, such as NWPs 3 and 14, contain references to the section 404(f) 
exemptions. Project proponents can contact district engineers to 
determine whether specific activities qualify for the section 404(f) 
exemptions.
    The NWPs allow district engineers flexibility when reviewing 
activities that involve discharges of dredged or fill material into 
ephemeral streams. Division engineers can regionally condition the NWPs 
to restrict or prohibit specific activities that result in the loss of 
ephemeral stream beds, or require project proponents to notify district 
engineers prior to construction for case-by-case review. The waiver 
process for the 300 linear foot limit for NWPs 39, 40, 42, and 43 
allows district engineers to issue NWP verifications for activities 
that result in the loss of greater than 300 linear feet of intermittent 
(but not perennial) stream bed and have no more than minimal adverse 
effects on the aquatic environment.
    Several commenters indicated that the proposed changes to the NWP 
program fails to address the significant problems with the new and 
modified NWPs that were published in the March 9, 2000, Federal 
Register (65 FR 12818). Two commenters stated that the restrictions in 
those NWPs have resulted in large burdens on the transportation 
construction industry and planning

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officials. One commenter said that the elimination of the NWP 26 has 
resulted in large increases in delays associated with obtaining 
individual permits for transportation activities that were authorized 
by NWP 26. One commenter stated that these NWPs will result in longer 
delays and greater expenses for simple projects. This commenter said 
that NWP 26 should be reinstated to replace these cumbersome NWPs. One 
commenter asserted that the NWPs result in substantial burdens on the 
regulated public. Two commenters recommended that the Corps improve the 
NWP program by increasing acreage limits, increasing PCN thresholds, 
and reducing PCN information requirements.
    The replacement of NWP 26 with activity-specific NWPs was necessary 
to ensure compliance with section 404(e) of the Clean Water Act. The 
terms and conditions of the NWPs published in the March 9, 2000, 
Federal Register notice were intended to ensure that the NWPs authorize 
only those activities that result in no more than minimal adverse 
effects on the aquatic environment. We recognize that certain 
activities that were previously authorized by NWPs now require 
individual permits, and that it takes more time to authorize those 
activities, including some transportation projects. We do not agree 
that the acreage limits and PCN thresholds of the NWPs should be 
increased, because the lower limits and thresholds ensure that the NWPs 
authorize only activities with no more than minimal adverse 
environmental effects.
    One commenter stated that the Corps data shows that the number of 
acres of wetlands created under the mitigation requirements of the NWP 
program exceeds the number of acres permitted under the program. This 
commenter asked why the Corps has failed to do more to carry out the 
policies established in section 101(f) of the Clean Water Act to 
minimize paperwork, seek the best uses of manpower and funds, and to 
prevent needless delays at all levels of government.
    The NWP program complies with the requirements of section 101(f) of 
the Clean Water Act, by providing an effective means of authorizing 
activities with no more than minimal individual and cumulative adverse 
effects on the aquatic environment.

Implementation

    One commenter objected to the NWPs, stating that these permits 
remove the public, resource agencies, and the Corps from the permit 
review process. Another commenter said that NWP activities should be 
coordinated with natural resource agencies and the public. One 
commenter said that it is not appropriate for the Corps to rely on 
discretionary authority, regional conditions, and the PCN process to 
reduce the adverse impacts to the aquatic environment to a minimal 
level. This commenter stated that regional conditions are not 
consistently implemented across the country or to the degree necessary 
to ensure minimal effects.
    The NWPs authorize minor activities that are usually not 
controversial and would result in little or no public or resource 
agency comment if they were reviewed through the standard permit 
process. Conducting full public interest reviews for NWP activities 
would substantially increase the Corps workload without substantial 
added value for the aquatic environment. NWP activities that require 
notification to the district engineer and result in the loss of greater 
than \1/2\ acre of waters of the United States are coordinated with the 
appropriate Federal and state agencies (see paragraph (e) of General 
Condition 13). Discretionary authority, regional conditions, and the 
PCN process are essential elements of the NWP program, to ensure that 
NWP activities result in no more than minimal adverse effects on the 
aquatic environment. In response to a PCN, a district engineer can add 
special conditions to the NWP authorization to ensure that the activity 
will result in no more than minimal adverse effects on the aquatic 
environment. If the proposed work will result in more than minimal 
adverse effects on the aquatic environment, district engineers can 
exercise discretionary authority to require an individual permit. 
Regional conditions are not consistent throughout the country, because 
they address differences in aquatic resource functions and values in 
watersheds or other types of geographic regions.
    One commenter stated that in order to ensure that the NWPs 
authorize only activities with minimal adverse effects on the aquatic 
environment, the NWPs should include a new general condition. This 
general condition would require public notices in all cases where 
notification is required and the submission of surveys of terrestrial 
and aquatic species and cultural and historic resources that may be 
affected by the NWP activity.
    We do not agree that the general condition proposed in the previous 
paragraph is practical or necessary. General Condition 11, Endangered 
Species, addresses compliance with the Endangered Species Act. General 
Condition 12, Historic Properties, addresses compliance with the 
requirements of the National Historic Preservation Act. Project 
proponents may be required to provide surveys of endangered species or 
cultural resources to ensure compliance with these general conditions.
    One commenter asserted that there is an unsubstantiated presumption 
that compensatory mitigation in any form effectively offsets the 
individual or cumulative adverse effects of NWP activities. One 
commenter indicated that, due to the small NWP acreage limits, the 
Corps has lost the ability to direct mitigation toward areas that would 
provide the most benefits on a watershed basis. One commenter said that 
mitigation should not be used to ensure that NWP activities result in 
minimal adverse effects on the aquatic environment. This commenter 
suggested that avoidance and practicable alternatives should be 
emphasized.
    Compensatory mitigation is an important mechanism to ensure that 
the activities authorized by NWPs result in no more than minimal 
adverse effects on the aquatic environment, individually and 
cumulatively. Compensatory mitigation can be provided through 
individual aquatic resource restoration, creation, enhancement, or in 
exceptional circumstances, preservation projects, as well as mitigation 
banks, in lieu fee programs, and other types of consolidated mitigation 
efforts. General Condition 19 discusses mitigation for NWP activities, 
including the requirement for project proponents to avoid and minimize 
adverse effects on waters of the United States to the maximum extent 
practicable on the project site.
    One commenter objected to the NWPs, stating that conditions imposed 
on the NWPs are rarely monitored for compliance. This commenter 
suggested that the Corps commit to an aggressive monitoring and 
enforcement program for activities authorized by NWPs. Another 
commenter said that the lack of compliance inspections has resulted in 
numerous instances where activities authorized by NWPs have resulted, 
through implementation failures and intentional violations, in 
substantial adverse effects. This commenter suggested that each NWP 
should be subject to a statistically sufficient number of compliance 
inspections to determine whether compliance is being achieved, and 
whether the NWP activities are resulting in more than minimal 
individual or cumulative adverse effects. One commenter said that 
enforcement efforts should not be

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weakened. One commenter stated that the Corps needs to monitor and 
enforce the national and regional conditions of the NWPs.
    We are committed to strong enforcement and compliance efforts for 
activities authorized by DA permits, including NWPs, but the amount of 
time dedicated to enforcement and compliance is dependent upon the 
value of the impacted resource and the available amount of district 
resources. The Corps is increasing its compliance efforts to further 
improve compliance. In consultation with other Federal agencies, the 
Corps is currently finalizing guidance that will address the need for 
improved compliance.
    One commenter asserted that Corps personnel rarely verify the 
information provided in NWP verification requests, and speculated that 
project proponents may under-report the amount of impacts to waters of 
the United States to qualify for NWP authorization. This commenter 
suggested that the Corps commit to independent verification of the 
information submitted in NWP verification requests or verify the 
information for randomly selected subsets of verification requests. One 
commenter suggested that Corps produce educational brochures and web 
pages that describe the basic information that must be submitted in 
order to ensure that a NWP request is considered complete.
    District personnel review requests for NWP verifications to 
determine if the information provided by the project proponents is 
accurate. The level of review is dependent on the amount of impacts 
proposed by the applicant and the resources available to Corps 
personnel. Site visits cannot be conducted for all NWP verification 
requests. District personnel utilize their knowledge of local 
conditions when reviewing NWP verification requests to assess whether 
the information provided in the NWP verification request is accurate. 
The Corps Headquarters homepage, see address above, and Corps district 
homepages contain information on the NWPs, including the NWPs, general 
conditions, regional conditions, state 401 and CZM conditions, and 
decision documents. The text of General Condition 13, Notification, 
lists the information necessary for a complete PCN. Several districts 
also provide brochures to assist project proponents who are preparing 
permit applications or NWP verification requests. District home pages 
on the Internet also have other information that is useful for permit 
applicants.

Acreage Limits

    Three commenters suggested that higher acreage limits should be 
adopted for impacts to non-wetland waters and that district engineers 
should have the authority to issue project-specific waivers to NWP 
acreage limits. One commenter said that there should be higher acreage 
limits for master planned communities or similar planned development 
projects. One commenter said that a 500 linear foot limit for stream 
impacts should be added to the NWPs.
    We do not agree that higher acreage limits should be implemented 
for NWP activities that result in the loss of non-wetland waters, or 
for master planned development projects. Open waters, such as streams, 
ponds, lakes, estuaries, and the oceans, are important components of 
the overall aquatic environment and provide valuable functions and 
environmental benefits. We also do not agree that a waiver process 
should be implemented for the acreage limits of NWPs. We do not believe 
it is necessary to impose a 500 linear foot limit on all losses of 
stream bed authorized by NWPs. The 300 linear foot limit for NWPs 39, 
40, 42, and 43, and the waiver process for intermittent streams will 
ensure that those NWPs authorize no more than minimal impacts to stream 
beds. And such a limit is not necessary for the other NWPs. In 
addition, these acreage limit suggestions would require notice and 
comment, before they could be adopted.
    One commenter stated that the standard permit process does not 
necessarily result in additional avoidance, minimization, or 
compensatory mitigation, but causes substantial project delays, higher 
costs, and increased risks to public safety. Two commenters suggested 
that the Corps implement an NWP program that imposes the acreage limits 
of the 1996 NWPs (i.e., 3 acres) on the activity-specific NWPs 
published in the March 9, 2000, Federal Register. A number of 
commenters recommended reissuing NWP 26. One commenter said that the 
NWPs are too restrictive and they add unnecessary administrative 
burdens while providing questionable environmental benefits. Two 
commenters said that there is nothing in the administrative record that 
indicates the need for the \1/2\ acre limit. Three commenters stated 
that the acreage limits and PCN thresholds are arbitrary and capricious 
and unsupported by sound science.
    The standard permit process can result in additional avoidance and 
minimization because of the Section 404(b)(1) guidelines analysis 
required for those standard permit activities that involve discharges 
of dredged or fill material into waters of the United States. The terms 
and conditions of the NWPs, including the \1/2\ acre limit for many of 
the NWPs, are necessary to ensure that the NWPs authorize only those 
activities with no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. We do not agree that NWP 26 
should be reinstated, because the replacement of NWP 26 was necessary 
to ensure compliance with section 404(e) of the Clean Water Act.
    One commenter stated that the \1/2\ acre limit for certain NWPs has 
dramatically expanded the scope of the regulatory program, leading to 
increased costs and delays with few demonstrated environmental 
benefits. One commenter asserted that the acreage limits of the NWPs do 
not decrease losses of wetlands because projects are designed to impact 
the maximum amount to avoid the individual permit process. Several 
commenters said that the NWP program is no longer useful to industry 
and other regulated entities because the strict terms and conditions of 
the NWPs provide no incentives for project proponents to design 
projects to qualify for NWP authorization. This commenter said that 
there should be more reliance on regional conditions to ensure that 
there is no more than minimal adverse environmental effects, instead of 
unnecessarily restrictive national conditions. A number of commenters 
indicated that impacts on the environment will increase since few 
projects qualify for NWP authorization.
    The \1/2\ acre limit for certain NWPs has not increased the scope 
of the regulatory program, although it may result in more activities 
requiring individual permits. The terms and conditions of the NWPs are 
necessary to ensure that the NWPs authorize only those activities that 
result in no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. Division engineers can add 
regional conditions to the NWPs to address important aquatic resource 
functions and values in particular geographic areas, but the terms and 
national general conditions of the NWPs are necessary to address 
national concerns for the aquatic environment. The NWP program 
encourages avoidance and minimization of impacts to wetlands, and most 
project proponents do not request NWP authorization to fill the maximum 
amount of wetlands under the NWP acreage limits. General Condition 29 
requires project proponents to avoid and minimize impacts to waters of 
the

[[Page 2024]]

United States to the maximum extent practicable on the project site. We 
believe that many project proponents will continue to design their 
projects to qualify for authorization under the NWPs, including 
avoiding and minimizing impacts to aquatic resources on the project 
site.

Pre-construction Notification Process

    One commenter requested that the Corps reinstate the \1/3\ acre PCN 
threshold, or demonstrate that a lower notification threshold is 
necessary to ensure that adverse effects on the aquatic environment are 
minimal.
    The \1/10\ acre PCN threshold for several of the NWPs is necessary 
so that district engineers can review those activities to ensure that 
they result in no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. Therefore, we have retained 
the \1/10\ acre PCN threshold for certain NWPs. Additionally, the Corps 
does not believe the PCN requirements impose a significant burden on 
most project proponents.
    A few commenters stated that NWPs are complex and the PCN process 
requires too much time. One commenter said that the time limit for 
determining if a PCN is complete is longer than the 15 day period for 
determining if a standard permit application is complete. This 
commenter recommended that the Corps delete the 30 day completeness 
review for PCNs. This commenter said that increasing the PCN review 
period to 45 days does not comply with the goal for an expedited permit 
process, and makes the NWP process resemble the standard permit 
process. One commenter said that the PCN review process provides 
disincentives for project proponents to design their projects to 
qualify for NWP authorization.
    The 45 day PCN review period is necessary to allow district 
engineers to adequately review those activities that require PCNs. 
However, most NWP verifications do not take the full 45 days. The 
average time to verify a NWP activity is 19 days. Although the 30 day 
completeness review period for PCNs is less than the 15 day 
completeness review period for standard permit applications, the PCN 
process allows more effective authorization of activities with no more 
than minimal adverse effects on the aquatic environment. An individual 
activity authorized by an NWP does not require a public notice or the 
same level of review required for a standard permit activity. Project 
proponents requesting NWP verifications generally receive their 
authorizations more quickly than they would receive standard permits. 
The 45 day PCN review period includes the 30 day completeness review, 
and we do not agree that the 30 day completeness review period should 
be deleted. The completeness review period makes the PCN process more 
efficient by requiring district engineers to request additional 
information early in the PCN process. If a district engineer receives a 
complete PCN, then the decision to verify that the activity is 
authorized by NWP or exercise discretionary authority must be made 
within 45 days. We do not agree that the PCN process discourages 
project proponents from designing their projects to qualify for NWP 
authorization, because the NWP process is faster than the standard 
permit process.

Compliance With Section 404(e) of the Clean Water Act and the 
National Environmental Policy Act

    Several commenters said that the NWPs do not comply with section 
404(e) of the Clean Water Act because they authorize activities with 
more than minimal adverse effects on the aquatic environment. One 
commenter asserted that the NWPs should be limited to specific uses. 
Numerous commenters stated that the NWPs do not comply with the 
``similar in nature'' requirement of section 404(e) of the Clean Water 
Act.
    The terms and conditions of the NWPs, including the acreage limits 
and PCN review process, ensure that the NWPs authorize only those 
activities with no more than minimal individual and cumulative adverse 
effects on the aquatic environment. The NWPs undergo a thorough review 
process every five years to ensure compliance with the requirements of 
section 404(e) of the Clean Water Act. Each of the NWPs complies with 
the requirement for general permits to authorize activities that are 
``similar in nature.''
    One commenter indicated that the database may not be adequate 
enough to warrant the proposed changes to the NWPs and said that the 
Corps cannot assure the public that the proposed changes will not 
result in greater impacts to waters of the United States. Another 
commenter said that the database to justify the proposed changes is 
small compared to the overall age of the permit program. A few 
commenters suggested that the regulations should be modified to require 
each Corps district office to furnish quarterly reports to each state 
agency in the district that would summarize the number, type, and 
impacts of activities in waters of the United States for all NWP 
verifications issued. Several commenters said that the Corps needs to 
improve its database for the regulatory program.
    The proposed changes to the NWPs published in the August 9, 2001, 
Federal Register will not result in more than minimal adverse effects 
on the aquatic environment. The proposed modifications are intended to 
improve the efficiency of the NWP program, and enhance protection of 
important aquatic resources. We do not agree that it is necessary to 
change the Corps regulations to require districts to provide states 
with quarterly reports concerning the impacts authorized by all NWP 
verifications. Corps headquarters is developing a new data collection 
and reporting system to replace the current system. The new system will 
improve data collection for the regulatory program, and will help the 
Corps compile summary data and evaluate trends. The new data collection 
system will improve the reliability of regulatory program data.
    One commenter said that the Corps has not adequately assessed 
cumulative impacts and that virtually no mitigation has been required 
because of the smaller individual impacts of these NWPs. Another 
commenter objected to the NWPs, stating that district engineers cannot 
determine the magnitude of individual and cumulative environmental 
impacts. One commenter said that the NWPs should not be reissued 
because cumulative impacts have not been addressed at a regional or 
national level.
    We maintain our position that assessing cumulative impacts across 
the nation is not possible or appropriate. We believe that no 
assessment of individual and cumulative impacts can be made a national 
level, because the functions and values of aquatic resources vary 
considerably across the country. Assessment of cumulative impacts is 
more appropriately conducted by Corps districts on a watershed basis, 
because they have better understanding of local conditions and 
processes. However, the NWP program is designed programmatically to 
ensure no more than minimal adverse effects, individually and 
cumulatively. This is accomplished through acreage limits, the PCN 
process, regional conditioning, and the exercise of discretionary 
authority to require individual permits. Each district generally tracks 
losses of waters of the United States authorized by Department of the 
Army permits, including verified NWPs, as well as required compensatory 
mitigation achieved through aquatic resource restoration, creation, and 
enhancement. The regional conditioning process, including

[[Page 2025]]

the preparation of supplemental Environmental Assessments by division 
engineers, also helps ensure that the NWPs authorize activities with no 
more than minimal adverse effects on the aquatic environment, 
individually and cumulatively.
    One commenter stated that National Environmental Policy Act (NEPA) 
requires the Corps to evaluate the environmental impacts of every major 
Federal action, such as the issuance of section 404 permits, that 
significantly affects the quality of the human environment. Several 
commenters said that Environmental Impact Statements (EISs) are 
required for the NWPs, at both the national and district levels. One of 
these commenters asserted that these EISs should examine all reasonable 
alternatives to the NWPs, general conditions, and regional conditions. 
One commenter said that EISs should be completed for NWPs 13, 29, 39, 
40, 42, and 44. Two commenters said that regional conditions for the 
NWPs should not be finalized until an EIS on the NWPs is completed. One 
commenter expressed disagreement with the Finding of No Significant 
Impact (FONSI) for the NWP program that was issued on June 23, 1998, 
which stated that the Corps is not required to do an EIS for the NWPs. 
One commenter said that an EIS is required to demonstrate compliance 
with section 404(e) of the Clean Water Act.
    We maintain our position that the NWPs do not require an EIS, even 
though we are in the process of preparing a voluntary programmatic EIS 
for the NWP program. Since the NWPs authorize only those activities 
that have no more than minimal adverse effects on the aquatic 
environment, the NWP program does not reach the significance threshold 
required for the preparation of an EIS. The NWPs are subjected to a 
reissuance process every five years. This reissuance process involves a 
public notice and comment period, which provides the Corps with 
information to ensure that the NWPs continue to authorize only those 
activities with no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. Again, the NWP program does 
not reach the level of significant impacts that requires the 
preparation of an EIS. To comply with NEPA, Corps headquarters issues 
an Environmental Assessment (EA) for each NWP when it is issued, 
reissued, or modified. These EAs consider the environmental effects of 
each NWP from a national perspective. Each Corps division and district 
engineer will supplement these EAs to evaluate regional environmental 
effects of the NWPs. For the reasons above, the NWP program and the 
NWPs do not reach the level of significant impacts that requires the 
preparation of an EIS, and in fact are far below that level.
    We do not agree that regional conditions for the NWPs should not be 
finalized until an EIS on the NWPs is completed. We also believe that 
the FONSI for the NWP program that was issued on June 23, 1998, is 
still valid despite the changes to the NWPs that have occurred since 
the FONSI was issued. There have been no substantial changes to the NWP 
regulations at 33 CFR part 330 or to the implementation of the NWP 
program since the FONSI was issued. The FONSI discussed, in general 
terms, the implementation of the NWP program, including the procedures 
used by the Corps to ensure that the NWPs authorize only those 
activities with no more than minimal individual and cumulative adverse 
effects on the aquatic environment. The Corps is not required to do an 
EIS to demonstrate compliance with section 404(e) of the Clean Water 
Act. The decision documents issued for each NWP address compliance with 
the section 404(b)(1) guidelines, which require an analysis for the 
issuance of general permits (see 40 CFR 230.7). Finally, although not 
required to prepare an EIS, the Corps is preparing a voluntary 
Programmatic EIS to assess the NWP Program to see if there are changes 
to the NWP program that would further ensure that there are no more 
than minimal adverse effects to the aquatic environment, individually 
and cumulatively. The Programmatic EIS is discussed below.
    One commenter said that the Corps can not limit its analyses to 
only those effects of the NWPs that occur in jurisdictional waters at 
the location of the permitted activity. Another commenter said that an 
EIS is required each time an NWP is used to authorize a private 
development project.
    For the purposes of NEPA and the Corps regulatory program, the 
scope of analysis is limited to address the impacts of the specific 
activity requiring a DA permit and those portions of the entire project 
over which the district engineer has sufficient control and 
responsibility to warrant Federal review (see 33 CFR part 325, Appendix 
B, paragraph 7(b)). We do not agree that an EIS is warranted whenever 
an NWP is used to authorize a private development project, because the 
NWPs authorize only those activities that occur within the Clean Water 
Act section 404 limited scope of review and that have no more than 
minimal adverse effects on the aquatic environment.
    One commenter stated that the EAs for the NWPs must contain current 
data. Two commenters asserted that the decision documents, including 
the EAs and Statements of Finding, for the NWPs should be subjected to 
an agency coordination and public comment period before they are 
finalized. Another commenter said that the EAs fail to consider 
alternatives to the proposed NWPs. One commenter stated that the EAs 
prepared for the NWPs do not adequately describe or assess the 
significant cumulative effects the NWP program has on the environment. 
One commenter recommended that the Corps issue new EAs for each 
nationwide permit to demonstrate compliance with NEPA. One commenter 
objected to the preliminary EAs, stating that those documents do not 
demonstrate an ecological rationale for the proposed acreage limits of 
the NWPs. One commenter stated that the EAs do not adequately assess 
potentially significant environmental impacts of the NWPs.
    We believe it was unnecessary to make the revised EAs for the NWPs 
proposed in the August 9, 2001, Federal Register available for agency 
review and public comment. The EAs for the new and modified NWPs issued 
today discuss, in general terms, the acreage limits for these NWPs, the 
types of waters subject to the new and modified NWPs, and the functions 
of those waters. The EAs also address projected impacts to waters of 
the United States that will occur through the use of these NWPs. These 
projected impacts are based on recent data. The EAs also contain 
discussions of alternatives analyses. Since aquatic resource functions 
and values vary considerably across the country, we cannot include 
detailed ecological analyses to support the acreage limits for these 
NWPs. In addition, due to NEPA requirements concerning the length of 
environmental documentation, the EAs for the new and modified NWPs must 
be limited to general discussions of potential impacts. Division 
engineers will be issuing supplemental EAs that will address regional 
issues at the district level. The ``Forty Most Frequently Asked 
Questions'' concerning NEPA developed by the Council on Environmental 
Quality (i.e., Question 36) and the Corps regulations at 33 CFR part 
325, Appendix B, discuss the recommended length of EAs. Finally, the 
changes in the new NWPs, relative to the existing NWPs, are minimal and 
generally designed to simplify the permits and increase protection of 
the aquatic environment. EAs for the existing

[[Page 2026]]

permits have been publicly available since these permits were issued.
    A few commenters said that the Corps must finalize the Programmatic 
Environmental Impact Statement (PEIS) for the NWPs before finalizing 
the NWP proposal published in the August 9, 2001, Federal Register. One 
commenter stated that the current NWPs should be extended until the 
PEIS is completed. One commenter stated that the draft PEIS for the NWP 
program does not address the specific effects of the NWPs on listed 
species, critical habitat or any other natural resources. Another 
commenter said that the draft PEIS lacks available data to assess the 
impacts of the NWP program because the Corps database is faulty. This 
commenter asserted that there should be no permitting until the Corps 
can adequately assess the success or failure of the regulatory program. 
One commenter said that the NWP PEIS does not provide sound scientific 
data that demonstrates that the NWPs have only minimal impacts on the 
environment.
    In March 1999 the Corps began preparation of a voluntary PEIS to 
evaluate procedures and processes for the NWP program. The PEIS will 
not address the impacts of any specific NWPs. The PEIS is not a legally 
required EIS. The Council of Environmental Quality's regulations at 50 
CFR 1506.1(c) do not prohibit the Corps from issuing the NWPs prior to 
completing the voluntary PEIS. The issuance of the NWPs will not 
preclude the ability of the Corps to modify the NWP program or modify 
individual NWPs in accordance with any need for changes identified in 
the PEIS. The Corps is in compliance with NEPA because a FONSI for the 
NWP program was issued on June 23, 1998, and the Corps issues decision 
documents, including EAs, for each NWP when the NWP is issued, 
reissued, or modified. Specific comments concerning the PEIS will be 
addressed through the PEIS process.

Jurisdictional Issues

    In response to the August 9, 2001, Federal Register notice, we 
received numerous comments concerning the scope of the Corps regulatory 
authority. These comments addressed issues such as excavation 
activities in waters of the United States, isolated waters, and 
ephemeral streams as waters of the United States.
    One commenter stated that the Corps should develop regulations that 
accurately reflect the regulatory exemptions for excavation because all 
maintenance activities associated with any existing structures or fill 
are exempt from Section 404 permit requirements. One commenter stated 
that the definition of ``loss of waters of the United States'' in the 
NWPs should be clarified to exclude excavation. As an example, this 
commenter said that if an activity involves non-jurisdictional 
excavation and temporary stockpiling of excavated material, those 
activities should not be included in the measurement of ``loss of 
waters of the United States''.
    In the January 17, 2001, issue of the Federal Register (66 FR 
4550), we promulgated a final rule that revised the Clean Water Act 
regulatory definition of the term ``discharge of dredged material'' to 
address recent Court decisions. It is important to note that not all 
excavation activities in waters of the United States result only in 
incidental fallback into waters of the United States. Excavation 
activities that result in the redeposit of dredged material into waters 
of the United States, other than incidental fallback, require a Section 
404 permit. Excavated material that is temporarily stockpiled in waters 
of the United States before it is removed to a permanent deposit area 
requires a Section 404 permit. We have retained the excavation language 
in the new and modified NWPs and the definition of ``loss of waters of 
the United States'' because some of these activities may be authorized 
by NWPs. All excavation activities in navigable waters of the United 
States require Section 10 permits, even if those excavation activities 
result only in incidental fallback into Section 10 waters. NWPs issued 
under Section 10 of the Rivers and Harbors Act may authorize excavation 
activities in navigable waters of the United States.
    Two commenters indicated that the NWPs should be modified to ensure 
compliance with the recent Solid Waste Agency of Northern Cook County 
v. United States Army Corps of Engineers et al. decision (U.S. Supreme 
Court No. 99-1178).
    The Solid Waste Agency of Northern Cook County v. United States 
Army Corps of Engineers et al. decision related to the scope of CWA 
jurisdiction over non-navigable isolated intrastate waters. The NWPs do 
not establish jurisdiction that does not otherwise exist. They only 
authorize activities that require a permit. If an activity does not 
require a permit, the NWPs do not create a requirement for a permit. If 
an activity does require a permit and complies with the terms and 
conditions of an NWP, that activity may be authorized by the NWP.
    A couple of commenters suggested that the Corps needs to improve 
its definition of ordinary high water mark (OHWM) because the current 
definition, which is based on physical evidence, does not provide any 
criteria regarding the frequency of flow necessary to establish an 
OHWM. These commenters stated that Corps personnel use the outermost 
banks to identify OHWMs, regardless of how frequently flows actually 
inundate the area between banks. Another commenter stated that Congress 
did not intend to extend Federal jurisdiction to discharges of dredge 
or fill material into areas that are ordinarily dry. This commenter 
indicated that a Corps district is asserting jurisdiction up to the 
limits of the 25-year floodplain. This commenter also suggested that 
the Corps limit its jurisdiction to areas with an OHWM within a less 
frequently flooded floodplain and that areas outside of the 1 to 5 year 
floodplain should not be considered to be within the OHWMs.
    The Corps agrees that we should look at improving the definition of 
the OHWM. This will be the subject of a separate review. However, no 
schedule has been developed for this review. The frequency and duration 
at which water must be present to develop an OHWM has not been 
established for the Corps regulatory program. District engineers will 
use their judgment on a case-by-case basis to determine whether an OHWM 
is present. The criteria used to identify an OHWM are listed in 33 CFR 
328.3(e).

Procedural Comments

    One commenter said that it was unreasonable to: (1) Expect the 
public to travel to a public hearing to provide comments on the August 
9, 2001, proposal in a government building in Washington DC; (2) 
schedule only one public hearing; (3) expect public comments to reach 
the Corps in a timely manner when the Federal Register notice had only 
a physical address for receiving public comments; and (4) expect the 
public to receive updated information regarding the rescheduling of the 
public hearing because of computer viruses and the absence of phone 
numbers or e-mail addresses in the Federal Register notice. This 
commenter also stated that it was not reasonable to expect public 
comments on proposed NWP regional conditions to be submitted in a 
timely manner because the physical addresses published in the August 9, 
2001, Federal Register notice contained errors, the deadline for public 
comment on the regional conditions was not published in the Federal 
Register, and the comment period for proposed regional conditions 
preceded the

[[Page 2027]]

deadline for public comment published in the Federal Register notice. 
This commenter said that future public notices by the Corps should 
include an electronic mail address, a physical address, and a telephone 
number for submitting of non-electronic comments. This commenter also 
asserted that additional public hearings should be conducted throughout 
the country to provide adequate opportunities for the general public to 
provide public comment prior to the reissuance and modification of the 
NWPs.
    In response to the August 9, 2001, Federal Register notice 
announcing the proposed changes to the NWPs, we received over 2,100 
comments and had 19 people attend the public hearing in Washington, DC. 
We believe that the level of participation is consistent with other 
proposals. We understand that the events on September 11, 2001, has 
affected the general public and we have made reasonable efforts to 
accommodate the public. In response to these events, we postponed and 
rescheduled the September 12, 2001, public hearing and extended the 45-
day comment period by 15 days. The new date of the public hearing and 
the extension of the comment period were announced on our web page at 
http://www.usace.army.mil/inet/functions/cw/cecwo/reg and published in 
the September 18, 2001 (66 FR 48121), and September 21, 2001 (66 FR 
48665), issues of the Federal Register, respectively. We believe that 
sufficient time and notice was given to the public to either 
participate in the public hearing or submit written comments. A 
physical address, web address that allowed electronic submittal of 
comments, and a telephone number with a point of contact were included 
in the August 9, 2001, September 18, 2001, and September 21, 2001, 
issues of the Federal Register. While some addresses within the notice 
may have contained zip code errors, we continue to provide the best 
information possible. We disagree that additional public hearings need 
to be conducted and maintain our position that we have fully complied 
with the public hearing requirements of the Clean Water Act.
    One commenter said that the August 9, 2001, Federal Register notice 
contained several significant changes to the NWPs that were not 
discussed in the preamble. This commenter cited the addition and 
removal of a particular word or clauses that may narrow the protection 
provided by the terms and conditions of an NWP, the general conditions, 
and the definitions. One commenter said that NWPs should be coordinated 
with state agencies and the public and that any permit conditions 
requested by state agencies should be incorporated into the NWPs.
    The preamble to the August 9, 2001, Federal Register notice 
discussed the substantive changes that we proposed for the NWPs and 
general conditions. We do not believe it was necessary to explain all 
minor editing changes to the NWPs, general conditions, and definitions 
in the preamble. However, there were a few errors in the proposal that 
contained some substantive changes that we did not intend to propose as 
changes. These were not discussed in the proposal and have been changed 
back to the original March 9, 2000 language. These errors are discussed 
in the discussion of the NWP, general condition or definition where 
they occurred. Each Corps district issued public notices announcing the 
publication of the August 9, 2001, Federal Register notice for the 
proposal to reissue and modify the NWPs. The district public notice 
process included coordination with state agencies and the public, to 
solicit their comments on regional issues related to the reissuance and 
modification of the NWPs, including any proposed regional conditions. 
We do not agree that all conditions requested by state agencies should 
be incorporated into regional conditions. Division engineers approve 
only those regional conditions that are necessary to ensure that the 
NWPs authorize activities with minimal adverse effects on the aquatic 
environment, individually and cumulatively. However, state and Tribal 
Section 401 water Quality Certification and state Coastal Zone 
Consistency conditions are included as conditions to the NWPs
    One commenter said that the August 9, 2001, proposal to reissue and 
modify NWPs should have had information concerning the cost of 
administering the NWP program. This commenter stated that costs of 
administering the NWP program can be reduced by requiring individual 
permits for all NWP activities that result in more than minimal adverse 
effects on the aquatic environment and require mitigation. Another 
commenter asserted that the August 9, 2001, Federal Register notice 
should have included statistics on the current NWP program, such as the 
number of activities authorized by NWP, the amount of staff time 
expended to process NWP verification requests, and the amount of staff 
time used for compliance and enforcement.
    We did not believe it was necessary to discuss the costs of 
administering the NWP program in the August 9, 2001, Federal Register 
notice. Requiring individual permits for all NWP activities that may 
result in more than minimal adverse environmental effects before 
consideration of mitigation would not reduce costs. The individual 
permit process is more costly to implement than the NWP process. 
Increasing the number of individual permits processed by the Corps 
would increase the costs to implement the Corps regulatory program. We 
do not agree that it was necessary to include statistics on the NWP 
program or the amount of staff time expended to implement the NWP 
program in the August 9, 2001, notice.

Discretionary Authority

    A few commenters objected to the NWPs because they place a large 
part of the responsibility on discretionary authority at the district 
and division levels to reduce the adverse individual and cumulative 
effects to the aquatic environment to a minimal level. One commenter 
suggested that more restrictive national standards on the NWPs should 
be imposed instead of relying upon the discretionary authority process. 
One commenter stated that the use of discretionary authority needs 
further guidance. Another commenter requested clear criteria district 
engineers should use to incorporate safeguards as a result of 
discretionary authority.
    We disagree with these commenters because the PCN and discretionary 
authority processes provide substantial protection for the aquatic 
environment. The PCN requirements of the NWPs allows case-by-case 
review of activities that have the potential to result in more than 
minimal adverse effects to the aquatic environment. If the adverse 
effects on the aquatic environment are more than minimal, then a 
district engineer can either add special conditions to the NWP 
authorization to ensure that the activity results in no more than 
minimal adverse environmental effects or exercise discretionary 
authority to require an individual permit. We believe that district 
engineers are the best qualified to identify projects or activities at 
the local level that may result in more than minimal adverse effects to 
the aquatic environment. In addition, division engineers can add 
regional conditions to the NWPs to lower the PCN threshold or otherwise 
further restrict the use of the NWPs to ensure that the NWPs authorize 
only activities with no more than minimal adverse effects on the 
aquatic environment in a particular watershed or other geographic 
region. The functions and values of aquatic resources differ greatly 
across the

[[Page 2028]]

country. Therefore, minimal effects determinations for proposed NWP 
activities should be made at the local level by district engineers. We 
do not agree that guidance concerning the use of discretionary 
authority needs to be developed and implemented at the national level.

Compliance With the Endangered Species Act

    A couple of commenters said that the Corps should initiate formal 
Endangered Species Act (ESA) consultation for the NWP program. One 
commenter suggested that NWPs be subject to national and district-level 
ESA assessments and formal consultation. One commenter indicated that 
the Corps is violation of section 7 of the ESA for failing to complete 
the mandatory formal consultation process with the U.S. Fish and 
Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) 
prior to reissuing and implementing the NWPs.
    The Corps has initiated formal programmatic ESA consultation with 
the U.S. FWS and NMFS for the NWP program in 1999. A draft Biological 
Opinion has been prepared, but a final Biological Opinion has not been 
issued to date. A section 7(d) determination that the NWP reissuance 
will not foreclose any options has been prepared. Further, we believe 
that the NWPs, through the requirements of General Condition 11, comply 
with ESA. Further where necessary for specific cases we use the 
interagency ESA section 7 consultation regulations at 50 CFR part 402 
when determining compliance with ESA. General Condition 11 requires a 
non-federal permittee to notify the district engineer if any listed 
species or designated critical habitat might be affected or is in the 
vicinity of the proposed activity, or if the proposed work is located 
in designated critical habitat. General Condition 11 also states that 
the permittee 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 by NWP. General Condition 
11 further indicates that the NWP does not authorize the taking of any 
endangered species.
    A few commenters indicated that NWPs create cumulative impacts that 
affect endangered species. One commenter suggested that the Corps 
prohibit the use of NWPs in proximity to areas containing habitat that 
may be used by threatened or endangered species. A couple of commenters 
objected to General Condition 11, stating that it places the 
responsibility of determining whether a proposed activity may affect a 
threatened or endangered species in the hands of the prospective 
permittee.
    To address cumulative impacts that affect endangered species, 
division engineers can impose regional conditions on the NWPs and 
district engineers can add case-specific special conditions to NWP 
authorizations to address impacts to endangered or threatened species 
or designated critical habitat. For example, regional conditions can 
prohibit the use of NWPs in certain geographic areas or require PCNs 
for all activities in areas inhabited by endangered or threatened 
species. Some Corps districts have conducted programmatic ESA 
consultation to address activities regulated by the Corps that may 
affect Federally-listed endangered or threatened species. General 
Condition 11 requires non-federal permittees to notify the Corps if any 
Federally-listed endangered or threatened species or designated 
critical habitat might be affected by the proposed work. Those 
activities that will not affect any Federally-listed endangered or 
threatened species or designated critical habitat do not require 
notification to the district engineer. The regulations at 50 CFR part 
402 do not require ESA consultation for those activities that will not 
affect endangered or threatened species or destroy or adversely modify 
designated critical habitat. The implementation of General Condition 
11, regional conditions, and case-specific special conditions will 
ensure that the NWP program complies with the ESA.

Regional Conditioning of the Nationwide Permits

    One commenter stated that the preamble of the August 9, 2001, 
Federal Register notice makes it clear that in taking into account 
these regional differences, district engineers can change notification 
thresholds or require notification for all activities within a 
particular watershed or waterbody. This commenter indicated that 
district engineers should also have the discretion to eliminate 
notification requirements, increase acreage limits, add permits, and 
authorize activities where the impacts to the environment will be 
minimal based upon the regional conditions.
    Division engineers cannot modify the NWPs by adding regional 
conditioning to make the NWPs less restrictive. Only the Chief of 
Engineers can modify an NWP to make it less restrictive, if it is in 
the national public interest to do so. Such a modification must go 
through a public notice and comment process. However, if a Corps 
district determines that regional general permits are necessary for 
activities not authorized by NWPs, then that district can develop and 
implement regional general permits to authorize those activities, as 
long as those regional general permits comply with section 404(e) of 
the Clean Water Act.
    One commenter stated that regional conditions are not uniformly 
applied by district engineers throughout the country and in some cases 
can potentially result in less protection for the aquatic resources. 
This commenter suggested that Corps districts adopt stronger regional 
conditions or institute stronger national conditions. One commenter 
agreed that regional conditions are an essential tool for protecting 
valuable aquatic resources and accounting for differences in aquatic 
resource functions and values across the country. One commenter stated 
that regional conditions have broadened the applicability of NWPs to 
make them less protective.
    We believe that imposing more restrictive national terms and 
limitations on the NWPs is unnecessary. The terms and conditions of the 
NWPs published in this Federal Register notice, the PCN process, and 
the regional conditioning process will ensure that the NWPs authorize 
activities with no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. It is far more efficient to 
develop NWPs that authorize most activities that have no more than 
minimal adverse effects on the aquatic environment and provide division 
and district engineers with the authority to limit the use of these 
NWPs through discretionary authority or by adding conditions to the 
NWPs.
    For particular regions of the country or specific waterbodies where 
additional safeguards are necessary to ensure that the NWPs authorize 
only those activities with no more than minimal adverse effects, 
regional conditions are the appropriate mechanism to address those 
concerns. For example, regional conditions can restrict the use of NWPs 
in high value waters for those activities that do not require 
submission of a PCN. Division and district engineers are much more 
knowledgeable about local aquatic resource functions and values and can 
prohibit or limit the use of the NWPs in these waters. We believe that 
regional conditioning of the NWPs provides effective protection for 
high value wetlands and other aquatic habitats.
    One commenter stated that NWPs could affect treaty and other Indian

[[Page 2029]]

rights and would like to consult with the Corps on a government to 
government basis to develop regional or national conditions that will 
address the concerns. One commenter recommended regional conditions 
that would require notification of Tribes and provide appropriate 
Tribes with the opportunity to comment on particular NWP activities.
    We believe that General Condition 8, Tribal Rights, addresses the 
issue of tribal rights and the use of NWPs. Division and district 
engineers can consult with Tribes to develop regional conditions that 
will ensure that tribal rights are adequately addressed by the NWP 
process. Division engineers can regionally condition the NWPs to 
require coordination with Tribes when proposed NWP activities may 
affect Tribal lands or trust resources.
    One commenter said that regional conditions should be developed for 
all NWPs to conserve Essential Fish Habitat. A couple of commenters 
indicated that NWPs should not be used in any areas that have been 
ranked as high value wetlands or critical resource waters. One 
commenter indicated that NWPs should not be used to authorize Section 
10 and Section 404 activities in the Lower Hudson River. One commenter 
indicated that regional conditions are troubling because there are no 
central, definitive sources for information concerning those 
conditions.
    We agree that regional conditions are an effective mechanism to 
help ensure that the NWPs comply with the Essential Fish Habitat 
provisions of the Magnuson-Stevens Fishery Conservation and Management 
Act. We require division and district engineers to coordinate with 
regional offices of the National Marine Fisheries Service to develop 
and implement regional conditions to conserve Essential Fish Habitat. 
Areas with high value wetlands or critical resource waters can be 
subjected to regional conditions, to ensure that activities authorized 
by NWPs do not result in more than minimal adverse effects to those 
waters. General Condition 25 addresses the use of certain NWPs in 
designated critical resource waters. This general condition states that 
district engineers can designate additional critical resource waters 
after notice and opportunity for public comment. The Corps has a 
general map of Corps division and district boundaries that is available 
on the Internet at http://www.usace.army.mil/where.html#Divisions. This 
interactive map also provides links to the home pages of Corps 
districts. Due to the scale of this map and since some Corps district 
boundaries are based on watershed boundaries, prospective permittees 
should contact the nearest Corps district office to determine which 
Corps district will review their PCN, permit application. Most Corps 
districts post their regional conditions on their Internet home pages.
    One commenter stated that the last paragraph on page 42070 of the 
August 9, 2001, Federal Register notice contains an incorrect 
statement. This paragraph states that: ``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 ensure that 
NWP use and authorization only occurs for activities with minimal 
adverse effects, individually and cumulatively.'' This commenter said 
that district engineers can only recommend regional conditions and that 
regional conditions must be approved by division engineers.
    This commenter is correct, because regional conditions must be 
approved by division engineers after a public notice and comment 
period. District engineers can propose regional conditions at any time, 
but the division engineer must approve those regional conditions before 
they become effective.

Water Quality Certification/Coastal Zone Management Act Consistency 
Determination Issues

    One commenter suggested that agencies should work together to make 
early agreements on certification conditions or denials of 
certification by states and tribes under section 401 of the Clean Water 
Act and section 307 of the Coastal Zone Management Act (CZMA). This 
would improve protection of the aquatic resources, benefit the 
regulated community, and reduce duplication of workload. Some 
commenters indicated that NWPs should be conditioned to prohibit 
construction by an applicant until all state and local permits are 
issued. A few commenters stated that the Corps should not issue a 
provisional NWP verification letter if the state denies Water Quality 
Certification because local regulators are easily persuaded to issue 
their permit.
    We encourage States and Tribes to coordinate with Corps districts 
to complete and expedite water quality certification (WQC) and coastal 
zone certification for the NWPs. The proposed changes to the NWPs that 
were announced in the August 9, 2001, Federal Register notice are 
minor, and we believe that the proposed changes will not substantially 
affect the water quality certification and coastal zone consistency 
determination processes. Concurrent with the publication of the August 
9, 2001, Federal Register notice, Corps districts and divisions were 
required to issue public notices to solicit comments on proposed 
regional conditions and initiate coordination with states and Tribes 
for the purposes of WQC and CZMA consistency determinations. The NWPs 
published in today's Federal Register notice have not been extensively 
modified from the proposal published in the August 9, 2001, Federal 
Register. These NWPs will become effective in 60 days. Since there have 
been few changes to the proposed NWPs, we believe that 60 days is 
sufficient time for states and Tribes to complete their WQC and CZMA 
consistency determinations. We believe that it is incumbent upon the 
Corps to let the applicant know when we have completed the Corps review 
and what the Corps decision is. It is up to the applicant to get the 
required individual State 401 water quality certification from the 
state, where the state has denied a water quality certification for the 
NWP as a whole.

Discussion of Comments and Final Permit Decisions

Nationwide Permits

    The following is a discussion of the public comments received on 
the proposed nationwide permits and our final decisions regarding the 
NWPs, the general conditions, and the definitions. The Corps prepared 
decision documents on each of the NWPs, which are available on the 
Corps web site, indicated above. Following the discussion of the public 
comments are the final NWPs, the final general conditions, and the 
final definitions.
    1. Aids to Navigation. There were no changes proposed to this 
nationwide permit. Since there were no comments on this nationwide 
permit. The nationwide permit is reissued without change.
    2. Structures in Artificial Canals. There were no changes proposed 
to this nationwide permit. There were no comments on this nationwide 
permit. The nationwide permit is reissued without change.
    3. Maintenance. We did not propose any change to this nationwide 
permit.

[[Page 2030]]

However, there were several comments on this NWP. One commenter 
suggested that `terms' should be applied to maintenance of all flood 
protection works that the Corps built in partnership with the State, 
and that are now maintained by local entities or by ourselves.
    We presume that this comment refers to ``term limits'' on the time 
that may elapse between maintenance events in flood protection 
projects. Although this idea may have merit in the context of the 
original project authorization, or with respect to maintenance 
agreements with local sponsors, we do not believe that such limits can 
or should be imposed through NWP 3. We do not intend this NWP to 
encourage or compel maintenance activities to be conducted more 
frequently than is necessary. However, the eligibility requirements of 
NWP 3(i) do encourage maintenance to be conducted before the structure 
or fill falls into such a state of disrepair that it can no longer be 
considered ``serviceable.''
    Another commenter expressed the opinion that NWP 3 addressed 
activities that are exempt from regulations under section 404(f)(1) of 
the Clean Water Act
    This is not correct. NWP 3 does not, in any way, extend Clean Water 
Act or River and Harbor Act jurisdiction to any area or activity that 
is not subject to these laws. Any activity that is exempt does not 
require a permit for the Corps including NWP 3.
    One commenter suggested that while bioengineered projects are less 
environmentally damaging than riprap and offer benefits to salmon, the 
presence of wood in some bank protection structures has the potential 
to interfere with treaty fishing access by preventing the use of nets 
in areas. Another commenter stated that Tribes should be informed of 
all requests for this NWP that involve in-water work and granted 30 
days to provide comments.
    General Condition 8, Tribal Rights, does not allow an activity or 
its operation to impair reserved tribal rights, including but not 
limited to, reserved water rights and treaty fishing and hunting 
rights. Compliance with the general condition for NWP 3 regarding 
interference with treaty fishing rights, or other tribal rights, and 
the determination of any relevant and necessary modification of this 
NWP is the responsibility of our Division and District offices.
    One commenter suggested that riprap should not be allowed in any 
waterbody where habitat-forming processes are limited, as identified by 
a state or federal watershed analysis for salmon and/or their habitat, 
and where the riprap would interfere with these processes. This 
commenter also suggested that the placement of riprap should be the 
minimum necessary to protect the structure.
    We believe that NWP 3, as proposed, will limit the placement of 
riprap to the minimum necessary to provide adequate erosion protection. 
However, applicable law does not impose any restriction related to the 
habitat-forming processes mentioned by this commenter. In light of 
this, we believe that it would be inappropriate to impose such a policy 
under any Corps permit process. Although the consideration of such 
concerns may be proper in the context of authorizations for new work, 
we do not agree that it should be a compelling consideration in the 
context of the kinds of maintenance activities that are eligible for 
authorization under this NWP.
    One commenter suggested that the Corps prohibit the addition of new 
riprap or, at a minimum, require ``Notification'' if new riprap is 
proposed, and that the Corps prohibit the placement of riprap or any 
other bank stabilization material in any special aquatic site, 
including wetlands. Another commenter stated the permit should prohibit 
``removal of accumulated sediments'' in special aquatic sites.
    Since this NWP only authorizes activities that restore an area to 
its previous condition, we do not believe it is appropriate to prohibit 
the maintenance of structures or fills simply because a special aquatic 
site may have formed in areas that require such repair. Similarly, with 
respect to the discharge of riprap or other bank stabilization 
materials, we do not believe that restoration of banks or of 
stabilization projects, within the limits of NWP 3, should be precluded 
by the presence of a special aquatic site.
    One commenter suggested that this NWP should not be issued for 
maintenance work on culverts that fail to meet appropriate standards 
for the upstream and downstream passage of fish, or issued for culverts 
that do not allow for the downstream passage of substrate and wood. 
This commenter also suggested that if the proposed action is to remove 
the build-up of substrate at the upstream end of the culvert, or from 
the culvert itself, a condition of the permit should be that all 
substrate of spawning size and all wood of any size should be placed at 
the downstream end of the culvert.
    We do not believe there are any national standards that we can 
apply to NWP 3 to assure that an adequate passage for fish and 
substrate materials is provided in the maintenance situations that can 
be authorized under this NWP. However, we agree that, to the extent 
that actions to enhance such fish and substrate passage can be 
incorporated into individual NWP 3 authorizations, they should be 
included as best management practices. We will encourage Corps 
districts to consider this issue when approving maintenance of 
culverts. Any redeposit of excavated spawning-size substrate may be 
authorized under NWP 18, but is subject to the limitations of that NWP
    Several commenters indicated the Corps should withdraw section 
(iii) as the dredging and discharge allowed is double that authorized 
by NWPs 18 and 19 and, as such, will result in greater than minimal 
adverse effects. Several commenters also offered the opinion that 
restoring upland areas damaged by a storm, etc., has nothing to do with 
maintaining currently serviceable structures. Furthermore, some 
commenters suggested that it may be difficult to determine if the 
``damage'' is due to a discreet event after a two-year period. 
Additionally, there is no acreage limit for this section and placement 
of ``upland protection structures'' will result in changes in the 
upstream and downstream hydromorphology of a stream.
    We do not agree that the mere fact that the amount of the dredging 
or discharge authorized under this NWP, as compared to the 
authorization of similar activities under other NWPs, in any way 
indicates that the effects are more than minimal. The question of 
whether or not restoring upland areas has anything to do with 
maintaining currently serviceable structures is not relevant to the 
consideration of this NWP since no such relationship is required by the 
permit itself, or by the regulations governing the issuance of such 
permits. We do agree that, in some cases, it may be difficult to 
determine whether any damage is due to a discrete event. For this 
reason, the NWP prescribes only limited criteria in this regard, and it 
affords considerable discretion to the District Engineer to determine 
when there is a reasonable indication that the damage being repaired 
qualifies for authorization under NWP 3.
    Two commenters indicated the permit can be used to expand the scope 
of other NWPs, including 13, 18, 19 and 31 which could result in more 
than minimal impact to the environment.
    General condition 15 addresses the use of multiple NWPs for a 
project. This condition provides that more than one NWP can only be 
used if the acreage lost

[[Page 2031]]

does not exceed the acreage limit of the NWP with the highest specified 
acreage limit. Normally, when NWPs are combined for a project, the 
combined impacts are no more than minimal. We rely on our District 
offices to provide reasonable final assurance that the use of one or 
more NWPs, as they are applied in actual situations, do not result in 
more than minimal impacts. Districts have discretionary authority to 
require individual permits in situations where there is reason to 
believe that any NWP, individually or in combination with other NWPs, 
will result in more than minimal impacts.
    One commenter suggested that the permit (inappropriately) 
encourages reconstruction in floodplains without questioning the need 
or desirability of doing so.
    We believe that, inherent in the authorization of a structure or 
fill, is the reasonable right to maintain those structures or fills. 
With respect to the kinds of activities that are eligible for 
authorization under NWP 3, we do not agree that an assessment of need 
or desirability, is appropriate or necessary to ensure that the 
relevant effects are no more than minimal, including the effects on the 
floodplain.
    Several commenters stated the lack of a definition of ``discreet 
event'' ignores the natural, hydrological processes at work in stream 
systems and allows landowners to prevent natural meandering processes 
within a waterway caused by normal storm events.
    On the contrary, NWP 3 clearly recognizes that maintenance may be 
required either as a result of a discrete event such as a storm, or as 
a result of non-discrete forces. However, we do not agree that 
landowners should be prevented or unduly constrained from maintaining 
legitimately constructed structures or fills that are subject to the 
effects of natural hydrologic processes of adjoining waters.
    A couple of commenters stated allowing riprap and gabions will 
result in the permanent channelization of natural streams by inhibiting 
their natural movement within the floodplain with major direct and 
secondary effects to the aquatic environment, as well as adverse 
hydrologic affects to downstream properties.
    Since NWP 3 only authorizes activities that repair or return a 
project to previously existing conditions, we do not believe that it 
will result in any effects that did not previously accrue from the 
existence of the original structure or fill, and we believe that the 
maintenance activities authorized under this NWP will have no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively.
    One commenter stated that NWP 3(i) should be modified to also allow 
for the maintenance of existing structures or fill that did not require 
a permit at the time they were constructed.
    NWP 31 does authorize regulated activities related to the repair, 
rehabilitation, or replacement of structures or fills that did not 
require authorization at the time they were constructed. As referenced 
in NWP 3(i), the regulations at 33 CFR 330.3 provide an elaboration on 
this point.
    One commenter suggested that NWP 3(ii) should be modified to allow 
the Corps District Engineer to waive the 200' limitation in any 
direction from the structure when the aquatic resource impacts would 
remain minimal. It should also specify that areas that are only 
excavated with only incidental fallback, temporary stockpile areas, and 
temporary redeposits should not be included in the 200' limitation 
since such impacts would not cause a loss of waters of the US.
    It is entirely reasonable to conclude that regulated discharges 
associated with the removal of accumulated sediments that occur more 
than 200 feet from a certain structure may have no more than minimal 
effects. However, our intent in qualifying such removal for eligibility 
under NWP was to authorize them as part of the maintenance of a 
specific structure, and not simply because the effects were no more 
than minimal. Although we cannot certify that 200 feet is, in any way, 
an absolute distance within which removals are clearly associated with 
the maintenance of the structure, we believe that it is a reasonable 
distance for asserting such association for the purposes of this NWP. 
Incidental fallback associated with otherwise unregulated activities is 
not regulated under section 404 of the Clean Water Act or under section 
10 of the Rivers and Harbors Act. Temporary stockpiles and other 
temporary discharges of dredged or fill materials in waters of the US 
are regulated, but we believe that they can and should be avoided in 
most maintenance situations. Although they may not result in a 
permanent or net loss of waters of the US, and they may have no more 
than minimal adverse effects on the aquatic environment, we do not 
believe that they are necessary in most cases. They can also lead to 
discharges of pollutants into waters of the US that may or may not have 
minimal adverse effects, depending on the circumstances. For these 
reasons, we are not including such activities among those eligible for 
authorization under NWP 3.
    One commenter suggested that NWP 3(iii) should be modified to allow 
the Corps District Engineer to waive the limitation which states that 
dredging may not be done primarily to obtain fill for restorative 
purposes when the aquatic resource impacts would remain minimal or when 
it is environmentally advantageous to allow some modification of pre-
existing contours or discharges of additional fill material to prevent 
recurring damage and the associated repeated disturbance to continually 
repair the damage. This commenter further suggested that the District 
Engineer could then exercise more discretion in terms of requiring 
watershed based mitigation banks and in-lieu fee programs for 
additional impacts while requiring mitigation at a site of superior 
watershed importance.
    This NWP focuses on the repair and restoration of currently 
serviceable structures and not on the source of such material. We are 
not convinced that allowing dredging to obtain the fill material would 
normally have no more than minimal impacts unless there were also 
detailed listing of dredging limitations and conditions. Further, to 
establish such limitations we would need to provide opportunity for 
public review and comment. In light of this, we do not agree that the 
suggested expansion of this NWP is appropriate. This NWP does allow 
some minor deviation, but modifications that are more than minor 
deviations cannot be considered to be ``maintenance'' as it is 
envisioned in this NWP and, depending on the nature and location of 
such prospective changes, separate authorization may be required.
    One commenter stated that individuals should not be able to use 
this Nationwide Permit to increase the area impacted by bank 
stabilization structures.
    NWP 3 does not authorize any significant increase in the original 
structure or fill. Only minor deviations that are necessary to effect 
repairs are eligible for authorization under this NWP.
    One commenter insisted the notification requirement should be 
removed from NWP 3(ii) and NWP 3(iii) as these requirements create 
additional administrative burden with no increase in environmental 
protection or added value to the process. For NWP 3(iii), the commenter 
suggested that the requirement should be changed to a post-construction 
notification in order to expedite repairs necessary to public 
infrastructure.

[[Page 2032]]

    We believe that these PCN requirements, as proposed, are a prudent 
means of assuring that the proposed maintenance activities are limited 
to those eligible for authorization under this NWP. We recognize that 
the PCN requirement imposes an additional burden on the project 
proponent, but we do not believe that it is inequitable or, in most 
circumstances, substantial. Emergency permit procedures are available 
to authorize such maintenance activities more quickly in emergency 
situations.
    One commenter suggested that NWP 3 should be withdrawn as it is too 
broad for projects to be considered ``similar in nature'', or to be 
able to determine that the various projects, when considered 
individually or cumulatively, will result in minimal adverse 
environmental effects. The commenter also felt that its limitations are 
arbitrary and capricious and potentially could result in the exposure 
of highly toxic compounds.
    We believe that NWP 3, as proposed, describes activities that are 
sufficiently similar in nature for the purposes of the NWP Program. 
Since this NWP only authorizes activities needed to return a project to 
a previously existing condition that either was authorized or that was 
implemented prior to the need for authorization, we do not agree that 
the effects will be more than minimal.
    One commenter stated the Corps is unlikely to obtain adequate 
information on whether or not a change in use is contemplated, what the 
practicable alternatives are, or what materials are used unless an 
Individual Permit is required. In light of this, the commenter 
suggested that NWP 3 should be rewritten to prevent serious and 
widespread abuses.
    We acknowledge that under this NWP we rely on the applicant's 
information on the intended use and on other aspects of the regulated 
activity. Since this NWP only authorizes activities that would return a 
project to previously existing conditions, we believe that the 
likelihood of serious or widespread abuses is exceedingly low. Further, 
we have the authority and use our authority to enforce compliance with 
permits, where necessary. The nationwide permit is reissued without 
change.
    4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. There were no changes proposed to this 
nationwide permit. There were no comments on this nationwide permit. 
The nationwide permit is reissued without change.
    5. Scientific Measurement Devices. There were no changes proposed 
to this nationwide permit. One commenter stated the word ``primarily'' 
should be replaced with the word ``solely''. We believe that this 
change would unnecessarily restrict the NWP and require an individual 
permit in a few cases, simply because there was a secondary use or 
benefit of the scientific devise. Further, we do not believe that the 
requirement for an individual permit, for that reason, would result in 
any added value for the environmental. The nationwide permit is 
reissued without change.
    6. Survey Activities. There were no changes proposed to this 
nationwide permit. There were no comments on this nationwide permit. 
The nationwide permit is reissued without change.
    7. Outfall Structures and Maintenance. There were no changes 
proposed to this nationwide permit. One commenter suggested that 
notification should be limited to impacts greater than one acre, and 
that the District Engineer should have the authority to quickly issue 
this permit, without agency notification, by placing conditions 
limiting construction activities to periods of low-flow or no-flow in 
unvegetated ephemeral watercourses. Another commenter indicated the 
Corps should withdraw NWP 7(ii) since NWP 19 already provides for minor 
dredging, or limit the amount of material to be excavated to 25 cubic 
yards in order to be consistent with NWP 19.
    The Corps believes that the limitations on the amount of fill that 
can be placed per linear foot is normally sufficient to ensure that the 
adverse effects on the aquatic environment will be minimal, 
individually and cumulatively. We agree that some impacts can be 
reduced by conducting certain activities in waters of the United Sates 
during low-flow or no-flow conditions. However, we also believe that a 
prohibition is not necessary or not practicable in many cases. We 
believe that this practice should be encouraged to further minimize any 
adverse effects on the aquatic environment. Therefore, we have modified 
general condition 3 to encourage this practice. We agree that there is 
some redundancy between NWP 7(ii) and NWP 19. However, we believe that 
NWP 7(ii) should not be eliminated since it is related to other 
activities authorized by NWP 7. Furthermore, the terms of NWP 7 are 
specific to that type of activity.
    One commenter said this permit should prohibit the removal of 
accumulated sediments from small impoundments and special aquatic sites 
as these locally support rare, threatened or endangered water-dependent 
organisms.
    The Corps does not believe that these areas normally support rare, 
threatened or endangered water dependent organisms, but this NWP does 
not authorize any regulated activity unless it complies with the 
Endangered Species Act. This NWP only allows the removal of accumulated 
sediments to maintain a preexisting depth, to facilitate water 
withdrawal at the location of the water intake.
    One commenter insisted that NW7 should be withdrawn as it is too 
broad for projects to be considered ``similar in nature'', or to be 
able to determine that the various projects, when considered 
individually or cumulatively, will result in minimal adverse 
environmental effects. The commenter also suggested that its 
limitations are arbitrary and capricious. The Corps believes that the 
description of the type of activities will ensure that those activities 
authorized by this NWP will be similar in nature. Further, we believe 
that these activities normally will have no more than minimal adverse 
effects on the aquatic environment, individually or cumulatively. 
Further, Division and District Engineers will condition such activities 
where necessary to ensure that these activities will have no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively.
    The nationwide permit is reissued without change, however condition 
3 was modified based on a comment on this NWP as indicated above.
    8. Oil and Gas Structures. There were no changes proposed to this 
nationwide permit. However, one commenter recommended that NWP 8 should 
be withdrawn as it is too broad for projects to be considered ``similar 
in nature'', or to be able to determine that the various projects, when 
considered individually or cumulatively, will result in minimal adverse 
environmental effects. The commenter indicated that this permit 
category has the potential for catastrophic secondary, indirect, and 
cumulative adverse impacts, including adverse impacts to federally 
listed threatened or endangered species.
    The Corps believes that this NWP is sufficiently restrictive to 
protect the environment. The only structures that can be authorized 
under this NWP are those within areas leased by the Department of the 
Interior, Minerals Management Service. The general environmental 
concerns are addressed in the required NEPA documentation that the 
Service must prepare prior to issuing a lease. Further, Corps 
involvement is only to review impacts on navigation and national 
security as stated in 33 CFR 322.5(f). The

[[Page 2033]]

nationwide permit is reissued without change.
    9. Structures in Fleeting and Anchorage Areas. There were no 
changes proposed to this nationwide permit. However, one commenter 
suggested changing the permit to read: ``Buoys, floats and similar non-
structural devices placed within anchorage or fleeting areas to 
facilitate moorage of vessels where the USCG has established such areas 
for that purpose.''
    The Corps believes that this change is not needed. The current 
language is sufficient to ensure that the category of activities will 
be similar in nature. We believe that the suggested language would not 
allow certain structures that are necessary for moorage of vessels to 
be authorized within anchorage and fleeting areas. The types of 
structures permitted by this NWP within USCG established anchorage or 
fleeting areas are only those for the purpose moorage of vessels. We 
believe that this limits the type of structure sufficiently to be 
considered similar in nature. The nationwide permit is reissued without 
change.
    10. Mooring Buoys. There were no changes proposed to this 
nationwide permit, and there were no comments on this nationwide 
permit. The nationwide permit is reissued without change.
    11. Temporary Recreational Structures. There were no changes 
proposed to this nationwide permit. However, one commenter recommended 
withdrawing NWP 11 as it is too broad for projects to be considered 
``similar in nature'', or to be able to determine that the various 
projects, when considered individually or cumulatively, will result in 
minimal adverse environmental effects. The commenter also stated that 
the permit category has the potential for catastrophic secondary, 
indirect, and cumulative adverse impacts, including adverse impacts to 
Federally listed threatened or endangered species. Another commenter 
suggested that temporary buoys, markers, small floating docks, and 
similar structures can interfere with the exercise of treaty fishing 
access and, therefore, in an area subject to treaty fishing, 
notification to affected tribes is required. The commenter further 
stated the regional conditions should be added, to require that such 
structures shall be removed from salmon spawning areas prior to 
commencement of the spawning season.
    We believe that the listing of the type of activities will ensure 
that those activities authorized by this NWP will be similar in nature. 
Further, we believe that normally these activities will have no more 
than minimal adverse effects on the aquatic environment, individually 
and cumulatively. Further, Division and District Engineers will 
condition such activities where necessary to ensure that these 
activities will have no more than minimal adverse effects on the 
aquatic environment, individually and cumulatively. We agree that this 
NWP, as with all NWPs, should not authorize any activity that may 
impair reserved tribal rights, including, but not limited to, those 
reserved water rights, and treaty fishing and hunting rights, as stated 
in general condition 8. District and division engineers will consider 
the need to add regional conditions or case-specific conditions where 
necessary to protect such tribal rights. The nationwide permit is 
reissued without change.
    12. Utility Line Activities. No changes to this nationwide permit 
were proposed. Several commenters raised issues and suggested changes 
related to size and threshold limits and construction practices. One 
commenter said that the permit should contain height and depth 
requirements for utility line installation. Another commenter suggested 
that a strict cap limit on the size of the utility line should be 
established. One commenter suggested that the Corps should require 
revegetation, as well as restoration, of the landscape's original 
contours for all NWP12 projects. One commenter suggested that 
sidecasting of material into wetlands should be prohibited, as should 
the construction of permanent access roads. One commenter suggested 
that the Corps should limit temporary sidecasting to 30 days, rather 
than 90 to 180 days as currently written. The commenter also suggested 
that, because temporary impacts can have more than minimal adverse 
effects, they should be limited to \1/2\-acre, and total impacts should 
be limited to 0.3 acres. One commenter recommended raising the acreage 
limit from \1/2\ acre to one acre. Another commenter said that the \1/
2\ acre limit is arbitrary and capricious.
    Based on our experience, the Corps believes that the current 
thresholds and construction limitations are adequate to protect the 
aquatic environment while allowing needed projects to proceed, with 
restrictions. Furthermore, district engineers can further restrict 
specific activities, such as limiting sidecasting to 30 days where 
necessary. At this time, we do not believe that it is necessary or 
appropriate to increase or reduce the thresholds.
    Several commenters suggest changes to the preconstruction 
notification (PCN) requirement. One commenter recommended requiring a 
PCN for all lines greater than 6" in diameter. Two commenters indicated 
that the absence of a clear definition of ``mechanized land clearing'' 
and a reasonable threshold for requiring PCNs creates regulatory 
uncertainty and an unnecessary burden on gas utility and pipeline 
construction projects. They further indicated that the notification 
requirement would be more reasonable and consistent with other NWP 
criteria if it only applied when mechanized land clearing affects more 
than a reasonable acreage of forested wetland. Another commenter 
recommended removing the PCN requirements for any mechanized land 
clearing that occurs in forested wetlands for utility rights-of-way. 
One commenter stated the Corps should exempt all utility projects other 
than sewer lines from the notification criteria because it is an 
unnecessary burden on non-sewer, energy-related utility projects, which 
typically will cross a water at right angles as opposed to running 
parallel to a stream bed that is within a jurisdictional area. Also, 
one commenter suggested we substitute a Corps-only PCN for activities 
resulting in the loss of between \1/2\ and one acre of waters of the 
U.S. and a broader PCN for activities resulting in the loss of more 
than one acre. One commenter recommended reducing the PCN time period 
for a Corps response from 45 to 30 days.
    The Corps believes that the current PCN requirements continue to be 
the appropriate criteria for determining when a PCN is required. We do 
not believe that an additional PCN requirement related to the size of 
the utility line is appropriate since the impacts of the utility line 
are temporary, and since restoration to preconstruction contours is 
required. We believe that projects involving mechanized land clearing 
require a PCN so that the Corps can ensure that the effect are no more 
than minimal. We also believe that the requirement for agency 
coordination of PCNs for activities that affect more than \1/2\ acre 
for all NWPs, including this one, should remain in place to avoid 
confusion and to be consistent for all other NWPs. We believe that the 
45 day response time for PCN is appropriate. It provides adequate time 
for those NWP activities that need some extra time to review. Corps 
Districts do not routinely use the 45 day period. Currently the average 
review time for NWP verifications is 18 days.
    One commenter stated that natural gas distribution and pipeline 
projects typically only result in incidental fallback and, as such, 
should not require a 404 permit.
    The Corps disagrees that such projects exclusively result in only 
incidental fallback. The Corps recognizes that

[[Page 2034]]

some excavation activities are likely to result in only incidental 
fallback that does not require a Corps permit under section 404 of the 
Clean Water Act. However, the Corps regards the use of mechanized earth 
moving equipment in waters of the US as resulting in a discharge of 
dredged material unless project specific evidence shows that the 
activity results in only incidental fallback. (See 33 CFR 
323.2(d)(2)(i)). The determination whether a permit is required will be 
made on a case-by-case basis. In addition, the backfill for the 
pipeline is a regulated discharge which requires authorization under 
section 404 of the Clean Water Act.
    A few commenters suggested that the NWP, as proposed, would 
eliminate the \1/2\ acre threshold for several activities. They 
indicated that the proposed NWP states that ``activities authorized by 
paragraph (i) and (iv) may not exceed a total of \1/2\-acre loss of 
waters of the U.S.'' whereas the existing NWP states that ``activities 
authorized by paragraphs (i) through (iv) may not exceed a total of \1/
2\-acre loss of waters of the United States.'' Since the current NWP 
language more clearly indicates that the total loss may not exceed \1/
2\-acre, they recommended that the current language should be retained.
    The Corps agrees with this comment. The change was an error and the 
Corps did not intend to change this NWP. The current language will be 
retained.
    Several commenters indicated that the discharge of dredged or fill 
material under this NWP could adversely affect a number of species 
listed under the Endangered Species Act.
    The Corps believes that General Condition 11 is adequate to protect 
endangered species. No NWP authorizes any activity that does not comply 
with the Endangered Species Act.
    One commenter recommended that the Corps prohibit ``stacking'' NWP 
12 authorizations to allow multiple crossings, or to allow the use of 
NWP 12 in combination with any other NWP.
    This NWP can only be used once for a pipeline crossing of a water 
of the United States. A pipeline project may cross more than one 
stream. However, each of these separate and distinct crossings is 
considered a single and complete crossing in accordance with Corps 
regulations at 33 CFR 330.2(i).
    A few commenters recommended that the use of NWP12 for water 
intakes should not be approved because the low head dams typically 
associated with such structures can violate general condition 4. Some 
commenters also indicated that water withdrawal projects have different 
requirements than standard utility line crossings resulting in 
alterations to natural flow regimes that cannot be considered under 
this NWP.
    NWP 12 specifies that all activities authorized by this NWP must 
comply with General Condition 4. Furthermore, NWP 12 cannot be used to 
authorize low head dams. Such structures would require an individual 
permit or some other general permit.
    Two commenters requested the Corps revoke NWP12(ii) since they 
believed that it is unnecessary to construct such facilities in 
wetlands. They believe that providing an easily attainable 
authorization for such construction will actually encourage the 
placement of utility lines in wetland areas, resulting in an increase 
in the loss of wetlands.
    We agree that any unnecessary construction of utility line 
substations in wetlands should be avoided. However, where such 
construction cannot be avoided as a practical matter, we believe that 
the limitations we have imposed in the NWP will ensure that any adverse 
effects on the aquatic environment will be no more than minimal, 
individually and cumulatively.
    One commenter suggested that NWP 12 should be conditioned to 
require BMP's on private lands only, since federal and state land 
managers are more likely to impose conditions on properties under their 
control.
    We believe that the term and conditions are adequate to ensure that 
any adverse effects on the aquatic environment will be no more than 
minimal, individually or cumulatively. The Corps districts will add 
regional or case specific conditions where they determine a need for 
such conditions.
    One commenter said that NWP 12 should be withdrawn as it is too 
broad for projects to be considered ``similar in nature'', or to be 
able to determine that the various projects, when considered 
individually or cumulatively, will result in minimal adverse 
environmental effects. The permit category has the potential for 
catastrophic secondary, indirect, and cumulative adverse impacts, 
including adverse impacts to federally listed threatened or endangered 
species.
    We believe that the minor nature of these types and categories of 
activities are similar in nature. We further believe that the 
conditions and specified thresholds will ensure that the activities 
will have no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. The thresholds have been 
developed based on years of experience and were developed to consider 
most effects that could occur in many areas of the country. However, 
Division and District Engineers will condition such activities where 
necessary to ensure that those activities will have no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively. Activities authorized by this NWP must comply with 
general condition 11 to ensure that the activity is in compliance with 
the Endangered Species Act.
    One commenter suggested we remove the sentence ``waters of the 
United States temporarily affected by filling, flooding, excavation, or 
drainage, where the project area is restored to preconstruction 
contours and elevations, are not included in the calculation of 
permanent loss of water of the United States.''
    The Corps has established the threshold limits for all NWPs to be 
for permanent loss of waters of the US. Further we have establish the 
thresholds to provide for the Corps to be able to look at those 
projects to ensure that there will be no more minimal adverse effects 
on the aquatic environment, individually or cumulatively. Because the 
temporary discharges do not result in long lasting impacts and any 
short term impacts are less per acre than permanent, adding those 
temporary impacted acreage to permanent acreage would not provide an 
accurate measure of the potential impacts that may result in more than 
minimal effects.
    One commenter recommended that a threshold of \1/2\-acre should be 
used below which no compensatory mitigation should be required, unless 
a District Engineer determines otherwise. Another commenter suggested 
the changes in values and functions associated with the permanent 
conversion of maintaining gas line rights-of-way are more likely to be 
beneficial than detrimental. Because of the benefits, as well as the 
very limited extent of vegetation change, a mitigation ratio of 1:1 
should be adopted for wetland disturbances above \1/2\-acre. One 
commenter suggested we remove the paragraph that characterizes the 
conversion of a forested wetland to an herbaceous wetland as a 
``permanent adverse effect'' that requires mitigation. Compensatory 
mitigation should not be required as well-maintained herbaceous 
wetlands are of significant value and often provide greater ecological 
functions. Additionally, many utility construction and maintenance 
activities result in only temporary effects on wetlands.
    The Corps believes that mitigation should be required to ensure 
that any adverse effects on the aquatic environment will be no more 
than

[[Page 2035]]

minimal, individually or cumulatively. We have proposed to modify 
General Condition 19 concerning mitigation requirements for the NWPs. 
See the preamble discussion on General Condition 19 for our response to 
mitigation comments. The nationwide permit is reissued without change.
    13. Bank Stabilization. The Corps proposed no changes to this NWP. 
One commenter said that this NWP should be withdrawn because it is too 
broad to meet the ``similar in nature'' requirement of general permits 
and it authorizes activities that may result in more than minimal 
adverse environmental effects. This commenter also stated that this NWP 
has the potential for substantial secondary, indirect, and cumulative 
adverse impacts, including adverse impacts to federally listed 
threatened or endangered species and environmental damage at riprap 
extraction sites. Another commenter stated that the Corps needs to 
develop a method to document, analyze, and minimize environmental 
impacts from all bank stabilization activities. One commenter stated 
that this NWP authorizes activities that adversely affect natural 
stream processes, is contrary to current practices and philosophies of 
natural stream rehabilitation, and impedes future restoration work. A 
couple of commenters suggested that the Corps adopt a ``no net loss in 
natural stream banks'' policy, requiring the removal of one linear foot 
of bank stabilization for every linear foot of new bank stabilization. 
Two commenters stated that the Corps should direct its bank 
stabilization and bank restoration programs toward the goal of 
maintaining and restoring natural stream processes to the Nation's 
rivers and streams.
    This NWP complies with the ``similar in nature'' requirement of 
general permits, including nationwide permits, even though there are 
numerous methods of bank stabilization that can be authorized by this 
NWP. The terms and conditions, including the notification requirements 
and the ability of division and district engineers to impose regional 
and case-specific conditions on this NWP, will ensure that the 
activities authorized by this NWP will result in no more than minimal 
individual and cumulative adverse effects on the aquatic environment. 
For those NWP 13 activities that require notification, district 
engineers will review the proposed work to ensure that those activities 
result in no more than minimal adverse effects to the aquatic 
environment. We do not agree that it would be appropriate to adopt a 
``no net loss'' goal for stream banks. Stream bank stabilization 
activities are necessary to protect property and ensure public safety. 
Stream restoration is not always feasible in developed areas and other 
types of bank stabilization may be more appropriate in those areas.
    One commenter said the NWP should encourage consideration of more 
environmentally acceptable methods of bank stabilization first, and if 
those methods are not appropriate, then hard erosion control measures 
such as riprap or bulkheads could be authorized. A commenter 
recommended that this NWP authorize techniques that employ more natural 
methods of bank protection channelward of the ordinary high water mark, 
which may or may not include the use of hard armoring materials.
    We do not agree that it is necessary to establish preferences for 
bank stabilization methods in the terms and conditions of this NWP. In 
certain situations, riprap or bulkheads may be the only practicable 
methods of bank stabilization. This NWP can be used to authorize bank 
stabilization activities channelward of the ordinary high water mark, 
as long as the terms and conditions of the NWP are met.
    One commenter stated that the 500 linear foot limit of this NWP 
should be reduced to 100 linear feet, to prevent significant 
degradation of salmon habitat. Two commenters said that NWP 13 should 
not authorize bank stabilization activities in excess of 300 linear 
feet. One commenter indicated that NWP 13 should be modified to allow 
district engineers to waive the 500 linear foot limit when impacts to 
aquatic resource are minimal or when it is environmentally advantageous 
to allow additional bank stabilization to prevent recurring damage. 
Such a waiver would reduce repeated disturbances associated with 
continuously repairing damaged bank stabilization measures that were 
shortened to meet the limit. This commenter also said that this waiver 
would allow district engineers to exercise more discretion in terms of 
requiring watershed based mitigation banks and in-lieu fee programs for 
additional impacts and requiring mitigation at a site of greater 
watershed importance.
    Based on our experience of using this limit for over 25 years, we 
believe that 500 linear feet is the appropriate limit. However, this 
limit can be waived as indicated in the first sentence of the last 
paragraph of NWP 13 which states that bank stabilization activities in 
excess of 500 feet in length may be authorized if the project proponent 
notifies the district engineer in accordance with General Condition 13 
and the district engineer determines that the proposed work results in 
minimal individual and cumulative adverse environmental effects. 
Division engineers can regionally condition this NWP to prohibit or 
restrict its use in streams inhabited by salmon. For those activities 
that require notification, district engineers will review the proposed 
work to ensure that the adverse environmental effects are no more than 
minimal.
    One commenter said that projects proposing bank stabilization 
structures of more than 300 feet should be elevated to the Individual 
Permit level.
    Past experience with the limits of this NWP leads us to believe 
that the currently proposed 500-foot limit generally will not result in 
more than minimal impacts.
    Two commenters recommended the Corps prohibit stacking of NWP 13 
with itself or any other NWP. Two commenters stated the Corps should 
prohibit the use of waste concrete for bank stabilization material due 
to the environmental problems, such as toxic paints from sidewalks, 
rebar from construction, and petroleum products from automobiles. One 
commenter indicated that the placement of wood in bank stabilization 
projects has the potential to interfere with treaty fishing access and 
affected tribes should be notified of activities authorized by this 
NWP.
    This NWP authorizes single and complete bank stabilization 
activities. We do not agree that it would be appropriate to prohibit 
the use of NWP 13 with other NWPs, but we do prohibit using a NWP more 
than once for a single and complete project. General Condition 15 
addresses the use of more than one NWP for a single and complete 
project. General Condition 18 addresses the use of suitable material 
for discharges of dredged or fill material into waters of the United 
States. This general condition prohibits the use of materials that 
contain toxic pollutants in toxic amounts. General Condition 8, Tribal 
Rights, indicates that no activity or its operation may impair reserved 
tribal rights, including, but not limited to, reserved water rights and 
treaty fishing and hunting rights. This NWP can further be regionally 
conditioned by division engineers to ensure that bank stabilization 
activities do not interfere with specific treaty fishing access. This 
nationwide permit is reissued without change.
    14. Linear Transportation Projects. In the August 9, 2001, Federal 
Register notice, we proposed to modify NWP 14

[[Page 2036]]

to authorize private transportation projects in non-tidal waters to 
have a maximum acreage of \1/2\-acre instead of the current \1/3\-acre, 
and to eliminate the 200 linear-feet prohibition.
    Numerous commenters agreed with the proposal to treat both public 
and private transportation projects the same for tidal and non-tidal 
waters and increase the impact limit to \1/2\-acre in non-tidal areas. 
Most agreed that the Corps was unjust in differentiating between 
private and public projects in the past. Two commenters recommended 
that the \1/2\ acre threshold be increased to assist the applicant with 
projects that may still have minimal impacts however will go over the 
allowed threshold and stated this will decrease the amount of 
individual permits. Several commenters disagreed with the proposal to 
treat both public and private transportation projects the same and 
indicated that private individuals are less likely to have access to 
critical resource and ecological information to assist them in 
designing their project with minimal impacts to the aquatic 
environment. Some commenters recommended that the \1/2\-acre threshold 
be changed to \1/2\-acre overall. One commenter stated that the change 
in the acreage threshold conflicts with the general requirement of the 
Nationwide Permits to have minimal adverse impacts on the aquatic 
environment. One commenter stated that this NWP supports a non-water 
dependant activity and therefore activities proposed under this NWP 
should be reviewed as an Individual Permit. One commenter recommended 
that the Corps withdraw all proposed changes.
    We have determined that the impacts to the aquatic environment for 
transportation projects will be essentially the same whether the 
project is public or private and on the average we would expect the 
private transportation projects to be smaller. We believe that private 
projects go through local, state, and other permitting processes and 
have the same access to resource and ecological information as public 
projects. Furthermore, the terms and conditions will ensure that NWP 14 
will have no more than a minimal adverse effect on the aquatic 
environment. We believe that a distinction needs to be made for 
transportation crossings based on whether they cross tidal or non-tidal 
waters. We are not changing the maximum acreage of NWP 14, but are 
applying the maximum acreage to non-tidal waters rather than public 
projects. We have determined that the maximum loss of waters of the US 
for this NWP should be \1/2\ acre in non-tidal waters of the US and \1/
3\ acre in tidal waters of the US. Both limits along with the terms and 
conditions of the NWP will ensure that this NWP does not authorize 
activities with more than minimal adverse effects on the aquatic 
environment.
    Many commenters objected to the removal of the 200 linear-foot 
restriction because this type of impact could not be considered 
minimal. The commenters stated that streams have no adjacent wetlands 
therefore allowing several hundred feet of stream to be impacted before 
the \1/2\ acre threshold is reached, that requiring a linear measure 
ensures that impacts will be minimal, and no justification was provided 
in the Federal Register for proposing this change. Numerous commenters 
agree with the removal of the 200 linear-foot restriction and have 
stated that the PCN threshold, as well as the acreage limit, will 
continue to provide protection to the environment. One commenter 
recommended that a 100 linear-foot restriction be adopted.
    We proposed to remove the 200 linear-feet prohibition from NWP 14 
to eliminate varied interpretations and to simplify the basis for use 
of the permit. We have determined that the removal of this prohibition 
will have little practical effect as the limiting factor contained in 
the terms and conditions of NWP 14 is most often the acreage 
limitation. We believe that very few projects exceeding the 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). We have determined that 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. 
Therefore, we have concluded that these measures, along with the other 
terms and conditions of the NWPs and other mechanisms such as regional 
conditions and the discretionary authority, will ensure that any NWP 14 
activity that complies with the acreage threshold will have no more 
than a minimal adverse effect on the aquatic environment.
    Two commenters recommend that all proposed changes be implemented 
and individual Corps Districts not be allowed the use of discretionary 
authority to restrict these changes nor require an individual permit 
for multiple stream crossings. One commenter recommended that 
mitigation always be required for impacts under NWP 14.
    We believe that the use of discretionary authority by District 
Engineers is necessary to ensure that impacts to the aquatic 
environmental that are more than minimal receive the proper review. The 
requirement for a compensatory mitigation proposal applies to those 
activities that require notification. Further, for projects not 
requiring a PCN, District Engineers may determine, on a case-by-case 
basis, that compensatory mitigation is necessary to offset losses of 
waters of the United States because the work, without compensatory 
mitigation, will result in more than minimal adverse effects on the 
aquatic environment. This could occur if the project proponent submits 
a voluntary verification request to the Corps or if a concern is raised 
to the Corps by a third party.
    Numerous commenters agreed with the preamble clarification that 
features integral to linear transportation projects are covered under 
NWP 14 and stated this clarification will reduce confusion without 
adversely affecting environmental values. One commenter objected to the 
clarification of features integral to linear transportation projects 
and stated that the addition of these activities expands the 
possibility of impacts, which often could be avoided. One commenter 
recommended that the term ``stormwater detention basin'' (as used in 
the preamble to the proposed NWPs) be changed to read ``stormwater 
management basin'' and ``water quality enhancement measure'' be changed 
to read ``water quality/wetland enhancement measures''. The commenter 
stated that this change would allow additional stormwater best 
management practices to be authorized by this permit.
    We do not believe that the features described in preamble of the 
August 9, 2001, issue of the Federal Register, expanded the activities 
that can be authorized by NWP 14. We have maintained that NWP 14 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. We believe the 
examples listed in the preamble are dependent integral components of 
typical linear projects and were added for clarification. We maintain 
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). These examples and other integral features 
not listed could be authorized. We agree that stormwater management 
features and wetlands features integrally related to the linear

[[Page 2037]]

transportation project could be authorized by this NWP. In addition, 
other NWPs may be combined with this NWP to authorize related 
activities subject to general condition 15.
    Several commenters addressed the Corps definition of single and 
complete project under NWP 14. One commenter recommends that any 
proposed roadway fill in special aquatic sites, including wetlands 
require a PCN with agency coordination. One commenter recommended that 
the definition of ``single and complete project'' be amended to include 
all portions of the linear project that do not have independent 
utility. One commenter recommended that multiple stream crossings 
should be deemed to be part of a single road project. One commenter 
recommended that additions to previously permitted projects be reviewed 
under the individual permit to avoid piece-mealing.
    Notification is required for all discharges of dredged or fill 
material into special aquatic sites and discharges resulting in the 
loss of greater than \1/10\ acre of waters of the United States. We 
believe most activities authorized by this NWP will require 
notification to the district engineer and the determination as to 
whether to require an individual permit should be made on a case-by-
case basis. For example, if NWP 14 is used more than once by different 
project proponents to cross a single waterbody, the district engineer 
will assess the adverse effects on the aquatic environment and 
determine if those adverse effects are minimal. As with any NWP, the 
district engineer can exercise discretionary authority and require an 
individual permit if the adverse effects on the aquatic environment 
will be more than minimal. The definition of the term ``single and 
complete project'' for linear projects can be found in Corps regulation 
at 33 CFR 330.2(i).
    Many commenters recommend that NWP 14 not be authorized within 
tidal wetlands or waters and wetlands adjacent to tidal waters as these 
areas have great ecological importance and already suffer from 
development pressures. One commenter recommended an individual permit 
be required for activities within tidal wetlands and wetlands adjacent 
to tidal waters. One commenter recommended the language in section a. 
(2) be changed to read ``linear transportation projects in tidal waters 
and non-tidal wetlands adjacent to tidal waters''.
    We agree that tidal waters or water and wetlands adjacent to tidal 
water can have great ecological importance and have suffered from 
development pressures. However, the current language is sufficient to 
protect such areas. We have developed terms and conditions to keep 
adverse impacts at a minimal level. Further, in many cases a PCN is 
required and Districts will add case specific conditions and mitigation 
when needed to ensure that adverse impacts will be minimal. Some 
projects will need to be processed as an individual permit. The 
district offices will make that determination when necessary to ensure 
that the adverse effects to the aquatic environment will be no more 
than minimal.
    One commenter recommends that the Corps prohibit the construction 
of new transportation or spur projects under this NWP. Due to the 
development potential associated with road projects, a thorough 
alternative analysis, along with agency and public review should be 
required.
    The main purpose of this NWP is to authorize new linear 
transportation crossing of waters of the US. It may also authorize new 
crossings involved in relocating of existing linear transportation 
projects. This NWP does not authorize a transportation project as a 
whole, which does not require authorization by the Corps of Engineers. 
However, we will address alternatives to crossings to avoid and 
minimize adverse effects in accordance with General Condition 19, to 
ensure that adverse effects on the aquatic environment are no more than 
minimal.
    One commenter recommends, condition ``f'' be clarified to ensure 
less than minimal effects on the environment. The clarification should 
state ``all stream crossings be engineered to transport flows and 
sediment during both bank full and flood flows''. Furthermore the 
clarification should state the permit does not authorize crossings that 
block flows in or restrict the stream's access to the floodplain. The 
commenter further recommended that the condition require equalization 
culverts be installed as part of crossings that affect flood plains.
    We agree that activities authorized by this NWP can have adverse 
effects related to flow and movement of water through and under the 
crossings. For that reason, the term f. of the NWP was added to 
emphasize the need for projects authorized by this permit to adequately 
address water movement impacts. This provision refers to General 
Conditions 9 & 21. We believe that along with these two conditions, the 
effects of crossings on the movement of water will be no more than 
minimal.
    15. U.S. Coast Guard Approved Bridges. There were no changes 
proposed to this nationwide permit. However, one commenter recommended 
that NWP 15 be withdrawn as it is too broad for projects to be 
considered ``similar in nature'', or to be able to determine that the 
various projects, when considered individually or cumulatively, will 
result in minimal adverse environmental effects. The commenter also 
stated that the permit category has the potential for catastrophic 
secondary indirect, and cumulative adverse impacts, including adverse 
impacts to federally listed threatened or endangered species.
    We believe that the listing of the type of activities and that they 
are related to bridge construction only will ensure that those 
activities authorized by this NWP will be similar in nature. Further, 
we believe that normally these activities will have no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively. However, Division and District Engineers will condition 
such activities where necessary to ensure that these activities will 
have no more than minimal adverse effects on the aquatic environment, 
individually and cumulatively. The nationwide permit is reissued 
without change.
    16. Return Water From Upland Contained Disposal Areas. There were 
no changes proposed to this nationwide permit. A few commenters 
suggested that, in order to assure that the lands and waters draining 
the disposal areas are not contaminated from pollutants entrained in 
the dredged material, the NWP should be tightened to require individual 
permit review unless the discharge/leachate from the dredged material 
is controlled through a NPDES permit. Another commenter stated that NWP 
16 should be withdrawn as it is too broad for projects to be considered 
``similar in nature'', or to be able to determine that the various 
projects, when considered individually or cumulatively, will result in 
minimal adverse environmental effects. The commenter also stated that 
the permit category has the potential for catastrophic secondary 
indirect, and cumulative adverse impacts, including adverse impacts to 
federally listed threatened or endangered species.
    Consistent with 33 CFR 323.2(d)(1)(ii), this NWP authorizes the 
return water as the discharge of dredged material. As such, an NPDES 
permit is not required. However, a 401 certification is required and we 
believe will adequately control the quality of the return flow. We 
believe that the listing of the type of activities will ensure that 
those activities authorized by this NWP will be similar in nature. 
Further, we believe that normally these activities will have no more 
than

[[Page 2038]]

minimal adverse effects on the aquatic environment, individually and 
cumulatively. Further, Division and District Engineers will condition 
such activities where necessary to ensure that these activities will 
have no more than minimal adverse effects on the aquatic environment, 
individually and cumulatively. General Condition 11 ensures that the 
activity will comply with the Endangered Species Act. The nationwide 
permit is reissued without change.
    17. Hydropower Projects. There were no changes proposed to this 
nationwide permit. There were no comments on this nationwide permit. 
The nationwide permit is reissued without change.
    18. Minor Discharges. There were no changes proposed to this 
nationwide permit. One commenter said that NWP 18 should be withdrawn 
as it is too broad for projects to be considered ``similar in nature'', 
or to be able to determine that the various projects, when considered 
individually or cumulatively, will result in minimal adverse 
environmental effects. The permit category has the potential for 
catastrophic secondary indirect, and cumulative adverse impacts, 
including adverse impacts to federally listed threatened or endangered 
species. Also, the thresholds of 25 cubic yards and \1/10\th acre are 
arbitrary and capricious. Another commenter stated that NWP 18 should 
be modified to allow the Corps District Engineer to waive the 25 cubic 
yard limitation when the aquatic resource impacts would remain minimal 
or when it is environmentally advantageous and efficient to allow the 
discharge of additional material as a single project and direct 
mitigation to a watershed based mitigation bank.
    We believe that the minor nature of these types of small discharge 
activities authorized by this NWP will be similar in nature. Further, 
we believe that normally these activities will have no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively. However, Division and District Engineers will condition 
such activities where necessary to ensure that these activities will 
have no more than minimal adverse effects on the aquatic environment, 
individually and cumulatively. While we believe that the small quantity 
limits are necessary to ensure that on a national basis that the 
adverse effect on the aquatic environment will be no more than minimal 
individually and cumulatively, we also recognize that in some areas and 
in some situations that larger quantities would also have no more than 
minimal individually and cumulatively. In these situations the Corps 
Divisions and districts may issue, after notice and comment, regional 
general permits for larger quantity limits. General Condition 11 
ensures that the activity will comply with the Endangered Species Act. 
The nationwide permit is reissued without change.
    19. Minor Dredging. There were no changes proposed to this 
nationwide permit. One commenter said that NWP 19 should be withdrawn 
as it is too broad for projects to be considered ``similar in nature'', 
or to be able to determine that the various projects, when considered 
individually or cumulatively, will result in minimal adverse 
environmental effects. The permit category has the potential for 
catastrophic secondary indirect, and cumulative adverse impacts, 
including adverse impacts to federally listed threatened or endangered 
species. Also, the thresholds of 25 cubic yards is arbitrary and 
capricious.
    We believe that the minor nature of these types of small dredging 
activities authorized by this NWP will be similar in nature. Further, 
we believe that normally these activities will have no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively. However, Division and District Engineers will condition 
such activities where necessary to ensure that these activities will 
have no more than minimal adverse effects on the aquatic environment, 
individually and cumulatively. Also these activities do not require a 
permit under section 404 of the Clean Water Act if they result in only 
incidental fallback (see 33 CFR 323.2 (d)). While we believe that the 
small quantity limits are necessary to ensure on a national basis that 
the adverse effects on the aquatic environment will be no more than 
minimal individually and cumulatively, we also recognize that in some 
areas and in some situations that larger quantities would also have no 
more than minimal adverse effects, individually and cumulatively. In 
these situations the Corps Divisions and districts may issue, after 
notice and comment, regional general permits for larger quantity 
limits. General Condition 11 ensures that the activity will comply with 
the Endangered Species Act. The nationwide permit is reissued without 
change.
    20. Oil Spill Cleanup. There were no changes proposed to this 
nationwide permit. One commenter suggested that NWP 20 should be 
withdrawn as it is too broad for projects to be considered ``similar in 
nature'', or to be able to determine that the various projects, when 
considered individually or cumulatively, will result in minimal adverse 
environmental effects. The permit category is a prime example of the 
secondary, indirect, and cumulative adverse impacts, including adverse 
impacts to federally listed threatened or endangered species in 
locations beyond the location of the spill which could result from 
activities authorized under NWP 8.
    We believe that the minor nature of these types of small discharge 
activities authorized by this NWP will ensure that they are similar in 
nature. Further, we believe that normally these activities will have no 
more than minimal adverse effects on the aquatic environment, 
individually and cumulatively. However, Division and District Engineers 
will condition such activities where necessary to ensure that these 
activities will have no more than minimal adverse effects on the 
aquatic environment, individually and cumulatively. This NWP only 
addresses the need to clean up oil spills regardless of the source of 
the spill and only when the clean up involves a discharge of dredged or 
fill material. The effects of the oil spill itself will be considered 
by the lead Federal or state agency involved in the clean up exercise. 
General Condition 11 ensures that the activity will comply with the 
Endangered Species Act. The nationwide permit is reissued without 
change.
    21. Surface Coal Mining Activities. The Corps proposed two changes 
to this NWP to ensure the proper focus of the NWP and to make certain 
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 
proposed to require a specific determination by the District Engineer 
on a case-by-case basis that the proposed activity complies with the 
terms and conditions of this NWP and that adverse effects to the 
aquatic environment are minimal both individually and cumulatively 
after consideration of any required mitigation before any project can 
be authorized. Second, the Corps proposed 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.

Definition of Fill and Waste

    Two commenters stated that the Corps issuance of NWP 21 to 
authorize valley

[[Page 2039]]

fills is illegal in that the Corps current definition of fill 
specifically precludes pollutants discharged into the water primarily 
to dispose of waste, as that activity is regulated by EPA under section 
402 of the Clean Water Act. (33 CFR section 323.2(e)). One of these 
commenters quoted from the Bragg v. Robertson decision where the 4th 
District Court, in ruling upon certain claims against the State under 
SMCRA, stated in dicta that the overburden or excess spoil was a 
pollutant and waste material and not fill material subject to Corps 
authority under section 404 of the CWA when it is discharged into 
waters of the U.S. for the primary purpose of waste disposal. The other 
commenter added that even if the Corps had jurisdiction to issue 
permits for valley fills composed of mining spoils under the April 2000 
proposed rule, to amend the definition of ``fill material'', it would 
not have jurisdiction to authorize the discharge of coal processing 
waste into refuse impoundments under Section 404. In addition, the 
commenter asserted that even if the Corps finalizes the proposed rule 
regarding the definition of fill, it must, under NEPA, perform an EIS 
before implementing the rule. Because this has not been done and the 
current rule prohibits fills composed of waste material, the commenter 
claimed NWP 21 is inapplicable to authorize the placement of mining 
spoil or coal refuse in waters of the U.S.
    Another commenter added that the final notice reissuing NWPs must 
clearly and unambiguously prohibit placement of coal processing wastes 
and underground development wastes in ``coal waste dams'' or ``tailings 
piles'' into waters of the U.S., and must further prohibit the 
placement of coal mine ``spoil'' material in such waters as ``waste 
disposal'' unless the final design of the valley fill structure is 
demonstrated to be necessary to support the approved post-mining land 
use and is thus placed for a beneficial purpose.
    Definition of Fill Rule: 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 (65 FR 21292, April 20, 2001). 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.
    Among other things the proposed rule would clarify that placement 
of excess coal mining overburden, resulting from mountaintop mining/
reclamation activities, in waters of the U.S. (valley fills) is 
considered a discharge of fill material. The agencies are reviewing 
approximately seventeen thousand comments received in response to the 
proposed rule and are in the process of drafting the final rule. NWP 21 
is available to authorize discharges of fill material meeting the terms 
of the permit. Issues related to the applicability of Clean Water Act 
section 404 to ``coal waste dams,'' ``tailings piles''' coal mine 
``spoil'' and coal slurry impoundments turn on the jurisdictional 
question of what constitutes fill material, an issue that will be 
clarified in that rulemaking. Because the proposed nationwide permits 
do not seek to resolve those questions, these comments are outside the 
scope of this proceeding. With regard to valley fills, in a memorandum 
dated September 26, 2001, the Corps directed all involved field 
elements to inform the public and initiate regulating valley fills in 
all states, pursuant to section 404 of the CWA. The memorandum attaches 
a legal analysis that concludes that Corps regulation of valley fills 
may be pursued under the current regulations. The Corps decided to 
regulate valley fills because of the need for consistent administration 
of the Regulatory Program, assuring equity for the public. In addition, 
the Corps will require appropriate compensatory mitigation, as 
necessary, for the loss of aquatic resources.
    Bragg Settlement Agreement: On December 23, 1998, a settlement 
agreement was signed to end litigation against the federal government 
that challenged whether applicable federal programs were being 
appropriately applied to regulate valley fills in West Virginia (Bragg 
v. Robertson, Civil Action No. 2:98-0636 (S.D. W.Va)). The Court 
approved the agreement on June 17, 1999 (54F.Supp. 2d 653). The 
settlement agreement was facilitated, in part, by the Army establishing 
that the Corps would regulate valley fills in West Virginia pursuant to 
section 404 of the CWA. While on appeal, the Fourth Circuit Court of 
Appeals vacated a subsequent decision issued by the District Court 
addressing Surface Mining Control and Reclamation Act (SMCRA) claims in 
the case (see 248 F.3d 275); that Fourth Circuit 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 stated 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 would generally be 
considered to have more than minimal adverse effects on waters of the 
U.S. Consistent with the terms of this agreement, to which the Corps is 
a party, the Corps will generally use its discretionary authority to 
require standard permits for coal mining activities in West Virginia 
where the material would bury a stream segment draining a watershed of 
250 acres or more. 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 applicability.
    Further, we are gathering data and, in conjunction with other 
federal agencies, are preparing a programmatic mountaintop mining/
valley fill (MTM/VF) EIS to better understand the environmental effects 
of mountaintop mining and valley fills, as well as programmatic changes 
that may be necessary to address those impacts. The Corps will 
reevaluate NWP21 when the mountain top mining EIS is completed. The 
Corps intends to use the results of this EIS and all other information 
that may be available at that time, including information resulting 
from individual verification of all NWP 21 projects as required under 
the revised terms and conditions, to make sure that NWP 21 results in 
no more than minimal impacts (site-specifically and cumulatively) on 
the aquatic environment. Therefore, at this time we are not adding 
additional conditions from the Bragg agreement to the NWP itself. 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 settlement agreement in West Virginia 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 will have no 
more than minimal adverse effects on the aquatic environment.

[[Page 2040]]

EIS/EA for NWP

    A few commenters stated that the Corps 1996 EA did not adequately 
account for the increasing size and scale of valley fills and their 
impacts. One of these commenters suggested that this NWP should not be 
reauthorized until the new EA or EIS is completed which may find that 
impacts due to this nationwide are more than minimal.
    Three commenters stated that reissuance of NWP 21 was inconsistent 
with the Corps obligation under NEPA, since the Draft Nationwide Permit 
Program Programmatic EIS (PEIS) dated July, 2001, does not adequately 
address the effects of eliminating NWP 21 and other NWPs which have 
been controversial due to their substantial environmental effects.
    The PEIS addressed the effects of different permit processing 
scenarios (standard, regional general and nationwide general permits) 
on the Corps permit program in terms of workload, cost and protection 
for the environment. It did not include alternatives changing only some 
nationwide permits to standard permits or regional general permits or 
any other combination of specific NWPs permits. This combining of 
different scenarios would have resulted in a very large number of 
alternatives to analyze.
    One commenter stated that the PEIS fails to fully incorporate and 
analyze the substantial body of scientific knowledge and information 
that has been amassed as part of the aforementioned MTM/VF EIS relative 
to the effects of mountain removal mining and valley fill construction 
on Appalachian streams and rivers. This commenter requests that all 
available technical and scientific studies, and the draft MTM/VF EIS be 
incorporated into the DPEIS and that a supplemental PEIS be prepared 
concerning the proposal to reissue NWP 21, which includes the 
alternative of reissuance of other nationwide permits with the 
exception of NWP 21 and other controversial NWPs.
    The MTM/VF EIS will not be completed for some time. However, the 
Corps fully intends to use all relevant information, including the 
results of this EIS, to make sure that NWP 21 results in no more than 
minimal impacts (site-specifically and cumulatively) on the aquatic 
environment.
    One commenter noted that the Corps is currently involved in an EIS 
limited to two states, Kentucky and West Virginia, for a subset of the 
activities authorized under NWP 21 and which will not determine the 
effects of all activities associated with this permit. This commenter 
states that the Corps must perform an EIS on all impacts associated 
with NWP 21 including, but not limited to, mountaintop removal valley 
fills, contour mining valley fills, and coal refuse discharges. They 
also state that particularly, given the concentrated use of NWP 21 in 
only a few districts, it is clear that the Corps permitting decisions 
have had impacts exceeding both the ``significant'' standard under NEPA 
and the ``minimal adverse effects'' standard under Section 404(e).
    As previously stated, the Corps is committed to ensuring that NWP 
21 does not result in more than minimal adverse effects to the aquatic 
environment. We believe that the changes proposed and adopted will 
ensure minimal adverse effects on the aquatic environment. We will 
review the additional information provided within the MTM/VF EIS, upon 
its completion, to be sure that this continues to be the case.

Scope of Analysis

    One commenter opposed reissuance of NWP 21 based on this activity's 
non-water dependency and associated secondary/cumulative impacts such 
as acid rain from burning of coal and its affect on the human 
environment. This commenter is concerned over the adverse impacts of 
acid deposition on the human environment. Another commenter claims that 
coalfield communities near these operations are dwindling as large out 
of state coal corporations employ fewer and fewer workers and severe 
flooding in the area caused by the mining activities makes it extremely 
difficult to live near these mining operations.
    These impacts are outside of the Corps scope of analysis pursuant 
to the National Environmental Policy Act. The Corps evaluation of 
valley fills is focused on impacts to aquatic resources. Overall mining 
is permitted under separate Federal laws, SMCRA.
    Another commenter, also concerned with secondary and indirect 
impacts of coal mining activities, objected to the statement in the 
preamble that the ``Corps review is limited to the direct and indirect, 
and cumulative effects of fills in waters of the U.S''. This commenter 
states that the scope of analysis should extend beyond the effects of 
fills in waters of the U.S. However, another commenter not only agreed 
that the scope of analysis should be limited to the direct and indirect 
and cumulative effects of only the fills in waters of the U.S. but also 
that wording should be included in the permit language to inform all 
interested parties that the Corps would not be considering the impacts 
of the actual coal mining operation itself, especially one occurring on 
a mountain top.
    Impacts associated with surface coal mining and reclamation 
operations are appropriately addressed by the U.S. Department of the 
Interior Office of Surface Mining or the applicable state agency, if 
program delegation has occurred, pursuant to the Surface Mining Control 
and Reclamation Act. Under these circumstances, the Corps NEPA 
implementing regulations clearly restrict the Corps scope of analysis 
to impacts to aquatic resources. We concur with the commenter that the 
scope of analysis should be limited to only impacts to the aquatic 
environment.

Duplication/ Executive Order 13212

    One commenter was opposed to any change to NWP 21 because of 
possible duplication of the intensive review performed by the Office of 
Surface Mining in coordination with the Corps and other state and 
Federal agencies related to approval of reclamation plans for surface 
coal mining activities. This commenter is concerned that such 
duplication now proposed will complicate the approval process for mine 
operations and make approval more cumbersome and bureaucratic resulting 
in unnecessary duplication and delays for approval of energy related 
projects which would be in direct conflict with Executive Order 13212 
Actions to Expedite Energy Related Projects. One commenter discussed at 
great lengths the implication of EO 13212 which was signed on May 18, 
2001. The commenter asserted coal reserves serve an indispensable role 
in the nation's energy equation and are used primarily for generating 
the nation's electricity, and that a reliable general permit program is 
vital to a coal producer's ability to meet the nation's growing coal 
needs. This commenter is concerned that the proposed changes to this 
NWP will cause delays and unnecessary duplication. One commenter 
suggested that all proposed projects falling under this NWP be 
coordinated with the SMCRA and should consider any required SMCRA 
mitigation when making its determinations regarding appropriate 
mitigation under Section 404. One commenter suggested that the Corps 
utilize the SMCRA environmental protection, mitigation and findings 
standards as a general basis for determining that surface coal mining 
operations regulated by SMCRA will have minimal impact and meet NWP 21 
applicability standards. By using SMCRA standards when making 
determinations of applicability to NWP

[[Page 2041]]

21, the commenter indicated the Corps review can be expedited 
consistent with EO 13212. Further, the commenter indicated that under 
SMCRA, the DMME is prohibited from issuing a coal surface mining permit 
unless the agency first finds, in writing, that the proposed mining 
operation will minimize impacts to the hydrologic balance within the 
permit area and will not result in material damage to the hydrologic 
balance outside the permit area.
    As stated above, the Corps has determined that the SMCRA process 
does not currently adequately address impacts to the aquatic 
environment as required under Section 404, therefore this NWP does not 
duplicate the mining permit process but does rely on it for help in the 
analysis. We encourage Corps Districts to work with state and Federal 
mining agencies to coordinate early in the process so that the SMCRA 
permit includes adequate mitigation to offset impacts to the aquatic 
environment.
    Two commenters agreed with the proposed changes in this NWP because 
of the differing goals of the SMCRA/DMME and the CWA, specifically 
concerning compensatory mitigation. The commenters indicated that while 
most NPDES permits include conditions to protect against stream 
impacts, they do not often address wetland impacts. In addition, 
according to one commenter, there are no clear standards for stream 
replacement, leading to poor reconstruction techniques with little or 
no restoration of habitat function.
    The Corps is working on stream functional assessment protocols to 
help in identifying the functions lost through impacts and the 
functions gained or enhanced through mitigation.
    Two commenters suggested that NWP 21 should be significantly 
restricted or eliminated, since it wrongfully assumes the state or 
federal regulatory agency under SMCRA is engaging in a process 
comparable to section 404 of the CWA and the 404(b)(1) Guidelines of 
assuring avoidance and minimization of impacts on special aquatic sites 
and other waters of the US, when in fact no other agency engages in 
such review.
    The Corps has not assumed that other state or Federal agencies are 
engaging in a comparable Section 404 type process. In accordance with 
the Section 404(b)(1) Guidelines, analysis of offsite alternatives is 
not required in conjunction with general permits.
    A few commenters were opposed to the requirement for a written 
determination of compliance without a time clock, i.e. 45 days, for the 
Corps to respond or the applicant can begin work. One of these 
commenters is concerned that under the proposed NWP, the applicant 
could wait weeks or months until he receives express authorization from 
the district to begin which would result in delays and additional paper 
exercise for a project deemed to be of minimal impact. Another scenario 
a commenter provided would be to wait months just to be told the 
project does not qualify for NWP 21 and that a standard permit would be 
required. This commenter suggests that the Corps could abuse the lack 
of time constraints when it cannot meet its own deadlines. A few 
commenters suggested that the Corps rely solely on the notification 
requirement for determining whether or not any specific activity 
complies with the terms and conditions of the NWP within the 45 day 
time limit.
    Under the current regulatory program, all coal mine operators must 
notify the Corps which may involve agency coordination subject to a 45 
day time clock to submit comments to the Corps. Under the proposed NWP, 
the applicant must wait before initiating construction until he 
receives express authorization from the District Engineer. Corps 
districts will make decisions in a timely matter. We believe that a 
careful case specific minimal impacts determination is necessary for 
this NWP, but it may sometimes take more than 45 days. Because of the 
potential for more than minimal adverse effects with these projects 
this approach is necessary.

Impacts from NWP 21

    A majority of the commenters opposed the reissuance of NWP 21 
because of potential impacts. Specifically, the major concern stated by 
most commenters was that the mountaintop removal mining and disposing 
of the overburden in valleys (valley fills) would result in the burying 
of streams thereby disturbing the natural processes and water quality 
in the entire watershed and result in the permanent loss of habitat. 
One commenter stated concern that this NWP activity will displace 
Federally protected threatened and endangered species. Another 
commenter raised concerns about impacts to water supplies used for 
drinking and recreation from the valley fills.
    This NWP requires compliance with all of the general conditions for 
the nationwide permits. One commenter pointed out that in one state 
alone 15-25% of the mountains have been leveled, that the overburden 
from these mines placed in ``valley fills'' have destroyed more than 
1,000 miles of streams, and that one mine can destroy 10 square miles 
of mountain and fill as many as 12 stream valleys. This commenter 
concludes that these kinds of impacts cannot be considered ``minimal in 
effect'' to qualify for a NWP. One commenter stated that the ``field 
assessment'' of the nationwide permit program provided an inadequate 
analytical basis for documenting the extent and severity of aquatic and 
terrestrial impacts of the implementation of NWP 21.
    One commenter contends that the Corps has admitted to its inability 
to assess direct, indirect, and cumulative impacts associated with 
specific coal mining projects. Therefore, the Corps cannot be in a 
position to state whether any application for an authorization under 
NWP 21 would or would not have more than minimal adverse impacts, 
either individually or cumulatively.
    Another commenter stated that a draft EPA finding indicates that 
the ``impacts of mountaintop mining and valley fill activities in 
eastern Kentucky were evident based on stream biological and habitat 
indicators. Mining related sites generally had higher conductivity, 
greater sediment deposition, smaller particle sizes, and a decrease in 
pollution sensitive macoinvertebrates * * * in turn, these streams and 
rivers may support fewer fish and other taxa which are recreationally 
or commercially important.''
    These studies are draft documents and have not been finalized or 
the conclusions agreed upon by the cooperating agencies.
    One commenter stated that the Corps has ignored OSM studies and are 
not considering effect of valley fills on flooding. However, another 
comment challenged the Corps statement under notification that the 
Corps is ``discouraging extensive channelizing or relocation of stream 
beds because of potential adverse effects on the stream and the 
potential to intensify downstream flooding''. This commenter contended 
that the Corps does not have an adequate basis for this statement 
concerning downstream flooding and requests that it be taken out.
    The basis for this conclusion is that whether increased downstream 
flooding will occur is a site specific circumstance based on downstream 
channel capacity and geometry coupled with the influence of man induced 
alternations to channels and flood plains. These issues will be 
evaluated during the case specific minimal effects determination.
    This commenter added that available studies document lower flood 
rates in areas of surface mining activities than in similar unmined 
watersheds and that some mining activities result in alteration to 
landscape that can provide

[[Page 2042]]

significant runoff retention. And, for example, the commenter added, 
open pits and drainage control structures can provide runoff retention 
and longer travel times for overland flow and increased infiltration 
provided by backfills can also retard or lessen peak flows.
    The preliminary draft MMEIS, which includes an assessment of 
scientific studies related to providing a better understanding of 
flooding potential related to mountaintop mining, concluded that no 
corroborating evidence exists to support the allegations that surface 
mining operations increased flooding potential downstream.
    Two commenters questioned the Corps proposal of this NWP and the 
determination that it meets the requirement that the adverse 
environmental impacts are individually and cumulatively minimal while 
admitting (in the proposed regulation) that it is still gathering data 
to better understand the effects of valley fills on the aquatic 
environment.
    The Corps is continually gathering data on all its nationwide 
general permits to ensure that the effects of the program on the 
aquatic environment are minimal, both individually and cumulatively. 
The changes in procedures proposed and adopted here will ensure minimal 
effects through case specific review and mitigation.

Thresholds for NWP 21

    A few of these commenters suggested reissuing this NWP but 
precluding its use for mining operations involving mountain-top 
removal.
    We disagree, this permit is designed for use by mountaintop mining 
operations as well as other surface coal mining activities.
    Several commenters added that since this nationwide has no size/
acreage limits, extensive linear feet of streams could be impacted. Two 
commenters recommended using the same stream threshold limitations as 
stated in NWP 39, 40, 42, and 43 (300-foot limitation) for consistency 
purposes and since stream impacts from filling should be evaluated the 
same regardless of the activity involved.
    The 300 linear foot limit is retained for NWPs 39, 40, 42, and 43, 
however justification, on a case-by-case basis, can be made to allow 
additional linear impacts for intermittent streams. The Corps believes 
that coal mining is different from activities authorized under NWPs 39, 
40, 42 and 43 in that coal mining projects are reviewed for 
environmental impacts under several other authorities (SMCRA, CWA 
section 402). For this reason, the determination of whether a project 
will result in more than minimal adverse effects is best made on a 
case-by case basis.
    Two commenters cite from the Draft PEIS that in 2000 alone, 13,907 
acres of impacts to streams and wetlands were authorized under NWP 21 
making up 72% of all NWP impacts for that year and one of these 
commenters recommends protective measures and/or environmental 
thresholds due to the potential losses. One of these applications 
resulted in the direct filling of over six miles of streams and 
indirect impacts to an additional three miles with no data to suggest 
that these impacts were minimal. For this reason, this commenter and 
others have suggested including the provisions adopted in the Bragg v. 
Robertson settlement of a 250-acre watershed threshold while waiting 
the findings of the EIS process to determine the appropriateness of 
that threshold limit. They believe the 250 acre standard would provide 
better protection than no threshold at all, as is currently the case. 
Two commenters suggested that if NWP 21 must be reissued, it should be 
conditioned such that valley fill projects affecting intermittent and/
or perennial streams will be ineligible for authorization and would be 
evaluated as standard permits. They state that this would be consistent 
with the Corps July 2000 guidance to the field, which provides that the 
250 acre standard should be used in evaluating all PCN for NWP 21. 
However, two commenters support the Corps decision not to include the 
250 acre threshold because it is temporary in nature and limited only 
to West Virginia. Further, they asserted that limit was not based upon 
any scientific analysis but rather a product of an agreement arrived at 
in an arbitrary way, having no correlation with environmental 
protection. These commenters also cited projects with a 500 acre 
watershed, which improved the pre-mining conditions. One commenter 
suggested that if NWP 21 must be reissued, it should be conditioned 
such that valley fill projects affecting intermittent and/or perennial 
streams will be ineligible for authorization and be evaluated as 
standard permits.
    The Corps believes that a scientific basis for the 250 acre limit 
designated in the Bragg v. Robertson settlement has not been adequately 
established and the limit may not be appropriate for all situations. 
High quality streams exist above this point on the landscape and lower 
quality streams exist below this point. We believe it is better for the 
environment to look at specific sites and watersheds and make quality 
determinations than to try and fit all watersheds into a rigid pre-
determined categorization that may or may not reflect the site specific 
aquatic conditions. The Corps is further concerned that universal use 
of the 250 acre limit could encourage a proliferation of smaller valley 
fills in lieu of fewer larger fills, and that this may not be the best 
outcome for the aquatic environment. The Corps has identified a data 
error in the PEIS. The 13,907 acres of impact actually were less that 
50 acres.
    One commenter suggested that environmental thresholds be 
established if not with this authorization, definitely with the next 
and that these thresholds be determined through a public review 
process.
    Thresholds may be added by individual Districts as regional 
conditions for this permit through the public review process. In 
addition, we will review this NWP when the MTM/VF EIS is complete along 
with all other relevant information and will develop criteria or 
propose any changes that may be needed.

Mitigation

    Many of those commenters objecting to the reissuance of NWP 21 
stated that the mitigation, even with Corps review and approval, could 
not sufficiently compensate for these impacts and therefore this NWP 
would be a violation of the Clean Water Act requirements that general 
permits result in only minimal adverse impacts to the aquatic 
environment. One of these commenters stated that stream restoration 
experts have concluded that it is not possible to recreate streams on 
most mined areas, therefore, the loss of these stream miles and the 
functions they provide to the aquatic ecosystems downstream is a 
permanent loss and, for the purposes of a Section 404 impact 
assessment, the stream losses cannot be adequately compensated. One 
commenter, although supporting the requirement of mitigation beyond 
what the State requires under the project's coal mining permit, still 
opposes NWP 21 because it illegally jumps from avoidance and past 
minimization directly to mitigation. This commenter also voiced concern 
over a lack of alternative analysis for placement of fill into waters 
of U.S. by any state or Federal agency for these proposed valley fills. 
Another commenter recommended that any mitigation plan be coordinated 
and approved by all involved regulatory and commenting resource 
agencies prior to the NWP approval.

[[Page 2043]]

    We feel we are avoiding and minimizing impacts to the extent 
practicable and that adequate mitigation, especially in the form of 
enhancement or rehabilitation of existing streams through activities 
such as stabilizing old mined sites to reduce stream sedimentation and 
reduction in acidic water releases, can be used to determine that a 
project has minimal impacts, both individually and cumulatively, on the 
aquatic environment. These activities can result in a substantial 
improvement in downstream water quality and aquatic habitat within a 
watershed.
    A few commenters agreed with the proposed changes to NWP 21 because 
of the varying goals of the SMCRA and the CWA program and the wetland 
mitigation plan requirement. One commenter stated that the review 
proposed would be valuable in ensuring the requirement of equity 
between coal mining activities and other wetland impacting activities, 
and indicated that while most NPDES permits include conditions to 
protect against stream impacts, they do not usually address wetland 
impacts. In addition, there are no clear standards for stream 
replacement, leading to poor reconstruction techniques with little or 
no restoration of habitat functions.
    As stated above, the Corps is in the process of designing stream 
function protocols to aid in evaluating mitigation projects.
    This commenter recommends that the following language be included 
into the permit language: ``Compensatory mitigation will be required to 
offset losses of waters of the U.S., consistent with General Condition 
19''.
    We do not agree this is necessary, as General Condition 19 applies 
to all nationwide permits and does not need to be specifically repeated 
in this NWP, however, we agree with the intent of this statement.
    Two commenters suggested that at the very least, bonding of 
mitigation measures should be required in all cases. One of these 
commenters argued that performance bonds under 30 U.S.C. 1269 should 
not be used by the Section 404 program because of the limitations 
imposed on these bonds. For instance, neither state regulatory 
authorities nor OSM have authority to impose bond liabilities on 
regulated mines beyond those specified in the mining law which are 
established by law as that amount needed to assure completion of the 
reclamation plan required under 30 U.S.C. 1268 and not section 404 of 
the CWA. Also, if there was a violation of the Corps mitigation 
conditions, the Corps would not have authority to direct the 
expenditure of those funds.
    Requiring a bond by the Corps in certain cases is consistent with 
existing policy and the Corps will continue to do so as it deems 
appropriate.

General Condition 4

    One commenter stated that the purpose of valley fills is not to 
impound water but rather to dispose of overburden or waste material. 
Furthermore, the commenter asserted that a valley fill is an activity 
that completely eliminates the possibility of movement and survival of 
aquatic life. The commenter asserted the Bragg Settlement contains 
nothing that even remotely purports to modify any Corps regulation * * 
*. The Corps must still comply with these and all other statutory and 
regulatory requirements''. The commenter indicated that completely 
filling streams by valley filling affects the necessary life movements 
of all aquatic life that must move within or between those streams. 
Furthermore, the commenter asserted, valley filling violates the 
General Condition because not only does it preclude movement of 
species, but destroys the species themselves.
    Generally, proposed projects are located at the upper limits of the 
watersheds and are not interfering with aquatic species migration.
    It is our position that this NWP is useful in expediting the 
processing of permits for some surface coal mining operations provided 
that adequate compensatory mitigation accompanies the activity so that 
there is an overall net improvement in functions of the aquatic 
environment. Our scope of analysis will continue to be limited to the 
impacts to the aquatic environment. The locations of the mines are 
dependent on location of the coal seams.
    The existing permit relies primarily on any state-required 
mitigation under SMCRA to address impacts to the aquatic environment. 
The Corps has determined that this is not appropriate, as the 
requirements of SMCRA differ from those of the CWA and reliance on 
SMCRA authorization may not result in adequate mitigation for adverse 
impacts to the aquatic environment. 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 U.S. 
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. This permit will be 
reissued as proposed.
    22. Removal of Vessels. There were no changes proposed to this 
nationwide permit. There were no comments on this nationwide permit. 
The nationwide permit is reissued without change.
    23. Approved Categorical Exclusions. There were no changes proposed 
to this nationwide permit. One commenter indicated that although the 
Office of the Chief of Engineers may have been furnished notice of a 
list of activities, and concurred, a list of activities did not appear 
to have been included in the referenced August 9, 2001, Federal 
Register notice on which the reissuance of the NWP Program will be 
based. The commenter further stated that the absence of this critical 
information mirrors the Corps piece-mealing approach to Regulatory 
implementation of the CWA that is found in the issuance of Corps 
permits in the southeastern U.S. The commenter also stated that because 
of the lack of this information, the public is unable to determine 
whether new information supporting reversal may have become available 
since the decisions that these activities do not have a significant 
effect on the human environment. Another commenter stated that this 
permit illegally delegates to other federal agencies the ability to 
decide whether their projects will result in more than minimal impacts. 
The permit effectively has no ceiling on individual or cumulative 
impacts and covers a broad range of activities. An additional commenter 
suggested that the NWP 23 activities listed are extremely dissimilar in 
nature and impact. It is not possible for the agencies to have made a 
reasonable evaluation of the cumulative impacts of all of the 
activities in this permit.
    When the Corps considers whether an agency's categorical exclusions 
have no more than minimal adverse effects on the aquatic environment 
and whether they could be authorized by this NWP, the Corps first seeks 
public comment and publishes the proposal in the Federal Register. The 
Corps then determines whether the agencies categorical exclusions have 
no more than minimal adverse effects on the aquatic environment. The 
Corps has not approved all agency categorical exclusions, has added 
further conditions and has required pre-

[[Page 2044]]

construction notifications to ensure that there are no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively. Furthermore, Corps districts and divisions have the 
discretionary authority to require regional conditions, case-specific 
conditions or individual permits where the adverse effects may be more 
than minimal.
    One commenter indicated that all projects requiring stream 
channelization should be evaluated through the Individual Permit 
process. Another commenter suggested projects affecting more than \1/
10\th acre of wetland should require a pre-construction notification to 
the Corps and those affecting \1/3\ acre should require an Individual 
Permit. A commenter recommended all bridge projects that are not longer 
than 1.5 times bankfull width should be elevated to an individual 
permit process.
    General condition 21 contains provisions to minimize adverse 
impacts related to water movement, including channelization and passage 
of high water flows. When reviewing an agency's categorical exclusion 
for approval under this NWP the Corps considers the need for a pre-
construction notification. We have required a pre-construction 
notification where we believe that it was necessary to ensure that the 
adverse effects would be no more than minimal, and we have required the 
individual permit process, where needed. The nationwide permit is 
reissued without change.
    24. State Administered Section 404 Programs. There were no changes 
proposed to this nationwide permit. One commenter stated that 
applicants will find it difficult to keep up with a complex matrix of 
non-uniform approaches to regulating water bodies if states across the 
country run their section 404 programs differently.
    The Corps recognizes that nationally there may be different 
approaches by the states toward regulating section 404 discharges into 
those waters. However, the Corps will not change the way the states 
regulate in those waters by requiring a Corps individual permit 
process. Currently, this NWP is only applicable in the States of 
Michigan and New Jersey, which have assumed the Clean Water Act section 
404 authority in Navigable Waters of the United States based on 
historic use only. In those waters, which are subject to section 10 of 
the Rivers and Harbors Act based solely on the historic use for 
interstate waterborne commerce, the state administers the Section 404 
program while the Corps has a permit role under Section 10. Those 
waters do not have current nor are they susceptible to use for water 
borne commerce. The Corps believes that the states are considering and 
adequately addressing the environmental impacts of these projects. The 
Corps further believes that there are no impacts affecting waterborne 
commerce needing Section 10 review. Therefore, there is no need to 
process an individual permit for these activities. The nationwide 
permit is reissued without change.
    25. Structural Discharges. There were no changes proposed to this 
nationwide permit. There were no comments on this nationwide permit. 
The nationwide permit is reissued without change.
    26. [Reserved] One commenter indicated that, if reissued, NWP 26 
must be modified to significantly lower the threshold of activities not 
requiring an individual permit.
    There are no plans to reissue NWP 26. This NWP expired on June 7, 
2000. The number 26 is being reserved to avoid the need to renumber all 
of the subsequent NWPs. We believe that renumbering NWPs 27 through 44 
would be confusing and unnecessary.
    27. Wetland and Riparian Restoration and Creation Activities: In 
the August 9, 2001, Federal Register notice, we proposed to modify this 
NWP by combining two categories of land (``any Federal land'' and ``any 
private or public land'') into a single category: ``any other public, 
private, or tribal lands''. Therefore, there would be three categories 
of land that would be eligible for NWP 27 activities, instead of four 
categories. This change will not affect how or if any activities will 
be authorized by this NWP.
    Many commenters supported the Corps proposal to combine the four 
categories of lands into three categories. A commenter recommended 
limiting the use of this NWP to activities conducted or sponsored by 
Federal or state agencies. One commenter suggested adding the National 
Marine Fisheries Service and the National Ocean Service to paragraph 
(a)(1). This commenter also recommended adding ``the construction of 
oyster habitat over unvegetated bottom in tidal waters'' to the list of 
examples of activities authorized by this permit. This commenter said 
that these changes would result in a reduction in Corps workload, and 
authorize activities conducted under National Marine Fisheries Service 
and National Ocean Service restoration grant programs.
    To simplify the descriptions of the types of lands eligible for 
this NWP, we are combining paragraphs (a)(2) and (a)(4) of NWP 27 to 
read as ``any other public, private, or tribal land'' in paragraph 
(a)(3). The previous text of paragraph (a)(3) has been moved to 
paragraph (a)(2).
    We do not agree that this NWP should be limited to activities 
conducted or sponsored by Federal or state agencies, because such a 
restriction would affect the ability of the Corps to effectively 
authorize aquatic habitat restoration or creation (establishment) 
activities conducted by individuals, non-government organizations, or 
local governments. We have added ``the construction of oyster habitat 
over unvegetated bottom in tidal waters'' to the list of examples of 
activities authorized by this NWP. Since the construction of oyster 
habitat in tidal waters could potentially affect navigation, it is 
important to consider General Condition 1. The construction of oyster 
habitat in tidal waters cannot have a more than minimal adverse effect 
on navigation.
    We have modified paragraph (a)(1) to include restoration activities 
undertaken through the programs of the National Marine Fisheries 
Service and the National Ocean Service. In addition, we have modified 
the text of this NWP by adding the phrase `` * * *, to the extent that 
a Corps permit is required, * * * '' after the phrase ``Activities 
authorized by this NWP include * * *''.
    One commenter stated that, even though activities authorized by 
permit would result in an increase of wetland habitat, NWP 27 should 
have an upper limit to require more detailed review of restoration and 
creation projects that involve larger impacts to wetlands. Another 
commenter said that an acreage limit is needed for this NWP because 
there are inadequate assurances that it authorizes only activities with 
minimal adverse environmental effects. This commenter suggested 
imposing a 250 linear foot limit and a \1/4\ acre limit on wetland 
impacts for restoration activities and a five acre limit for wetland 
enhancement projects. This commenter also recommended requiring 
notification and agency coordination for all activities undertaken by 
private individuals that impact wetlands or more than 100 linear feet 
of stream, with the notification including documentation of the 
hydrologic analyses used to design the project. Another commenter said 
that the ``wetland enhancement, restoration or creation agreement'' 
described in paragraph (a)(1) should be reviewed and approved by the 
Corps and other resource agencies and each agreement should have 
enforceable conditions.
    We do not agree that acreage or linear limits are necessary for 
this NWP, since it authorizes activities that restore, enhance, or 
create aquatic habitats. The

[[Page 2045]]

terms of this NWP, as well as the notification requirements described 
in paragraph (b), will ensure that the activities authorized by this 
NWP result only in minimal adverse effects on the aquatic environment. 
District engineers will review pre-construction notifications for 
activities on public and private land not conducted under the terms of 
paragraphs (a)(1) or (a)(2) and determine whether those activities will 
result in minimal adverse effects on the aquatic environment. Agency 
coordination is not necessary for NWP 27 activities undertaken by 
private individuals because Corps personnel have the expertise 
necessary to evaluate proposed NWP 27 activities. We do not believe 
that it is necessary for the Corps and other resource agencies to 
review agreements between landowners and the U.S. Fish and Wildlife 
Service or Natural Resources Conservation Service. We concur that these 
agreements should have enforceable conditions.
    One commenter suggested adding the phrase ``* * * and the planting 
of appropriate wetland species'' after the phrase ``* * * activities 
needed to reestablish vegetation * * *'' and changing ``* * * 
mechanized land clearing to remove undesirable vegetation * * *'' to 
``* * * mechanized land clearing to remove non-native invasive, exotic 
or nuisance vegetation * * *''.
    We concur with these recommendations and have made these changes to 
the text of the NWP.
    One commenter objected to the reissuance of this NWP, stating that 
it lacks effective oversight, especially for activities on public and 
private lands, its use has not been effectively monitored in the Corps 
regulatory database, and the terms ``restoration'' and ``enhancement'' 
are inadequately defined. To address these concerns, this commenter 
suggested that all projects must be subjected to strict, enforceable 
success criteria; all failed projects must be corrected to offset any 
adverse impacts to waters of the United States; all permitted projects 
must be overseen by a qualified restoration specialist; only those 
activities with high likelihood of success should be approved; include 
a more extensive list of activities not authorized by NWP 27; prohibit 
the use of NWP 27 to construct compensatory mitigation projects; and 
limit NWP 27 to one use per applicant per stream. One commenter said 
that this NWP should not authorize the construction of mitigation 
banks.
    As with all NWPs, the use of this NWP is monitored by each of the 
Corps districts, to ensure that it authorizes only those activities 
with individual and cumulative adverse effects on the aquatic 
environment.
    Since the publication of five new and six modified NWPs in the 
March 9, 2000, issue of the Federal Register (65 FR 12818), the terms 
``restoration'' and ``enhancement'' have been defined in the 
``Definitions'' section of the NWPs. Since that time, the Federal 
government has adopted new definitions for purposes of tracking losses 
and gains of wetlands under the previous Administration's Clean Water 
ActionPlan. The new definitions also apply to mitigation activities for 
other types of aquatic habitats. Under the new definition for 
restoration, there are two types activities: re-establishment and 
rehabilitation. Re-establishment involves the rebuilding of a former 
wetland, resulting in a net gain in wetland acres. Rehabilitation 
involves the manipulation of a degraded wetland to repair natural or 
historic functions, but does not result in a net gain in wetland acres. 
Enhancement is the manipulation of a wetland for a specific purpose, 
resulting in increases in some wetland functions and declines in other 
wetland functions, with no gain in wetland acres.
    Where strict criteria are necessary to ensure the success of stream 
or wetland restoration projects, district engineers can add special 
conditions to NWP 27 authorizations to specify success criteria. If 
those success criteria are not met, district engineers can use their 
enforcement authority to require the permittee to identify the reasons 
for failure and implement necessary remedial measures. We do not agree 
that it is necessary for activities authorized by this NWP to be 
overseen by qualified restoration specialists. The text of NWP 27 
clearly states what is not authorized by the NWP; we do not believe any 
additional clarification is necessary. Since NWP 27 authorizes 
activities that provide benefits for the aquatic environment, it would 
not be appropriate to limit the use of this NWP to one time per project 
proponent per stream channel.
    We maintain our position that NWP 27 should authorize the 
construction of compensatory mitigation sites, including mitigation 
banks, provided those sites result in net increases in aquatic resource 
functions and values. NWP 27 requires compensatory mitigation for 
impacts to waters of the United States caused by the authorized work, 
as well as notification to the district engineer in accordance with 
General Condition 13. A mitigation bank can also be authorized by NWP 
27, as long as the mitigation bank has been approved under the 1995 
Interagency Mitigation Banking Guidelines.
    One commenter recommended that the use of this permit should be 
limited to restoring streams to their historic, undegraded states to 
prevent their use as a flood control projects. Another commenter said 
that district engineers should have the authority to waive the 
prohibition against conversions of certain types of streams or natural 
wetlands to other aquatic habitat types that could provide more 
environmental benefits for local watersheds.
    NWP 27 does not authorize flood control projects. This NWP 
authorizes stream restoration activities, which may include grading 
stream banks and riparian areas so that those riparian areas are 
flooded more frequently by the streams. In other words, flood storage 
capacity may be increased by a stream restoration project, but the 
increase in flood storage capacity is not the main goal of the project. 
We do not agree that this NWP should allow flexibility to waive 
prohibitions against certain conversion activities, since conversions 
of streams, wetlands, and other waters may result in more than minimal 
adverse effects to the aquatic environment. If such conversions would 
provide net benefits for watersheds, then those activities could be 
authorized by other types of permits, including standard permits.
    A commenter suggested that NWP 27 should be modified to prohibit 
the creation of open water areas in existing wetlands and the 
relocation of existing wetlands. One commenter supported the provision 
that states this NWP does not authorize the conversion of natural 
wetlands into another aquatic use, but recommended prohibiting the 
``relocation of aquatic habitat types on the project site'' and 
prohibiting the use of riprap or other armoring material. One commenter 
said that activities authorized by this NWP should not be allowed to 
alter the basic functions and habitat of ``high quality wetlands'' and 
that all projects should have a long-term management plan with a 
binding contract between the landowner and the Federal and state fish 
and wildlife agencies, not the Natural Resources Conservation Service.
    We maintain our position that the relocation of non-tidal waters, 
including non-tidal wetlands, on the project site should be authorized 
by this NWP, provided there are net gains in aquatic resource functions 
and values. We do not agree that this NWP should prohibit the use of 
riprap because riprap contains crevices and other habitat features for 
small organisms. Other armoring materials can provide habitat

[[Page 2046]]

for aquatic organisms. The use of armoring materials for stream and 
wetland restoration activities is at the discretion of the district 
engineer. We do not agree that it is necessary to have a long-term 
management plan with a binding agreement between landowners and the 
Federal and state fish and wildlife agencies for all activities 
authorized by this NWP.
    One commenter said that some activities authorized by this NWP do 
not comply with the Clean Water Act. One example offered by this 
commenter is the conversion of waters of the United States to storm 
water treatment facilities and sewage treatment facilities, under the 
guise of restoration and mitigation. This commenter states that NWP 27 
should be revoked because the activities authorized by this NWP are not 
similar in nature and it is unreasonable to conclude that all of the 
cumulative adverse impacts on the human environment could be considered 
for such a category of dissimilar activities.
    This NWP does not authorize the construction of storm water 
management facilities or sewage treatment facilities. Storm water 
management facilities and sewage treatment facilities may be authorized 
by NWP 43 or individual permits. The activities authorized by NWP 27 
comply with the similar in nature requirement for general permits. This 
NWP authorizes aquatic habitat restoration, creation, and enhancement 
activities that provide benefits for the aquatic and human 
environments. NWP 27 is reissued with the modification discussed above.
    28. Modifications of Existing Marinas. There were no changes 
proposed to this nationwide permit. There were no comments on this 
nationwide permit. The nationwide permit is reissued without change.
    29. Single-family Housing. There were no changes proposed to this 
nationwide permit. One commenter stated that the Corps has failed to 
demonstrate with substantial evidence that the acreage limits 
applicable to this and many other NWPs is sufficiently protective of 
the environment. The commenter also stated that the Corps must 
validate, with evidence and an environmental impact analysis, the 
acreage limits it sets for all NWPs. Another commenter said that 
single-family housing is not a water dependent activity, and therefore 
it is presumed that alternative locations are available for these 
activities. That commenter also stated that activities authorized by 
this permit are not similar and result in more than minimal adverse 
environmental effects, even individually, much less cumulatively and, 
that the acreage limits are arbitrary and capricious. Another commenter 
recommended a full environmental impact statement and, at a minimum, 
only use the permit to authorize homes, without attendant features, 
with a \1/10\ acre limit and that the Corps establish a process to 
monitor cumulative impacts over time. The commenter also recommended 
the Corps prohibit use of this permit in high growth counties and that 
it not be used to authorize placement of septic tanks or leach fields 
in wetlands.
    The Corps believe that the listing of the type of activities 
authorized by this NWP will ensure that those activities authorized by 
this NWP will be similar in nature. Further, we believe that normally 
these activities will have no more than minimal adverse effects on the 
aquatic environment, individually and cumulatively. Further, Division 
and District Engineers will condition such activities where necessary 
to ensure that these activities will have no more than minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
Therefore we find that the NWPs do not require an EIS. However, we do 
prepare environmental assessments to assess potential impacts. NWP 29 
was originally issued with a \1/2\ acre maximum limit. We reviewed this 
threshold in 1999 and decided to reduce the maximum acreage limit for 
NWP 29 to \1/4\ acres. We continue to believe that this is the 
appropriate maximum acreage limit. The environmental assessment for 
this NWP is published on our webpage for review. It is true that the 
activities authorized by the NWP are not water dependent as defined in 
the Section 404(b)(1) guidelines. However, the alternatives test does 
not apply to NWPs as stated in the 404(b)(1) guidelines. Therefore, it 
is not presumed that alternative locations are available for these 
activities. Furthermore, the EPA and the Corps issued additional 
guidance on March 6, 1995 regarding compliance with the Section 
404(b)(1) guidelines for small landowners. These activities comply with 
this guidance. This guidance is also available on the Corps webpage. 
The nationwide permit is reissued without change.
    30. Moist Soil Management for Wildlife. There were no changes 
proposed to this nationwide permit. One commenter suggested that this 
permit be revised to allow local public agencies to conduct these 
activities, especially when they would result in environmentally useful 
activities. Another commenter stated that, because the activities 
authorized by this permit are not similar, the permit should be 
withdrawn. They go on to say that since the general public cannot 
determine what activities are authorized by this permit, direct, 
indirect, or secondary impacts cannot be determined to result in 
minimal adverse environmental impacts.
    We agree that this NWP should also allow local agencies to conduct 
these activities on public property. Therefore we have modified the NWP 
to allow activities on local government agency owned or managed 
property to also be authorized by this NWP. We believe that the terms 
and conditions will ensure that the adverse effect on the aquatic 
environment will be minimal. Further we believe this change will 
provide for additional opportunities for activities to provide needed 
environmental benefits. Also should some of these activities have the 
possibility to have adverse environmental effects, the Corps districts 
or divisions have the discretionary authority to require activity 
specific conditions or regional conditions. We believe that the listing 
of the type of activities will ensure that those activities authorized 
by this NWP will be similar in nature. Further, we believe that 
normally these activities will have no more than minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
Further, Division and District Engineers will condition such activities 
where necessary to ensure that these activities will have no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively. The nationwide permit is reissued with the change 
described above.
    31. Maintenance of Existing Flood Control Facilities. The Corps 
proposed to modify NWP 31 to clarify Corps policy and requirements 
regarding mitigation for maintenance activities. We also proposed 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 to ensure that adverse environmental effects 
are no more than minimal.
    Two commenters insisted that the language of this NWP must be clear 
that exempt facilities are not now regulated and they suggested that 
facilities built prior to, or that were not subject to mitigation as 
part of the CWA, should not now be subject to mitigation requirements 
for routine maintenance. They suggested that the language of the 
currently proposed NWP conflicts with the Corps policy indicating that 
routine maintenance impacts are temporary and generally not worthy of 
mitigation. They

[[Page 2047]]

questioned how one mitigates for ``unspecified discharges''. They also 
agree with the Corps Civil Works policy that one-time mitigation should 
be required as part of the project and should address all permanent and 
temporary impacts, and that this should be required at the time the 
project is initially constructed. Most commenters agreed that a one 
time mitigation requirement for these maintenance projects may be 
appropriate.
    We do not agree that discharges of dredged or fill material in 
waters of the United States that are part of a pre-Clean Water Act 
flood control facility are exempt from permit or mitigation 
requirements. Although discharges associated with the construction of 
facilities that pre-date the Clean Water Act are not subject to any 
retroactive authorization requirement, waters of the U.S. flowing 
through such facilities are not excluded from jurisdiction under the 
Act. As such, discharges of dredged or fill materials into these waters 
remain subject to section 404 requirements. NWP 31 conveys the section 
404 authorization for discharges associated with flood control facility 
maintenance activities, provided (1) That a maintenance baseline is 
established, (2) that the adverse effects of discharges associated with 
establishing that baseline are adequately mitigated, and (3) that 
discharges associated with subsequent maintenance activities do not 
alter the maintenance baseline. We believe that mitigation need only be 
imposed once, as part of the establishment of the maintenance baseline, 
to ensure that the loss of waters of the U.S. that are attributable to 
discharges associated with the establishment of that baseline are no 
more than minimal. Once this is accomplished, regulated discharges that 
are associated with maintaining the established baseline, and that do 
not incur losses beyond those addressed in conjunction with the 
establishment of that baseline, are authorized under NWP 31 without the 
need for further mitigation.
    We believe that the utilization of the ``maintenance baseline'' 
procedure is consistent with Corps policy to the effect that ``routine 
maintenance impacts are temporary and generally not worthy of 
mitigation.'' The maintenance baseline establishes the limits within 
which regulated maintenance-related discharges are authorized by NWP 
31, and excluded from additional mitigation requirements. We agree 
that, ideally, all mitigation for permanent and temporary impacts 
resulting from the construction of flood control facilities, and from 
the inevitable maintenance, should be imposed only once, at the time of 
initial construction. The Clean Water Act does not provide an exemption 
for discharges into the waters of the U.S. specifically for maintenance 
of flood control facilities. Unless section 404 authorization for 
discharges associated with regulated construction and maintenance 
activities has been conveyed through some other means, such as through 
the Federal Project authorization process, authorization through the 
Corps permit process is required. As previously indicated, although 
section 404 authorization is not required for discharges associated 
with flood control facility construction that pre-dates the Clean Water 
Act, the Act does not exempt discharges in waters of the U.S. that may 
accompany the maintenance of these facilities. We believe that NWP 31, 
with the inclusion of the maintenance baseline provision, is a 
reasonable and appropriate procedure for conveying the section 404 
authorization required for maintenance-related discharges that have not 
been previously authorized through other means. Finally, the question 
as to how one mitigates for ``unspecified discharges'' is, we believe, 
based on a misprint in the original Federal Register notice. The 
preamble, at page 42077 of this notice indicates that we intended to 
``* * * proactively prescribe mitigation for * * * unspecified 
discharges * * *'' (emphasis added). This sentence should have read ``* 
* * proactively proscribe mitigation for * * * unspecified discharges * 
* *''
    One commenter suggested that the mitigation requirement should 
consider future, cumulative impacts as these impacts would likely 
result in more than minimal adverse impacts to aquatic resources.
    We believe that mitigation requirements associated with NWP 31, as 
proposed, are sufficient to account for future, cumulative impacts. As 
envisioned, mitigation will be required for adverse effects on the 
aquatic environment that are attributable to regulated discharges 
associated with the establishment of the baseline physical parameters 
(i.e., the maintenance baseline) of the flood control facility. 
Maintenance-related discharges that do not exceed the established 
maintenance baseline will not result in losses of aquatic resources 
beyond those addressed at the time the maintenance baseline is 
established. Discharges that exceed the established maintenance 
baseline are not eligible for authorization under NWP 31.
    One commenter stated that baseline criteria are often difficult to 
produce, especially for much smaller drainage/utility districts which 
may not have nor maintain such records. Two other commenters indicated 
their support for revisions to this permit which recognize that cyclic 
maintenance is inherent in the continued operation of flood control 
facilities, and that regulated discharges will inevitably occur as a 
result of this activity. They also support the revisions allowing 
discharges in emergency situations. They suggested that the Corps 
should clarify that, in situations where baseline information is 
unavailable due to the age of the facility, lack of construction 
drawings will not preclude use of this NWP.
    We acknowledge that producing records of baseline parameters may 
not be possible in all cases, but we can not waive this requirement. In 
these cases, a new maintenance baseline must be established before the 
maintenance-related discharges in the subject facility are eligible for 
authorization under NWP 31.
    One commenter suggested that the proposal to authorize maintenance 
activities on natural features is a departure from previous practice 
and creates the greatest risk for more than minimal adverse 
environmental impacts. Also, they state that they believe it is 
critical that the Corps articulate its basis for extending 
authorization into areas that previously have been prohibited under 
this NWP, as well as an explanation as to why it believes that adequate 
protection will be provided through the use of BMPs. They want the 
Corps to clarify under what circumstances it considers a natural 
segment to be ``incorporated'' into a flood control facility, as the 
term may be interpreted broadly to the detriment of aquatic resources. 
Lastly, they also believe that the open ended nature of the provision 
may lead to greater than minimal impacts and confusion after the 
activities are completed, when mitigation is required, and urge the 
Corps to make clear that this provision only applies to situations 
satisfying the minimal effects test in light of existing regulatory 
provisions that already provide for emergency permitting.
    The incorporation of natural areas into an overall flood control 
facility is accomplished through the establishment of a maintenance 
baseline that includes these areas. Although the current NWP 31 differs 
from its predecessor with respect to the treatment of these natural 
areas, this NWP does not authorize discharges that exceed this 
baseline. As such, NWP 31 does not authorize any regulated discharge 
that results in the further loss of jurisdictional aquatic areas in the 
flood control facility, including those in the subject natural

[[Page 2048]]

areas. Upon incorporation in the maintenance baseline, the physical 
parameters of the natural area can be maintained, but not exceeded, 
through maintenance activities that may involve regulated discharges 
that are authorized by NWP 31. For example, scoured banks in a natural 
area may be restored to the baseline condition (but only restored, not 
exceeded) through a discharge of fill material that is authorized under 
NWP 31. Beyond this, the application of Best Management Practices (such 
as a time-of-year restriction on the discharge) may further minimize 
adverse effects on the aquatic environment. As with all NWPs, Corps 
Districts may ``override'' the use of this NWP by requiring individual 
permits in situations where the District believes that adverse effects 
are likely to exceed the minimal level. In light of these factors, we 
do not agree that the concerns presented in this comment warrant 
further modification of NWP 31.
    One commenter objects to the ``one-time mitigation requirement'' as 
the Corps has not satisfactorily demonstrated that compensatory 
mitigation is successful in replacing the lost functions and values 
destroyed through the original construction of the flood control 
facility. They also state that it is impossible to pre-determine the 
magnitude of potential adverse impacts when there are no limits on the 
acreage of impacts or cubic yardage of excavation authorized under this 
permit.
    Excavation in waters of the U.S. that results in only incidental 
fallback is not regulated under section 404 of the Clean Water Act, and 
such activities are not subject to mitigation requirements imposed 
under that law. Regardless, in the context of the NWPs, the mitigation 
of the adverse effects of regulated activities need only offset those 
effects such that ``no more than minimal'' adverse effects remain, and 
not necessarily to guarantee that losses are exhaustively compensated. 
NWP 31 authorizes maintenance-related discharges that are subject to 
regulation under section 404. The establishment of the maintenance 
baseline, in effect, identifies the location and physical dimensions of 
waters of the U.S. that have been incorporated in the flood control 
facility. Discharges that result in losses of these waters (i.e., that 
exceed the maintenance baseline) are not eligible for authorization 
under NWP 31. In light of this, we believe that the ``one time 
mitigation requirement'' imposed in conjunction with the establishment 
of the maintenance baseline is sufficient for the purpose of this NWP.
    One commenter indicated that there are far too many unclear 
considerations in this permit for it to protect water quality and 
critical aquatic habitat. They recommend the Corps (1) Process 
emergency activities through individual permits, (2) maintain and 
strengthen existing mitigation requirements for unavoidable impacts and 
amend as needed to comport with aquatic habitat changes, (3) develop a 
clear definition of acceptable maintenance baselines and a clear 
explanation of what constitutes suitable documentation, and (4) include 
adequate conditions that further protect water quality and aquatic 
habitat and must allow comment from the public prior to adoption and 
implementation.
    Although we respect the concerns that are implicit in this comment, 
we do not agree that further modification or elaboration of NWP 31 (or 
of our emergency permit procedures) is a necessary or appropriate way 
to address them. In adopting generic permits such as NWP 31, and in 
designing emergency procedures for nationwide application, we try to 
avoid being unnecessarily prescriptive or restrictive. Our intent is to 
afford Corps Division and District offices with significant discretion 
and latitude as to the final application of the NWP program and the 
emergency procedures, in order to allow them to tailor the actual 
application of the NWPs to the nuances of local situations that we can 
not anticipate. Toward this end, we strive to make the generic NWPs as 
broad as possible within the constraints imposed by the law and related 
regulations, in order to maximize the potential applicability of these 
permits. At the same time, we provide our Division and District offices 
with the authority to further condition, modify, suspend, or revoke 
these permits in response to regional or local conditions that demand 
such actions to ensure that effects remain at or below the ``minimal'' 
level. The corollary to that authority is the Division and District 
responsibility to ensure that the ``no more than minimal'' threshold is 
not exceeded by individual activities authorized under a NWP.
    One commenter recommended that the Corps consider a review of 
potential cost to the applicant in establishing a maintenance baseline 
on a given project. They also opined that any review of whether a 
project has been abandoned should consider more than just time in that 
decision-making process due to the fact that the financial resources to 
perform that maintenance in what might be considered a timely manner 
are not always available.
    Although we are aware of the importance of cost considerations to 
all applicants for Corps permits, we have no authority to waive 
requirements under the law because of these considerations. The 
establishment of a maintenance baseline is the key component of NWP 31 
because it delineates parameters of waters of the U.S. that are 
incorporated into the flood control facility, within which regulated 
discharges are eligible for authorization under the NWP. As such, we 
can not factor cost considerations into the requirements for 
establishing a maintenance baseline. We believe that NWP 31, as 
proposed, does not compel an abandonment determination to be based 
exclusively on the time that elapses between maintenance events. This 
provision of NWP 31 takes into account whether the capacity has been 
significantly reduced, and whether maintenance was needed but not 
performed, in addition to consideration of the length of time during 
which the capacity has been significantly reduced, and during which 
needed maintenance was not performed. The non-specific nature of the 
facets of this provision is deliberate, as is the absence of a 
consideration of environmentally beneficial features, such as wetlands, 
that may have developed between maintenance events. Our awareness of 
some of the practical realities of operating and maintaining flood 
control facilities encourages us to believe that the bar should be set 
fairly high for determining that such a facility has been abandoned for 
the purposed of NWP 31.
    One commenter suggested that the development of the ``maintenance 
baseline'' to be employed at these facilities should account for 
channel and habitat characteristics associated with a hydrogeomorphic 
approach.
    The establishment of the maintenance baseline is related to 
ensuring that losses of waters of the United States, beyond those 
addressed in conjunction with such establishment, do not occur as a 
result of regulated discharges that are authorized by the NWP. We do 
not believe that formalized assessment methodologies are necessary to 
accomplish this. The implication of this suggestion is that NWP 31 
procedures should be used to determine baseline channel and habitat 
characteristics, which could then be maintained through subsequent 
authorizations under the NWP. We do not believe that this is practical 
or appropriate. Many maintenance activities that are not subject to 
regulation under section 404 of the Clean Water Act, such as excavation 
that results in only incidental fallback, are likely to affect channel 
and habitat characteristics as much as, or more than, the kinds of

[[Page 2049]]

discharges that are regulated under NWP 31. We do not believe that it 
is appropriate to use this NWP to regulate effects that are not 
attributable to regulated activities.
    Two commenters stated that the periodic maintenance of flood 
control facilities is required for the operation of those facilities 
and will not have a significant adverse impact on the environment when 
conducted within the maintenance baselines for such facilities. They 
support the clarification proposed for NWP 31 that maintenance of these 
facilities do not require compensatory mitigation when approved BMPs 
are utilized.
    We believe that the maintenance baseline procedure, in combination 
with the imposition of BMPs, will preclude the need for mitigation for 
regulated discharges associated with routine and recurrent maintenance 
activities in most cases. However, in designing nationwide generic 
permits such as NWP 31, we ultimately rely on our Division and District 
offices to provide the final surety that the specific regulated 
activities that are authorized under the NWPs do not result in more 
than minimal effects. To ensure that the ``minimal effect'' threshold 
is not exceeded in individual cases, we believe that the Divisions and 
Districts must continue to have the authority to impose mitigation 
requirements in addition to BMPs as a means of achieving this.
    Three commenters stated that the Corps should not regulate 
temporary discharges associated with maintenance activities within the 
flood control facilities since there is not a permanent impact. They 
state that NWP 31 should make it clear that temporary stockpiles and 
redeposits associated with otherwise unregulated excavation is not a 
loss of a water of the U.S. that requires compensatory mitigation. They 
also state this holds true for other maintenance activities associated 
with the flood control facility that are not within Corps jurisdiction, 
i.e., mowing or brush hogging. In addition, they assert, if the flood 
control facility was constructed by the Corps and turned over to a 
local or state agency for maintenance, and did not mitigate for the 
maintenance of its project, the receiving agency should not be burdened 
with the Corps omission. They also suggest that ensuring that 
mitigation and/or ESA surveys would not be required if the maintainer 
reduced the frequency of routine maintenance might be a valuable 
mitigation tool in and of itself. Lastly, the Corps should provide a 
means that minimal impact NWP 31 activities could be authorized without 
a PCN.
    We agree that, in situations where there is no permanent loss of 
waters of the U.S., no mitigation for such temporary effects is 
required. However, this does not exempt temporary discharges from the 
need for section 404 authorization, even when those discharges are only 
incidental to otherwise unregulated activities. Generally, we believe 
that it is not appropriate to impose mitigation for effects 
attributable to unregulated activities, such as excavation that results 
in only incidental fallback, but to the extent that significant 
regulated discharges may accompany some unregulated maintenance 
activity, mitigation may be required to ensure that there are no more 
than minimal adverse effects. We believe that such determinations must 
be made on a case-by-case basis, as individual NWP authorizations are 
confirmed.
    We do not intend to impose any restriction on the frequency of 
routine maintenance. We believe that such decisions should be left to 
those responsible for the operation and maintenance of flood control 
facilities, since they must often must balance budget limitations 
against the projected need for maintenance.
    We do not intend to impose, on local sponsors, any requirement to 
mitigate for impacts attributable to the construction of a Corps-
constructed flood control facility. However, many such facilities were 
constructed prior to the implementation of the Clean Water Act, so no 
section 404-related mitigation was required. Although Clean Water Act 
requirements are not retroactively imposed on the construction of these 
facilities, the Corps has no authority to exempt current discharges of 
dredged or fill material that occur in conjunction with the maintenance 
of the facility, or to waive any requirement for necessary mitigation.
    Reiterating the concern of the previous comment, another commenter 
stated that, absent sufficient reasoning for requiring a PCN, the Corps 
should delete the PCN requirement from this permit as it is costly to 
the applicant both from a time and money standpoint.
    We are not currently confident that we could prescribe conditions 
and limitations on potential NWP 31-authorized discharges sufficient to 
ensure that their adverse effects can reasonably be determined to be no 
more than minimal in most cases, in the absence of site-specific 
verification through the PCN process. Conversely, we are not certain 
that the PCN requirement for this NWP could not be relaxed at some 
point in the future, as we gain greater experience with use of the NWP. 
In light of this uncertainty, we believe that the inclusion of the PCN 
requirement is prudent, for the current issuance of this NWP, but the 
Corps will continue to evaluate its appropriateness for future 
reissuances.
    One commenter supported the concept of maintenance baseline, 
however, to assure the impacts are minimal, suggests that the state 
regulatory agencies and state and federal resource agencies be involved 
in the review and approval of the maintenance baseline, as well as 
mitigation for the projects.
    The Corps believes that establishment of the maintenance baseline 
is essentially a technical exercise. Since the maintenance baseline for 
NWP 31 purposes, as proposed, is a description of the physical 
characteristics of the flood control project that has been or is being 
constructed through some independent authorization, we do not agree 
that coordination with state or Federal agencies is necessary or 
warranted for the establishment of the baseline. Coordination may be 
necessary or appropriate for authorization of the project itself, 
depending on the terms and conditions of the legal authority under 
which project authorization occurs.
    Two commenters indicated the need to define ``best management 
practices'' and ``maintenance baselines'' so that a true assessment of 
impacts resulting from the proposed changes to the NWP can be made. 
They also suggested that the Corps should work with local communities 
to restore floodplain functions, where possible, and maintain existing 
wetlands to help moderate peak flows.
    We believe that the concepts of ``best management practices'' and 
of the ``maintenance baseline'' do not need further definition in order 
to adequately understand the impacts of this NWP. Through the 
Regulatory Program, and through other Civil Works and Military 
Programs, the Corps does work with local communities to restore 
floodplain functions and to maintain and restore wetlands, but these 
comments are outside the scope of NWP considerations.
    One commenter indicated the changes to this permit could allow any 
stream that has been deemed incorporated into a ``flood control 
facility'' to be routinely maintained with little or no mitigation 
required. He suggested that mitigation should be required for all 
maintenance activities.
    In issuing this NWP, it is our intent to provide for identification 
of the

[[Page 2050]]

extent of waters of the U.S. that exist within the flood control 
facility, and to authorize maintenance-related, regulated discharges in 
a manner that does not result in a net loss of these waters. We believe 
that it is appropriate to include streams that have been incorporated 
into flood control facilities through the establishment of a 
maintenance baseline. As long as the maintenance baseline is not 
exceeded, we believe that the authorization of maintenance-related 
discharges, with little or no mitigation, is adequate and appropriate, 
both in areas that include structural features and in those that do 
not. In light of the fact that only the discharge associated with 
maintenance activities requires a CWA section 404 permit and other 
maintenance activities may not be regulated even if conducted in 
section 404-only waters, we do not believe that mitigation for all 
maintenance activities is necessary or appropriate. It is not our 
intent to use this or any NWP to require mitigation for unregulated 
activities. Despite this, Corps Division and District offices are 
authorized to impose mitigation requirements that they determine are 
necessary to keep effects at a minimal level.
    One commenter suggested that maintenance baselines be re-evaluated 
periodically to determine if it still reflects existing conditions. Two 
other commenters opposed the specifications for one-time mitigation 
stating that habitat and species composition changes over time, 
warranting additional mitigation. Also, a separate and new permit 
should be created through coordination with the US Fish and Wildlife 
Service for emergency flood control work.
    The maintenance baseline is intended to be a fixed description of 
physical parameters that cannot be exceeded by regulated discharges 
authorized under NWP 31. Changes in conditions in the flood control 
facility are expected to occur, and NWP 31 is intended to authorized 
regulated discharges associated with maintenance activities that can 
return the facility to the maintenance baseline condition, but not 
exceed them. As such, we believe that the maintenance baseline must 
remain fixed, and that it would be inappropriate to raise or lower the 
bar in connection with periodic reviews. If the operator of the 
facility wished to change the baseline, however, they could apply to 
the Corps to do so and appropriate mitigation would be required at the 
time a new baseline is established. We believe that the current 
emergency procedures, along with the revisions to NWP 31 related to 
emergency maintenance, are sufficient to provide necessary and 
appropriate environmental consideration in emergency situations. In 
light of this, we do not agree that a new permit should be created.
    One commenter who opposed NWP 31 stated that they were concerned 
with the requirement for mitigation stating that if adverse impacts 
truly were minimal, then mitigation should not be needed.
    After the establishment of the maintenance baseline, we believe 
that the adverse impacts attributable to regulated discharges 
associated with maintenance activities will, indeed, be minimal, and 
mitigation will not be required. However, if the loss of waters of the 
U.S. in a particular reach of a flood control facility has not 
previously been mitigated, and a regulated discharge associated with a 
needed maintenance activity will result in such loss, we believe that 
``once only'' mitigation may be required as a prerequisite to NWP 31 
eligibility, and that it should be imposed in conjunction with the 
establishment of the maintenance baseline.
    One commenter questioned whether BMPs would adequately protect 
areas covered under this NWP from environmental degradation and loss of 
fish and wildlife habitat values.
    BMPs are intended to minimize the adverse effects of regulated 
activities. With respect to NWP 31, the application of BMPs in 
conjunction with the maintenance baseline provisions is expected to 
ensure that the effects of activities authorized under this NWP are no 
more than minimal. They are not necessarily intended to prevent 
environmental degradation and the loss of habitat values that may be 
attributable to factors that are not caused by maintenance activities.
    One commenter suggested redrafting NWP 31 to clarify what is 
already exempt under statute and regulation and to narrow its 
application to debris basins and retention/detention basins, to the 
portion of constructed soft bottom channels beyond the limits 
reasonably related to maintenance of the sides of the channel, to 
natural watercourses that are part of a flood control facility, and to 
any other part of an existing flood control facility that is not a 
structure or a constructed fill.
    Since our intent in issuing this NWP is to assure that its 
applicability is as broad as possible within the constraints of the NWP 
program, we do not agree that is necessary to impose further 
limitations that are not supported by any clear indication that such 
limitations are necessary to ensure that the effects will be no more 
than minimal.
    One commenter contends that it should not be mandated that the 
baseline, with supporting mitigation, be required after-the-fact 
whenever emergency maintenance has occurred, but instead, the actual 
facts associated with the emergency related activities should be 
considered. If no impacts, or only minor impacts, occurred there should 
be no need to undertake the burdensome task of establishing a baseline. 
He also suggests that the imposition of administrative burdens to 
address minor maintenance activities essential to keeping flood control 
structures in safe operating conditions, cannot be justified and is not 
required under Section 404.
    Regardless of the circumstances, the requirement to establish a 
maintenance baseline is only imposed in conjunction with the 
prospective use of NWP 31. If the applicant is not willing or able to 
establish a maintenance baseline, other Corps permit processes can be 
applied to consider authorizations for discharges associated with 
maintenance activities, but necessary mitigation would be required in 
any case. Since neither emergency circumstances nor the minor nature of 
a particular activity is exempted from regulation under the law, we can 
not exempt them through the NWP process. We believe that NWP 31, as 
proposed, is a reasonable and prudent way to minimize the burdens 
imposed on applicants, within the constraints of applicable law and 
regulation.
    One commenter requested clarification of terms such as ``reasonably 
foreseeable discharges'' and ``routine maintenance'' and ``cyclic 
maintenance'', as well as a clarification of the intent of this rule. 
He suggested that the rules should provide for permitting authorization 
for structures constructed by agencies other than the Corps, with 
maintenance activities focused on restoration to a specific baseline.
    We believe that the intent of this NWP, which is to authorize 
discharges associated with maintenance activities in flood control 
facilities, is adequately indicated in the NWP, as written. We do not 
believe that the terms ``reasonably foreseeable discharges,'' ``routine 
maintenance'' or ``cyclic maintenance'' need to be further defined, 
since the applicability of NWP 31 does not depend on any precise 
definition of these terms. As designed, NWP 31 does focus on the 
maintenance of a predetermined baseline. However, we believe that the 
inclusion, in this NWP, of provisions to authorize the

[[Page 2051]]

construction of structures in jurisdictional areas is not warranted. 
The authorization of structures is limited to that provided by other 
applicable NWPs and standard permits. NWP 31 authorizes regulated 
discharges associated with maintenance activities for the purposes of 
section 404 of the Clean Water Act and section 10 of the Rivers and 
Harbors Act.
    One commenter stated that riverine systems that do not have 
constructed channels cannot be considered flood control structures and 
the activities proposed by this NWP would result in more than minimal 
impacts to the environment. He suggests, if the NWP is issued that, at 
least regionally, use of this NWP should be prohibited in areas that 
are not constructed channels.
    As proposed, NWP 31 addresses the maintenance of flood control 
facilities, and not just structures. This NWP authorizes discharges 
associated with maintenance activities, but it does not subject 
otherwise unregulated activities or non-jurisdictional areas to the 
requirements of applicable law. The effects being addressed in 
connection with this NWP are those that result from regulated 
discharges in jurisdictional areas. Upon the establishment of the 
maintenance baseline, the effects of subsequent maintenance-related 
discharges that do not exceed that baseline will, generally, be no more 
than minimal.
    One commenter indicated that the NWP would result in a significant 
workload increase for the Corps as most projects did not have a 
baseline prepared and as a result, a significant quantity of one-time-
only mitigation might be identified when these first baselines are 
determined. This mitigation would have to be reviewed and approved by 
the Corps. This mitigation preparation and execution would also put a 
financial and manpower hardship on local sponsors. He suggests a 
grandfather clause so that the projects would qualify for NWP 31 with 
no requirement for baseline determinations and/or supplemental 
mitigation.
    Since the Corps has no authority to exempt discharges associated 
with maintenance activities from regulation under the law, or from 
corresponding mitigation requirements, we can not adopt a grandfather 
clause to waive these requirements. Although we recognize that the 
establishment of a maintenance baseline, and the imposition of related 
mitigation requirements, will impose a significant burden in some 
cases, we believe that this one-time procedure is a viable way of 
generally assuring that the effects of subsequent maintenance-related 
discharges are no more than minimal.
    One commenter suggested that the proposed NWP does not address 
provisions of, and possible conflict with, a recent proposed policy 
guidance document for authorization of maintenance activities through 
the USACE Civil Works Department. He suggests specific language 
providing that revised as-builts and updated environmental surveys be 
submitted rather than an EIS to authorize maintenance activities under 
the Civil Works Program. The commenter would like to see the processes 
for modification of existing manuals to NEPA and CWA standards be more 
standardized and expedited.
    This comment is apparently more concerned with the specifics of 
prospective policy guidance on the maintenance of Corps flood control 
facilities, than with NWP 31 as proposed. We believe that any 
consideration of issues related to the effects of such policy guidance 
must be deferred until such time as the policy guidance is actually 
issued.
    One commenter objected that the requirements of the proposed NWP 31 
extend jurisdiction to areas outside of those regulated by the CWA, 
i.e., areas which are the upland portions of detention facilities and 
areas above the normal high water level in stream channels. If this 
approach is adopted, the commenter suggests the extent of information 
required is so detailed and extensive as to make it unruly.
    NWP 31 does not extend Clean Water Act jurisdiction to areas or 
activities that are not subject to that law. Unregulated activities, 
and work in non-jurisdictional areas, do not require section 404 
authorization under NWP 31 or any other Corps permit process. The 
maintenance baseline provision of NWP 31 does, by necessity, include 
considerations of non-jurisdictional areas, but this prerequisite only 
applies in the context of NWP 31. Other permit avenues, such as 
individual permit procedures, remain available to consider maintenance 
activities that require section 404 authorization in circumstances in 
which the maintenance baseline information requirements can not be 
accommodated by the applicant.
    One commenter requested that the Corps revise the NWPs to eliminate 
the use of the term ``incidental fallback,'' to avoid any requirement 
for the case-by-case demonstration of proposed equipment use, and to 
avoid reliance on the ``rebuttable presumption'' approach to defining 
``discharge of dredged material.''
    We do not believe that this change is necessary. Like all NWPs, NWP 
31 authorizes only regulated discharges and does not alter or enlarge 
program jurisdiction. For example, incidental discharges are addressed 
in the regulations themselves at 33 CFR 323.2(d), and not the NWPs.
    The nationwide permit is reissued as proposed.
    32. Completed Enforcement Actions There were no changes proposed to 
this nationwide permit. One commenter suggested that NWP 32 should be 
withdrawn as it is too broad for projects to be considered ``similar in 
nature'', or to be able to determine that the various projects, when 
considered individually or cumulatively, will result in minimal adverse 
environmental effects, and that it's limitations are arbitrary and 
capricious (e.g., 5 acres, 1 acre).
    The Corps believes that the description of the type of activities 
will ensure that those activities authorized by this NWP will be 
similar in nature. Further, we believe that normally these activities 
will have no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. Further, Division and 
District Engineers will condition such activities where necessary to 
ensure that these activities will have no more than minimal adverse 
effects on the aquatic environment, individually and cumulatively.
    Another commenter recommended changes to NWP 32 which would allow 
restoration-based settlements for natural resource injuries by adding 
the following text: (iii) The terms of a final court decision, consent 
decree, settlement agreement, or non-judicial settlement agreement 
resulting from a natural resource damage claim brought by a trustee or 
trustees for natural resources (as defined by the National Contingency 
Plan at 40 CFR subpart G) under section 311 of the Clean Water Act 
(CWA), section 107 of the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA or Superfund), section 312 of 
the National Marine Sanctuaries Act (NMSA), section 1002 of the Oil 
Pollution Act of 1990 (OPA), or the Park System Resource Protection Act 
at 16 U.S.C. 19jj. For (i), (ii), and (iii) above, the compliance is a 
condition of the NWP itself.
    The Corps agrees with the commenter. These are Federal 
environmental legal resolutions that we believe should proceed without 
the delays caused by processing individual permits that would have no 
added value to resolutions under these laws. However, we have added a 
clarification that this

[[Page 2052]]

NWP only applies to the extent that a Corps permit is required.
    The nationwide permit is reissued with the change discussed above.
    33. Temporary Construction, Access and Dewatering There were no 
changes proposed to this nationwide permit. One commenter suggested 
that NWP 33 should be withdrawn as activities authorized under this 
permit cannot be considered ``similar in nature'' and do not result in 
temporary or minimal adverse environmental effects to waters of the 
U.S.
    The Corps believes that the description of the type of activities 
will ensure that those activities authorized by this NWP will be 
similar in nature. Further, we believe that normally these activities 
will have no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. Further, Division and 
District Engineers will condition such activities where necessary to 
ensure that these activities will have no more than minimal adverse 
effects on the aquatic environment, individually and cumulatively.
    The nationwide permit is reissued without change.
    34. Cranberry Production Activities There were no changes proposed 
to this nationwide permit. One commenter recommended that the Corps not 
reissue this permit as it violates section 404(e) of the CWA and the 
section 404(b)(1) Guidelines. The commenter stated that cranberry 
growers are allowed to ``buy down'' impacts of conversion with 
compensatory mitigation and that compensatory mitigation is allowed to 
take the form of preservation. The commenter further stated that some 
have indicated that cranberry production can degrade water quality, 
harm fisheries, and reduce water quantity, each of which can 
significantly, adversely affect the aquatic environment.
    The Corps believes that this NWP is fully in compliance with 
section 404(e) of the Clean Water Act. Further the Corps believes that 
it is appropriate to require mitigation for adverse effects of a 
project and that the mitigation can be considered when determining that 
the adverse effects of a project are minimal.
    The nationwide permit is reissued without change.
    35. Maintenance Dredging of Existing Basins There were no changes 
proposed to this nationwide permit. Two commenters pointed out that 
there was a change in the proposed NWP 35 which was not mentioned in 
the Preamble. Another commenter recommended withdrawing this permit as 
it is not reasonable to conclude that the cumulative impacts of all of 
the activities authorized under this category would not result in 
greater than minimal adverse environmental effects. The commenter 
stated it is reasonable to conclude that this category of activities 
would be incapable of being in compliance with CZM programs.
    The Corps agrees that there were differences in the NWP from the 
1996 NWP. However, the Corps did not intend to propose a change to this 
NWP. This was an error. This NWP will be adopted as it has existed 
since 1996. We continue to believe that the cumulative effects of 
activities authorized by this NWP will be no more than minimal 
individually and cumulatively. Furthermore, Corps districts or 
divisions may add case-specific or regional conditions where necessary 
to further ensure that the adverse effects to the aquatic environment 
are no more than minimal, individually and cumulatively. The states 
will review the activities authorized by this NWP and will agree or 
disagree that these activities comply with their State CZM programs. If 
the States disagree, then activities that otherwise qualify for the NWP 
will need to get an individual State CZM concurrence before they can 
proceed. If the state conditions its CZM agreement, then those state 
CZM condition will become conditions of the NWP.
    The nationwide permit is reissued without change from the 1996 NWP.
    36. Boat Ramps There were no changes proposed to this nationwide 
permit. One commenter suggested that NWP 36 should be withdrawn as it 
is unreasonable to conclude that the cumulative impacts of all of the 
activities authorized under this category would not result in greater 
than minimal adverse environmental effects. The commenter expressed is 
doubt that the adverse indirect/secondary impacts of extracting the 
source materials and subsequent degradation of water quality associated 
with the use of the construction of boat ramps has been considered by 
the COE.
    We continue to believe that the cumulative effects of activities 
authorized by this NWP will be no more than minimal, individually and 
cumulatively. Furthermore, Corps districts or divisions may add case-
specific or regional conditions where they believe necessary to further 
ensure that the adverse effects to the aquatic environment are no more 
than minimal, individually and cumulatively. The Corps will also 
consider adverse effects at borrow areas where appropriate. It should 
be noted that normally the materials for the small boat ramps are 
obtained from existing borrow areas or sources that exist independently 
of the small projects. Any individual water quality issues will be 
addressed by the states through water quality certifications, NPDES 
permits or other programs. In some cases the Corps may directly address 
water quality issues when appropriate.
    The nationwide permit is reissued without change.
    37. Emergency Watershed Protection and Rehabilitation The Corps 
proposed to modify this NWP to include the Department of the Interior 
(DOI), Wildland Fire Management Burned Area Emergency Stabilization and 
Rehabilitation Program (DOI Manual, part 620, Ch. 3) to this NWP. The 
existing NWP only included the Natural Resource Conservation Service 
(NRCS) and U.S. Forest Service (USFS) Programs for emergency watershed 
protection and rehabilitation. 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.
    Several commenters suggested additional changes to this NWP, 
including limiting the time that the NWP can be used after an emergency 
situation, such as 2 years, and broadening the NWP to cover State and 
local emergency activities. One commenter suggested that there were 
abuses, such as converting waters of the U.S. in the guise of 
restoration. Another commenter recommended retaining the word 
``exigency'' in the permit language until such time that NRCS completes 
their final PEIS and modifies their regulations accordingly to ensure 
that the impacts from this category of NWP will not exceed the minimal 
impact threshold.
    The Corps believes that the time constraint and the expansion to 
include State and local emergency activities would need to be proposed 
before a change could be adopted. Furthermore, we believe that the 
suggested time constraint is not needed and we are not aware of any 
such abuses. The Corps will monitor the use of this NWP and will 
propose any changes that may be necessary to ensure that any adverse 
effects on the aquatic environment are no more than minimal, 
individually or cumulatively. The Corps believes that the terminology 
used to describe the NRCS emergency situations will not result in 
materially different activities that are now covered by the NWP. Should 
there be a change the Corps can modify the NWP accordingly.
    One commenter suggested a grammatical change, removing the

[[Page 2053]]

``Work done or funded by'' from the beginning of subsections ``b'' and 
``c'' in order to be consistent with subsection ``a''. We concur with 
this comment and have accordingly changed the NWP.
    The nationwide permit is reissued as proposed and with the change 
described above.
    38. Cleanup of Hazardous and Toxic Waste There were no changes 
proposed to this nationwide permit. One commenter indicated that this 
NWP covers many different activities that are not similar activities. 
The commenter added that the NWP also lacks any indication of a time 
constraint that would constitute an ``emergency'' response, which may 
have occurred up to five years later in some cases. The commenter also 
stated that there have been adverse effects that occur under the guise 
of so-called ``Restoration''.
    The Corps believes that the description of the type of activities 
will ensure that those categories of activities authorized by this NWP 
will be similar in nature. Further, we believe that normally these 
activities will have no more than minimal adverse effects on the 
aquatic environment, individually and cumulatively. In addition, 
Division and District Engineers will condition such activities where 
necessary to ensure that these activities will have no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively. The addition of a time constraint would need to be 
proposed before a change could be adopted. Furthermore, we believe that 
a time constraint is not needed and we are not aware of any such 
abuses. The Corps will monitor the use of this NWP and will propose any 
changes that may be necessary to ensure that any adverse effects on the 
aquatic environment are no more than minimal, individually or 
cumulatively. The nationwide permit is reissued without change.
    39. Residential, Commercial, and Institutional Developments The 
Corps proposed 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 
waiver of the 300 linear-feet prohibition following a written 
determination by the Corps that any adverse environmental effects would 
be no more than minimal.

Simplify the Subdivision Provision

    Several commenters supported simplifying the subdivision provision 
while several others indicated that the existing subdivision provision 
should remain. Several commenters expressed concerns about repeated use 
of the NWP within a subdivision and supported applying the aggregate of 
all fills in waters of the U.S. to the \1/2\ acre threshold. Some 
commenters did not want the restriction to apply to future individual 
lot owners while others wanted to ensure that it did. One commenter 
asked whether the new subdivision language would apply to all 
subdivisions or would some be grandfathered. Another expressed concern 
about Corps workload and record keeping impacts due to grandfathered 
subdivision dates. One commenter requested that individual lot owners 
within a subdivision be exempted from the subdivision provision. 
Another commenter indicated that the \1/10\ acre notification 
requirement should be retained in the subdivision provision.
    The Corps continues to believe that to make the subdivision 
provision effective, it needs to be simplified. The subdivision 
provision will apply to all, but only to, residential subdivisions, 
regardless of when they were built. This will create some additional 
workload in older residential subdivisions not yet completed. However, 
in appropriate cases Corps divisions and districts may consider 
regional general permits or abbreviated permit processes. Also Corps 
divisions and districts may add regional conditions to require 
notification or other restrictions when appropriate. The subdivision 
provision will apply to all lots within a residential subdivision. 
Furthermore, when authorizing future residential subdivisions the Corps 
will consider the status of lots that maybe filled in the future and 
add them to the total for determining compliance with the aggregate \1/
2\ acre threshold. The simplified subdivision provision will simplify 
Corps record keeping and workload. But more importantly it will further 
compliance with this condition and thus provide additional 
environmental protection while allowing those subdivisions with minimal 
impact to proceed without unnecessary costs and delays.
    Delete the One-cfs Restriction on Stream Impacts: Many commenters 
objected to the removal of the one cfs restriction on stream impacts 
and requested that it be restored to ensure that developments are not 
located on flood prone property without full individual permit review, 
including public notice and comment. One commenter recommended a 
preferred modification involving retaining the provision and proposed 
specific conditions under which this provision might be waived e.g. 
severe degradation. Another commenter was concerned that removal of 
this provision could jeopardize streams considered degraded by the 
Corps when that degradation might be eliminated or reduced through 
simple changes in management practices. Two commenters supported the 
elimination of the one cfs restriction agreeing that it was 
inconsistent with the intent of the NWP, but one of them further went 
on to say that the prohibition is unnecessary, confusing and results in 
many minimal impact projects having to undergo the individual permit 
process, and that the condition is arbitrary as there is no data to 
support the application of this condition. One commenter stated that 
removing the one cfs prohibition would allow a developer to completely 
remove most functions provided by a stream, however, this much impact 
should not be authorized by the Corps.
    The Corps agrees with those commenters that the one cfs restriction 
is unnecessarily prohibitive. There is a need on occasion to have some 
unavoidable elements of relocation and channelization below the one cfs 
point on a stream for a project covered by NWP 39. In these cases there 
would be no value added to the environment by processing an individual 
permit. Further, the added complication and costs of making a 
determination of another point on a stream in addition to the five cfs 
point, unnecessarily adds a burden to the Corps and the applicant. We 
further believe that there are several other general conditions that 
protect important stream values; such as General Condition 21 
Management of Waters Flows, General Condition 20 Spawning Areas, 
General Condition 17 Shellfish beds and General Condition 9 Water 
Quality to name a few.
    300 Linear Foot Prohibition with a Waiver: This issue is discussed 
elsewhere in this preamble.
    Compliance with 404(e): Several commenters indicated that the NWP 
was not in compliance with Section 404(e). One commenter said that 
since a residential development is not a water dependent activity, it 
is presumed that alternative locations are available for these 
activities.
    We believe that the minor nature of these types and categories of 
activities will ensure that they are similar in nature. We further 
believe that the conditions and specified thresholds will ensure that 
the activities will have no more than minimal adverse effects on the 
aquatic environment, individually and cumulatively. The thresholds have 
been developed and greatly reduce from 10 acres in 1984 down to \1/2\ 
acre in 2000, based on years of experience and were developed to 
consider most effects

[[Page 2054]]

that could occurs in many areas of the country. However, Division and 
District Engineers will condition such activities where necessary to 
ensure that those activities will have no more than minimal adverse 
effects on the aquatic environment, individually and cumulatively. A 
case specific off-site alternatives analysis is not required for 
activities with minimal adverse effects that are authorized by NWPs, as 
provided for the Clean Water Act section 404(b)(1) Guidelines. However, 
on-site avoidance and minimization is required by General Condition 19.

Other Comments

    Many commenters opposed the preamble discussion regarding the 
phasing of subdivisions. The Corps has defined the concept of single 
and complete projects for the purpose of authorizing activities by 
nationwide permits. This term is defined in Corps regulations at 33 CFR 
330.2( i). The preamble discussion states how the Corps is implementing 
the regulations. The Corps is not proposing to change the nationwide 
permit regulations at this time.
    Two commenters requested conditions requiring a pre-construction 
notification for all wetland impacts to allow the Corps to determine 
the appropriateness of using the NWP for wetlands impacts. One of those 
commenters recommended that permittees be required to verify compliance 
with the NWP general conditions. A pre-construction notification is a 
requirement for impacts to greater than \1/10\ acre of non-tidal waters 
of the U.S., excluding non-tidal wetlands adjacent to tidal waters. 
This NWP can not authorize activities in tidal waters of the U.S. and 
not in non-tidal wetlands adjacent to tidal waters and not for 
permanent above grade fills below the headwaters in the 100 year flood 
plain as provided for in general condition 26. We believe that this 
will ensure that the impacts will be no more than minimal. Furthermore, 
Corps divisions and districts will add regional conditions as 
appropriate to further ensure that cumulative effects will be no more 
than minimal. The Corps believes that it would be an unnecessary and 
unreasonable burden on an applicant to demonstrate compliance with all 
conditions. The Corps districts will request verification of compliance 
for those conditions that the Corps believes are applicable to a 
project but for which the applicant did not supply sufficient 
information.
    This NWP is reissued as proposed except with the modified 300 
linear foot waiver discussed below.
    40. Agricultural Activities. The Corps proposed to modify this NWP 
by providing a waiver for the 300 linear foot limit on relocating 
existing serviceable drainage ditches constructed in non-tidal streams. 
Several commenters opposed this NWP, with some suggesting that it be 
withdrawn. Some commenters suggested additional restrictions to the 
NWP. These restrictions included changing the maximum acreage threshold 
(e.g. 1% of the farm tract, .3 acres, \1/2\ acre for the entire farm 
holding or all the tracts under one ownership, \1/4\ acres, and \1/10\ 
acre); prohibiting conversion of waters of the US. to agricultural 
production; requiring that all impacts must be fully mitigated; and 
requiring that the Corps must review and approve all mitigation. 
Additional suggestions included requiring a pre-construction 
notification to include a hydrologist report documenting the extent of 
both primary and secondary impacts; limiting the linear footage of fill 
in all streams to 250 feet; prohibiting the discharge of fill into 
playas, prairie potholes, and vernal pools, withdrawing the provision 
that states that ``discharges of dredged or fill materials into waters 
of the US. associated with the construction of compensatory mitigation 
are authorized by the NWP, but are not calculated in the acreage loss 
of waters of the US'; and requiring that the Corps make its own minimal 
effects determination consistent with section 404 of the Clean Water 
Act.
    Many of these suggestions would require that the Corps publish 
proposed changes to this NWP for public comments. The Corps can 
consider and propose any such appropriate changes after this NWP is 
reissued. However, at this time we believe that the threshold that we 
established in 1996 continues to be appropriate for this NWP. The Corps 
will review appropriate activities for compliance with this NWP 
including requiring appropriate mitigation and ensuring that the 
authorized activities will have no more than minimal adverse effects on 
the aquatic environment, individually and cumulatively. Further, we 
also believe that the PCN requirements are adequate to allow the Corps 
to make such determinations. We also believe that the PCN requirements 
will ensure that any jurisdictional activities in playas, prairie 
potholes, and vernal pools will have no more than minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
However, for activities authorized by paragraph a. of this NWP, we will 
rely on NRCS to make those decisions. We believe that this is adequate 
and appropriate considering NRCS's responsibilities under the 
Swampbuster provisions of the Farm Bill. The threshold limits for all 
NWPs are based on the amount of impacts to waters of the US of the 
proposed activity. We do not allow that limitation to be modified by 
considering mitigation to decrease that number. However, we do consider 
the net effects including the project effects, mitigation and impacts 
caused by the mitigation in deciding whether the activity will have no 
more than minimal adverse effects on the aquatic environment, 
individually and cumulatively.
    Most commenters stated that the activities authorized under this 
permit would pose a serious threat of contamination to wetlands and 
nearby streams from animal waste and should be withdrawn.
    We understand these concerns. However, these issues are normally 
considered and will be addressed as part of the states' Section 401 
water quality certification or by a Section 402 permit.
    Most commenters stated that the scope of this permit violates the 
minimal impact standards as it unnecessarily exceeds the \1/4\ acre 
limit for filling wetlands under the ``minimal effects'' provisions of 
the Farm Bill, and, as such, should be withdrawn.
    The Corps disagrees. Nothing in this NWP will override the 
provisions of the Farm Bill. Where an activity is covered by the Farm 
Bill, it must meet the requirements of the Farm Bill as well as the 
requirements of the Corps NWPs. The NRCS is responsible for determining 
compliance with the Farm Bill, while the Corps is responsible for 
determining compliance with the NWP.
    One commenter recommended withdrawing this NWP as the activities 
authorized by it are not water dependent activities, are very 
dissimilar in nature and result in major adverse impacts to the human 
environment. Additionally, the impact thresholds are arbitrary and 
capricious.
    We believe that the minor nature of these types and categories of 
activities will ensure that they are similar in nature. We further 
believe that the conditions and specified thresholds will ensure that 
the activities will have no more than minimal adverse effects on the 
aquatic environment, individually and cumulatively. The thresholds have 
been developed based on years of experience and were developed to 
consider most effects that could occurs in many areas of the country. 
However, Division and District engineers will condition such activities 
where necessary to ensure that those activities

[[Page 2055]]

will have no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. This nationwide permit is 
reissued with a modified 300 linear foot waiver as discussed below.
    41. Reshaping Existing Drainage Ditches. There were no changes 
proposed to this nationwide permit. Three commenters said that this NWP 
should not be reissued. One commenter stated that there is no 
demonstrated need for this NWP. Three commenters objected to the 
reissuance of the NWP because there are no acreage or linear foot 
limits. One of these commenters suggested adding a 500 linear foot 
limit and a 250 linear foot pre-construction notification threshold. 
One commenter said that the sidecasting of drainage ditch soils may 
have significant adverse impacts on the hydrologic regimes of adjacent 
wetlands. Another commenter indicated that impacts due to temporary 
sidecasting of excavated material result in more than minimal adverse 
effects on the human environment.
    This NWP authorizes the reshaping of existing, serviceable drainage 
ditches in a manner that benefits the aquatic environment. Without this 
NWP, project proponents would likely have to obtain an individual 
permit to reshape drainage ditches in a manner that helps improve water 
quality in a watershed. Requiring an individual permit for this 
activity would discourage landowners from conducting this activity. We 
do not agree that acreage or linear limits are necessary because of the 
nature of the authorized activity. The pre-construction notification 
threshold of 500 linear feet will allow district engineers to review 
ditch reshaping activities that may result in more than minimal adverse 
effects to the aquatic environment. In response to a pre-construction 
notification, a district engineer can require special conditions to 
ensure that adverse effects on the aquatic environment are minimal or 
exercise discretionary authority to require an individual permit for 
the work.
    One commenter asserted that this NWP will encourage the drainage, 
degradation, and further loss of waters and wetlands. One commenter 
recommended revocation of this NWP within ``Tulloch'' ditches because 
the permit provides additional opportunities for developers to fill 
wetlands with little oversight by the Federal government. This 
commenter also suggested modifying NWP 41 to require planting of native 
trees and shrubs on ditch banks after construction to reduce the 
potential for water quality degradation.
    This NWP authorizes only temporary sidecasting of excavated 
material into waters of the United States. Therefore, activities 
authorized by this NWP will not have significant, permanent impacts on 
the hydrology of adjacent wetlands or the human environment. This NWP 
does not encourage the loss of waters and wetlands because it is 
limited to activities in existing, serviceable drainage ditches and 
reshaping activities cannot increase the area drained by the ditches. 
We do not agree that it is necessary to require planting of native 
trees and shrubs after construction. Drainage ditches require periodic 
maintenance to remove accumulated sediments and any trees and shrubs 
planted next to drainage ditches would have to be removed during 
maintenance activities.
    One commenter said that if this NWP is used to authorize activities 
in waters that support salmonids, then a regional condition should be 
added to the NWP. The recommended regional condition would require 
delineations of pools and riffles and require that the reshaping 
activity be conducted in a manner that does not reduce the volume and 
surface area of pools or other suitable habitat.
    Division engineers can add regional conditions to this NWP to 
address concerns for salmonid species.
    One commenter objected to the reissuance of this NWP, stating that 
it does not define the term ``drainage ditch'' narrowly, it does not 
require an applicant to prove that the proposed ditch reshaping 
activity will not increase the area drained by the ditch, it does not 
require mitigation when work is designed to improve water quality. This 
commenter said that the NWP should clarify that pre-existing waterways 
are not drainage ditches, even if they have been channelized. This 
commenter recommended adding the following text to NWP 41: ``This 
general permit is limited to reshaping that would restore more natural 
stream characteristics by activities similar to increasing the area of 
riparian vegetation through re-grading or by recreating stream 
meanders.'' Other suggestions by this commenter include requiring 
applicants to obtain NRCS minimal effects determinations and best 
management practices certifications and requiring mitigation for 
adverse impacts to aquatic resources authorized by this NWP.
    This NWP does not define the term ``drainage ditch''. District 
engineers can determine, on a case-by-case basis, what constitutes a 
``drainage ditch''. The Corps has modified the language of this permit 
slightly to clarify that drainage ditches constructed in uplands are 
generally not waters of the US, consistent with earlier guidance on 
this issue (FR 51:219, p 41217). We do not believe that it is necessary 
to require compensatory mitigation for activities authorized by this 
NWP, since the activities authorized by NWP 41 are designed to improve 
water quality. We do not agree that the recommended text in the 
previous paragraph should be added to NWP 41 because this NWP 
authorizes the reshaping of existing drainage ditches, not stream 
restoration activities. Requiring applicants to obtain minimal effects 
determinations and best management practices certifications from NRCS 
is unnecessary, since this NWP is limited to the reshaping of existing, 
currently serviceable drainage ditches that have minimal individual and 
cumulative adverse effects on the aquatic environment. This nationwide 
permit is reissued without change.
    42. Recreational Facilities In the August 9, 2001, Federal Register 
notice, we proposed to modify this NWP by allowing on a case-by-case 
basis, a waiver of the prohibition on impacts exceeding 300 linear feet 
of stream bed. In addition, we requested suggestions regarding 
criteria, standards, and best management practices that should be 
applied to this NWP for recreational facilities to ensure that adverse 
effects on the aquatic environment are minimal.
    One commenter requested that the Corps broaden the applicability of 
this NWP to include improvements to ski facilities, because ski area 
expansion is too narrow. This commenter also expressed support for 
expanding the scope of this NWP to include the construction of hotels 
and restaurants, because these facilities are important components of 
skiing facilities. One commenter supported the use of this NWP to 
authorize the construction of hiking, biking, and horse trails.
    This NWP can be used to authorize the construction of certain 
improvements to ski facilities, provided those improvements comply with 
the terms and conditions of the NWP. We do not agree that NWP 42 should 
be expanded to include the construction of hotels and restaurants. 
These facilities may be authorized by other NWPs, such as NWP 39, which 
authorizes discharges of dredged or fill material into non-tidal waters 
of the United States to construct commercial buildings and attendant 
features, or other types of Corps permits.
    Two commenters said that this NWP should be withdrawn. One of these 
commenters said that the NWP authorizes activities that are not similar 
in nature that result in more than minimal adverse impacts to the 
aquatic

[[Page 2056]]

environment. Six commenters asserted that this NWP should not authorize 
the construction of golf courses or ski areas. One commenter objected 
to the authorization of these facilities under NWP 42 because they are 
unlikely to substantially deviate from natural landscape contours. 
Another commenter said that the authorization of golf courses and ski 
areas discourages developers from looking for alternatives that have 
less impact on the aquatic environment. One commenter objected to the 
inclusion of campgrounds in the list of activities that may be 
authorized by this NWP. Four commenters stated that support facilities, 
such as buildings, stables, parking lots, and roads should not be 
authorized by this NWP. One commenter asked if this NWP can be used to 
authorize the construction of recreational ponds.
    This NWP authorizes activities that are similar in nature because 
it is limited to discharges of dredged or fill material into waters of 
the United States to construct recreation facilities. The terms and 
conditions of the NWP, with the case-by-case review of those activities 
that require pre-construction notification to district engineers, will 
ensure that the activities authorized by this NWP result in minimal 
adverse effects on the aquatic environment. Pre-construction 
notification is required for discharges of dredged or fill material 
resulting in the loss of greater than \1/10\ acre on non-tidal waters 
of the United States or the loss of greater than 300 linear feet of 
perennial and intermittent streams. The pre-construction notification 
process allows district engineers to review those activities that may 
result in more than minimal adverse effects to the aquatic environment. 
In response to a pre-construction notification, a district engineer can 
require special conditions to ensure that adverse effects on the 
aquatic environment are minimal or exercise discretionary authority to 
require an individual permit for the work.
    Golf courses and expanded ski facilities can be constructed so that 
they are integrated into the natural landscape, without substantial 
amounts of grading and filling. This NWP authorizes only the expansion 
of existing ski areas. Paragraph (a) of General Condition 19 requires 
permittees to avoid and minimize adverse effects to waters of the 
United States on-site to the maximum extent practicable. We do not 
agree that campgrounds should be excluded from this NWP. We believe 
that the construction of small support facilities, such as storage 
buildings and stables, are necessary attendant features for the 
operation of the recreational facilities authorized by this NWP. This 
NWP may authorize the construction of small recreational ponds, 
provided the construction of those impoundments does not substantially 
change natural landscape contours.
    One commenter said that this NWP should have a \1/3\ acre limit, 
including a 250 linear foot limit for stream impacts. Another commenter 
said that the \1/2\ acre limit was too high. One commenter stated that 
the pre-construction notification threshold should be \1/3\ acre or \1/
4\ acre, instead of \1/10\ acre. A commenter said that all activities 
authorized by this NWP should require pre-construction notification, 
and that this NWP should not authorize activities in special aquatic 
sites. One commenter recommended replacing the word ``loss'' in the 
text of the NWP with the phrase ``fill or impact (including temporary 
and permanent impacts)''.
    We do not agree that the acreage limit should be reduced to \1/3\ 
acre, or that there should be a 250 linear foot limit for stream 
impacts. In addition, we believe that the \1/10\ acre pre-construction 
notification threshold adequately ensures that all activities that 
could result in more than minimal adverse effects on the aquatic 
environment are reviewed by district engineers on a case-by-case basis. 
We do not agree that it is necessary to require pre-construction 
notification for all activities authorized by this NWP or to prohibit 
use of this NWP in special aquatic sites. Where there are concerns that 
this NWP may authorize activities with more than minimal adverse 
effects on the aquatic environment, division engineers can regionally 
condition this NWP to reduce the acreage limit or require notification 
for all activities. It is not necessary to replace the word ``loss'' 
with the phrase ``fill or impact (including temporary and permanent 
impacts)'' because the word ``loss'' addresses waters of the United 
States adversely affected by filling, flooding, excavation, or 
drainage.
    Several commenters objected to allowing case-by-case waivers to the 
300 linear foot limit for losses of stream beds. One of these 
commenters said that small and ephemeral streams are important for 
protecting water quality, preventing flooding, and providing habitat 
for many species. Another commenter said that the waiver should not be 
granted until the district engineer solicits comments from the other 
Federal and state resource and regulatory agencies.
    This waiver is discussed in more detail below in this Federal 
Register notice.
    One commenter stated that the definition of ``recreational 
facilities'' is too broad and the NWP does not adequately address 
impacts at the project site and downstream. One commenter said that the 
Corps should not attempt to establish criteria, standards, or best 
management practices because the Corps has already determined that the 
NWP authorizes only activities with minimal adverse environmental 
effects. A commenter suggested that the Corps require best management 
practices for storm water management, limits on the clearing of 
vegetation for project construction, the establishment and maintenance 
of 100 foot wide forested buffers adjacent to aquatic resources, and 
limits on the use of impervious surfaces for trails and walkways. One 
commenter requested that the NWP contain more flexibility to allow 
limited use of impervious surfaces to accomplish complete accessibility 
for the physically challenged on multi-use trails.
    We believe that the definition of ``recreational facilities'' used 
in this NWP, in addition to the terms and conditions of NWP 42 and the 
NWP general conditions, are sufficient to ensure that the NWP 
authorizes only activities with minimal adverse effects on the aquatic 
environment. The August 9, 2001, Federal Register notice sought public 
input on ways to continue to ensure that this NWP authorizes minimal 
impact recreational facilities. Compliance with General Condition 9, 
Water Quality, may require storm water management for a particular 
recreational facility. The maintenance and establishment of vegetated 
buffers may be required by district engineers as compensatory 
mitigation. Specific limits on the use of impervious surfaces are 
determined by district engineers on a case-by-case basis in response to 
a pre-construction notification. The construction of multi-use trails 
that provide accessibility for physically challenged individuals can be 
authorized by this NWP.
    One commenter said that regional conditions should be adopted to 
prevent the cumulative adverse impacts to wood recruitment in waters 
inhabited by salmon. This commenter also suggested that regional 
conditions should be adopted to prohibit the construction of trails or 
paths along the tops of banks unless the facility is constructed so 
that there is no loss of riparian vegetation and any removed vegetation 
is allowed to grow back. This commenter also said that this NWP should 
not be stacked

[[Page 2057]]

with NWP 13 because these two NWPs exert synergistic significant 
adverse impacts on wood recruitment.
    Division engineers can impose regional conditions on this NWP to 
address cumulative impacts, including impacts to salmon habitat. We do 
not agree that there should be a restriction prohibiting the use of NWP 
13 with this NWP for a single and complete project. Bank stabilization 
may be required to maintain the integrity and safety of a recreational 
facility.
    The nationwide permit is reissued with a modified 300 linear foot 
waiver as discussed below.
    43. Stormwater Management Facilities In the August 9, 2001, Federal 
Register notice, we proposed to modify this NWP by allowing on a case-
by-case basis, a waiver of the prohibition on impacts exceeding 300 
linear feet of stream bed. There were no other changes proposed to this 
nationwide permit.
    Three commenters stated that this NWP should be withdrawn. One of 
these commenters said that NWP 43 was unnecessary because the 
construction of stormwater management (SWM) facilities is authorized by 
other NWPs. Two commenters stated that new SWM facilities should not be 
constructed in streams, including ephemeral and intermittent streams. 
Another commenter said that SWM facilities are not water dependent, SWM 
facilities should not be constructed in waters of the United States, 
and the activities authorized by this NWP result in more than minimal 
adverse effects on the human environment. One commenter said that this 
NWP should not authorize activities in special aquatic sites.
    Although other NWPs, such as NWP 39, can authorize the construction 
of SWM facilities, certain types of SWM facilities, such as regional 
SWM ponds that are not associated with a particular development, may 
not be authorized by other NWPs. In some cases, the construction of SWM 
facilities in waters of the United States may be necessary and may 
provide more protection to the aquatic environment. Division engineers 
can regionally condition this NWP to prohibit its use in high value 
waters. For those activities that require notification, district 
engineers can add case-specific conditions to ensure that the adverse 
effects on the aquatic environment are minimal or exercise 
discretionary authority and require individual permits for activities 
with more than minimal adverse effects.
    One commenter said that the acreage limit for this NWP should be 3 
acres and another commenter suggested a \1/4\ acre limit for the 
construction of new facilities. One commenter requested a higher 
acreage limit for activities in non-perennial streams, stating that the 
pre-construction notification process would provide the Corps the 
opportunity to ensure that project impacts are not more than minimal.
    We believe that the \1/2\ acre limit for the construction of new 
SWM facilities will ensure that this NWP authorizes activities with 
minimal adverse effects on the aquatic environment. We do not agree 
that there should be a higher acreage limit for discharges of dredged 
or fill material into intermittent and ephemeral streams.
    One commenter stated that coordination with Federal and state 
resource and regulatory agencies should be conducted before the 
district engineer issues a waiver of the 300 linear foot limit. Another 
commenter supported waiving the 300 foot limit, but recommended that 
the Corps clarify that the presence of an ordinary high water mark is 
required when determining that a waterbody is a water of the United 
States.
    We have adopted a modified condition allowing district engineers to 
issue case-by-case waivers to the 300 linear foot limit for losses of 
intermittent stream beds, for activities that result in no more than 
minimal adverse effects on the aquatic environment. This modified 
waiver is discussed in more detail in another section of this Federal 
Register notice.
    One commenter recommended that the NWP authorize normal operations 
and maintenance activities so that the multi-objective aspects, 
including flood mitigation, of the project can be met and the community 
can realize project benefits. A commenter recommended adding a 
condition that restricts this NWP to the maintenance of existing SWM 
facilities. Another commenter said that the NWP should include a 
condition requiring maintenance of base flows during periods of low 
flow, to protect the downstream environment. This commenter also said 
that the NWP should be conditioned to prohibit the construction of 
concrete or stone-lined channels. One commenter asserted that the text 
of NWP 43 should clearly state that non-jurisdictional activities are 
not included in the acreage loss of waters of the United States.
    NWP 43 authorizes the maintenance of existing, currently 
serviceable SWM facilities. Regular maintenance of SWM facilities is an 
important mechanism for ensuring effective stormwater management, 
including flood control. We do not agree that this NWP should be 
limited to maintenance activities. Paragraph (g) of NWP 43 refers to 
General Condition 21, Management of Water Flows, which requires the 
maintenance of pre-construction downstream flows. We do not agree that 
it is necessary to condition the NWP to prohibit the construction of 
concrete or stone-lined channels. Division engineers can regionally 
condition this NWP to prohibit these types of activities. During the 
review of a pre-construction notification, district engineers can 
exercise discretionary authority if the proposed work involves the 
construction of a concrete or stone-lined channel and the proposed work 
will result in more than minimal adverse effects on the aquatic 
environment. We do not believe it is necessary to explicitly state in 
the text of the NWP that non-jurisdictional activities are not included 
in the acreage loss of waters of the United States, although this is 
true for all NWPs generally.
    One commenter said that areas within SWM facilities should not be 
considered as compensatory mitigation if regular maintenance is 
required. Another commenter said that this NWP should not authorize the 
use of SWM facilities as compensatory mitigation sites.
    Areas of a SWM facility that are not subject to regular maintenance 
can be used as compensatory mitigation sites (see paragraph (e)(3)).

    The nationwide permit is reissued with a modified 300 linear foot 
waiver as discussed below.
    44. Mining Activities. There were no changes proposed to this 
nationwide permit. Many commenters said that this NWP should be 
withdrawn. Several of these commenters believe that the activities 
authorized by this NWP result in more than minimal adverse effects on 
the aquatic environment, including water quality, navigation, and 
aquatic habitat. Some commenters said that these activities should be 
reviewed under the standard permit process.
    This NWP authorizes mining activities that have no more than 
minimal individual and cumulative adverse effects on the aquatic 
environment. The terms and conditions of this NWP, including the NWP 
general conditions, will ensure that these mining activities will have 
no more than minimal adverse environmental effects. For example, mining 
activities in navigable waters must comply with General Condition 1, 
Navigation. All activities authorized by this NWP require notification 
to the district engineer prior to commencement of mining activities. 
The pre-construction notification process allows district engineers to 
review mining activities on a case-by-case basis, to ensure that the 
proposed work has no more than

[[Page 2058]]

minimal adverse effects on the aquatic environment. In response to a 
pre-construction notification, the district engineer can add special 
conditions to the NWP authorization to ensure that the adverse effects 
on the aquatic environment are no more than minimal or exercise 
discretionary authority to require an individual permit for the work.
    One commenter stated that this NWP does not satisfy the ``similar 
in nature'' requirement for general permits, including NWPs. Another 
commenter asserted that the activities authorized by this NWP are not 
water dependent and that alternatives are available.
    This NWP complies with the ``similar in nature'' requirement of 
general permits because it is limited to aggregate and hard rock/
mineral mining activities. The water dependency test in the Section 
404(b)(1) guidelines does not require each activity in waters of the 
United States to be water dependent to fulfill its basic project 
purpose. General Condition 19, Mitigation, requires permittees to avoid 
and minimize adverse effects to waters of the United States to the 
maximum extent practicable on the project site. The NWPs do not require 
an analysis of off-site alternatives. As long as the mining activity 
results in no more than minimal adverse effects to the aquatic 
environment and complies with all terms and conditions, the activity 
can be authorized by NWP.
    One commenter said that this NWP should be withdrawn because it is 
of limited use to the aggregate mining industry. A commenter objected 
to this NWP, stating that the Corps has not demonstrated why the NWP 
should be limited to activities in isolated waters and wetlands 
adjacent to headwaters. One commenter asserted that the \1/2\ acre 
limit for this NWP is too restrictive because of the extensive pre-
construction notification and mitigation requirements. This commenter 
also said that the Corps cannot condition this NWP to prohibit 
beneficiation and mineral processing within 200 feet of an open 
waterbody. Another commenter recommended increasing the acreage limit 
to three acres for impacts to non-wetland waters and allowing district 
engineers to waive the 1 cubic foot per second limit on a case-by-case 
basis.
    The terms and conditions of this NWP, including the \1/2\ acre 
limit and the scope of applicable waters, are intended to ensure that 
activities authorized by this NWP result in no more than minimal 
adverse effects to the aquatic environment, individually and 
cumulatively. We have the authority to condition this NWP to prohibit 
beneficiation and mineral processing within 200 feet of an open 
waterbody, if such a restriction is necessary to ensure that the NWP 
authorizes only activities with no more than minimal adverse effects on 
the aquatic environment. We do not agree that a waiver for the 1 cubic 
foot per second limit for aggregate mining in headwater streams would 
be appropriate. That restriction is necessary to ensure that the NWP 
does not authorize aggregate mining activities with more than minimal 
adverse effects to headwater streams. Aggregate and hard rock/mineral 
mining activities that do not qualify for authorization under this NWP 
can be authorized by individual permits.
    Two commenters stated that this NWP must be reevaluated in light of 
the Solid Waste Agency of Northern Cook County v. United States Army 
Corps of Engineers et al. (U.S. Supreme Court No. 99-1178) (SWANCC). 
One commenter said that many mining operations do not involve 
discharges of dredged or fill material into waters of the United States 
and the Corps should reassess areas where it has exceeded its statutory 
authority. One commenter recommended modifying this NWP to clarify that 
non-jurisdictional excavation activities channelward of the ordinary 
high water mark and activities outside of the ordinary high water mark 
and adjacent wetlands do not require a Section 404 permit.
    The Solid Waste Agency of Northern Cook County v. United States 
Army Corps of Engineers et al. decision related to the scope of CWA 
jurisdiction over nonnavigable isolated intrastate waters. Aggregate 
and hard rock/mineral mining activities may occur in jurisdictional 
waters and thus could be authorized by this NWP. Activities that occur 
in non-jurisdictional waters, as determined by applicable regulations 
and case law (including SWANCC) do not require a section 404 permit. 
The nationwide permit is reissued without change.

Project Specific Wavier of 300-Linear Feet Prohibition in NWPs 39, 
40, 42, and 43

    In the August 9, 2001, Federal Register notice, the Corps proposed 
to allow a waiver, on a case-by-case basis, of the prohibitions in NWPs 
39, 40, 42, and 43 against discharges resulting in the loss of greater 
than 300 linear feet of stream bed. The waiver could be issued only 
after the district engineer reviewed a pre-construction notification 
for the proposed work and determined that the activity would result in 
no more than minimal adverse effects on the aquatic environment.
    Several commenters stated that the absolute 300 linear foot limit 
on the amount of stream that can be filled under these NWPs should be 
retained. They were concerned that the proposed waiver would lead to 
severe stream destruction from the construction of developments, 
agricultural activities, and other activities and said that the 
existing, strong linear limits on stream bed impacts should be 
retained. Some of these commenters added that the 300 linear foot limit 
provides predictability and certainty to the regulated community and 
state permitting agencies as well as reducing workload for Corps staff. 
A few commenters stated that the proposed waiver would lead to many 
variations in the way permit decisions are made between Corps districts 
and even between Corps project managers within the same district who 
use their own definitions of minimal impacts. One of these commenters 
indicated that NWP verification requests should be simple to review and 
approve, with clear thresholds and consistency in the review process. 
Another commenter stated that the waiver would require the Corps to 
rely on the expertise of applicants to provide information and allow 
developers to excavate or fill as much as one mile of a stream under a 
general permit when the intent of NWP program is to authorize only 
those activities with minimal adverse impacts. Numerous commenters 
supported the proposed waiver. Some of these commenters said that the 
waiver would allow greater flexibility and efficiency in permit 
processing and would eliminate the need for individual permits to fill 
more than 300 linear feet of stream bed where the impacts are minimal.
    The waiver adds flexibility to the Corps permit process, by 
allowing district engineers to efficiently authorize activities that 
have minimal adverse effects on the aquatic environment. Requiring 
individual permits for minimal impact activities that would otherwise 
qualify for authorization under NWPs 39, 40, 42, and 43 because they 
involve the loss of greater than 300 linear feet of stream bed would 
increase the Corps workload, with no added environmental benefits. 
Since aquatic resource functions and values vary across the United 
States, we recognize that there will be differences in the 
implementation of the waiver. However, we do not agree that the waiver 
makes the protection provided by the NWP process less consistent. 
District engineers will use their knowledge of the local aquatic 
environment, as well

[[Page 2059]]

as the information submitted in pre-construction notifications, to make 
their case-by-case determinations whether the waiver is applicable for 
a particular activity.
    Some commenters emphasized the functions and values of the small 
headwater streams in the overall health of the aquatic environment and 
stated that filling these streams will result in significant impacts. 
These commenters stated that the cumulative loss of intermittent 
streams and the downstream impacts of piping these streams can cause 
significant irreversible environmental and ecological losses. Another 
commenter added that small streams usually exist within extensive 
riparian corridors and are incorrectly called drainage ditches to 
devalue their worth. This commenter is concerned that the waiver would 
result in the degradation of headwater streams, allow channelization of 
more streams, and result in more losses of wetlands. One commenter 
stated that allowing filling of streams could impact the States' 
efforts to restore wetlands, streams, and watershed functions.
    We recognize that headwater streams often provide important 
functions and values, but there are situations where the loss of these 
streams will result only in minimal adverse effects on the aquatic 
environment. We believe that such situations would not likely occur in 
intermittent streams, but rather in perennial streams. We have thus 
decided not to adopt the waiver of the 300 linear foot limit for 
perennial streams. The absolute prohibition on the use of these permits 
where more than 300 linear feet are impacted remains in place for 
perennial streams. We have decided to adopt the waiver process for 
intermittent streams, thereby allowing district engineers to waive, on 
a case-by-case basis, the 300 linear foot limit for the loss of 
intermittent stream beds under NWPs 39, 40, 42, and 43. It is important 
to note that, in order for the waiver to occur, the district engineer 
must make a written determination that the proposed work will result in 
no more than minimal adverse effects on the aquatic environment. If the 
district engineer does not provide written confirmation of the waiver, 
then the 300 linear foot limit for the loss of intermittent stream beds 
remains in place and the project proponent must obtain another type of 
Corps permit for the proposed activity.
    Further, if the proposed work will result in more than minimal 
adverse effects on the aquatic environment, the district engineer will 
determine that the waiver is not applicable and require the project 
proponent to obtain an individual permit. As an added level of 
protection to valuable headwater streams, division engineers can 
regionally condition the NWPs to further restrict or prohibit their use 
in high value waters. The waiver will not impact States' efforts to 
restore waters and watersheds, since the waiver can only be issued 
after case-by-case review.
    Some commenters asked how the Corps would determine whether an 
activity resulted in minimal environmental impacts to justify waiving 
the 300 linear foot limit. One commenter asked if the cumulative 
effects of the waiver would be evaluated each time the waiver was used. 
A few commenters said that the Corps cannot justify eliminating and 
waiving the 300 linear foot limit until the Corps can demonstrate that 
there are no cumulative adverse impacts resulting from activities 
authorized by NWPs.
    District engineers will use their knowledge of local aquatic 
environments and case-specific circumstances to determine when proposed 
activities will result in minimal adverse effects on the aquatic 
environment. District engineers monitor the use of NWPs on a watershed 
or regional basis to determine whether the cumulative adverse effects 
of these activities are more than minimal.
    One commenter said that the 300 linear foot limit for the NWPs 
should be reduced to 200 linear feet. This commenter also recommended 
that mitigation should be required for all projects that result in a 
net loss of aquatic habitat, acreage, or function.
    We do not agree that the 300 linear foot limit should be reduced to 
200 linear feet. The mitigation requirements for the NWPs are addressed 
in General Condition 19, Mitigation. For activities authorized by NWPs, 
project proponents are required to avoid and minimize adverse effects 
to waters of the United States on-site to the maximum extent 
practicable. District engineers will determine, on a case-by-case basis 
whether compensatory mitigation is required to offset losses of waters 
of the United States and ensure that the adverse effects on the aquatic 
environment are minimal.
    Several commenters discussed the example provided in the August 9, 
2001, Federal Register notice (page 42079) which described a 6-inch 
wide by 1-inch deep ephemeral stream running for several thousand feet. 
One commenter inferred that the Corps was devaluing all such streams 
and that the loss of these streams would result in more than minimal 
impacts. This commenter said that relatively intact ephemeral streams 
perform a diversity range of hydrologic, biogeochemical, and habitat 
support functions that directly affect down-gradient streams. Another 
commenter stated that these small headwater tributaries provide 
important habitat for aquatic life, including fish spawning areas. This 
commenter also said that these streams are important habitat for 
amphibians and reptiles during those short periods when water is 
flowing or ponded, and that the continued loss of this habitat is 
cumulatively damaging. Another commenter stated that headwater streams 
should be protected, and added that continued permitting of these 
activities under the NWP program must include careful individual site 
review by qualified aquatic biologists. Two commenters said that 
minimal impact determinations for the waiver of the 300 linear foot 
limit should require on-site inspections.
    The example provided in the August 9, 2001, Federal Register notice 
was intended as an illustrative example to show that some impacts 
exceeding 300 linear feet may still be minimal. It was not intended to 
suggest that all ephemeral streams are of low value, or that all 
impacts to ephemeral streams are by definition minimal. As a practical 
matter, ephemeral streams are not covered by the 300 linear feet 
limitation, so a formal waiver is not needed for ephemeral streams. 
However, even a project that impacts only an ephemeral stream could be 
required to obtain an individual permit if the District Engineer 
determined that individual or cumulative adverse effects were more than 
minimal. Under the waiver process, the district engineer would have to 
make a written determination that the loss of an intermittent stream 
segment exceeding 300 linear feet would result in minimal adverse 
effects on the aquatic environment. We do not agree that it is 
necessary to require on-site determinations in all cases by district 
engineers prior to issuing a waiver. District engineers can utilize 
their experience, information provided in pre-construction 
notifications, and other sources of information before determining the 
applicability of the waiver.
    Three commenters suggested allowing the resource agencies to review 
all waiver applications. One of these commenters said that the public 
should be allowed to comment on these minimal effect determinations. 
Several commenters were opposed to the requirement for a written 
determination of a waiver without a time clock.
    We do not agree that it is necessary to conduct agency coordination 
or a public comment process for requests to

[[Page 2060]]

waive the 300 linear foot limit for intermittent streams for NWPs 39, 
40, 42, and 43. District engineers have the expertise to determine on a 
case-by-case basis whether these activities will result in more than 
minimal adverse effects on the aquatic environment. We do not believe 
it is necessary to adopt a separate time clock for waiver requests. If 
a project proponent submits a complete pre-construction notification 
for a NWP 39, 40, 42, and 43 activity, and the proposed work involves 
filling or excavating more than 300 linear feet of intermittent stream 
bed, the project proponent cannot assume that the proposed work is 
authorized by these NWPs unless a written waiver is obtained from the 
district engineer. District engineers should respond to requests for 
the 300 linear foot waivers for intermittent streams within the 45 day 
pre-construction notification period.
    NWPs 39, 40, 42 and 43 are issued with a waiver for the 300 linear 
foot limit for intermittent stream beds. These NWPs cannot be used to 
authorize the loss of more than 300 linear feet of a perennial stream 
bed. As a clarification, there are no absolute quantitative limitations 
on linear impacts to ephemeral streams, as long as the adverse effects 
on the aquatic environment are no more than minimal.

Nationwide Permits General Conditions

    1. Navigation. There were no changes proposed to this General 
Condition. There were no comments on this General condition. The 
General Condition is adopted without change.
    2. Proper Maintenance. There were no changes proposed to this 
General Condition. There were no comments on this General Condition. 
The General Condition is adopted without change.
    3. Soil Erosion and Sediment Controls. There were no changes 
proposed to this General Condition. There were no comments on this 
General Condition. However, there was a comment on NWP 7 that the Corps 
determined was related to this condition. The change is discussed in 
the Preamble discussion of NWP 7. We agreed with the comment.
    The General Condition is adopted with a change to encourage 
permittees to perform work in waters during low-flow or no-flow 
conditions.
    4. Aquatic Life Movements. In the August 9, 2001, Federal Register 
notice, the Corps proposed to modify this General Condition to clarify 
the intent of the condition was to protect aquatic life cycle 
movements.
    One commenter stated that the current General Condition 4 was 
difficult to understand. Numerous commenters supported the 
clarification of this General Condition. Several commenters suggested 
that the statement ``substantially disrupt life cycle movements'' be 
replaced with ``prevent life cycle movements'', because substantial 
gives the impression that the impacts may be more than minimal. One 
commenter suggested that General Condition 4 should be revised to read, 
``No activity conducted under a NWP may substantially disrupt the 
necessary life-cycle movements of those species of aquatic life 
indigenous to the water body, including those species that normally 
migrate through the area, culverts placed in streams must be installed 
to maintain low flow conditions''. One commenter recommended that 
General Condition 4 should restrict any activity that could impact or 
impair aquatic life stages or movement of organisms dependent upon 
waters or wetlands. One commenter stated that there is no need to 
change the wording of General Condition 4, if the Corps would consider 
that all movements by an organism are related to its life cycle. One 
commenter requested clarification of this condition concerning the 
application of the condition to other organisms, which do not have all 
of their life cycles within the aquatic environment (amphibians).
    We have retained the word ``substantially'' in the text of this 
General Condition, which is related to the movement of the species not 
to the impact on the species. Removal of this word would change the 
standard to any movement no matter how minimal or inconsequential the 
movement would be. We believe that most work in waters of the United 
States will result in some disruption in the movement of some aquatic 
organisms through those waters. District Engineers will determine, for 
those activities that require notification, if the disruption of 
aquatic life-cycle movements is more than minimal and either add 
conditions to the NWP to ensure that the adverse effects are no more 
than minimal or exercise discretionary authority and require an 
individual permit.
    A few commenters stated that culverts must be installed in streams 
to maintain low and high flow conditions to allow fish passage. One 
commenter added that the hydraulic analysis to determine that range of 
high flows through the culvert shall be based upon anticipated flows in 
the basin at build-out.
    The Corps believes that it is important to maintain low flow 
conditions, but that it is not reasonable or necessary to require 
hydraulic analysis for every culvert that would be authorized by NWPs. 
Corps district can enforce this condition where necessary.
    One commenter stated that activities for which the primary purpose 
is to impound water should be evaluated as individual permits and not 
authorized under NWPs since ponds significantly disrupt the necessary 
life cycle of aquatic life.
    We believe there are impoundment projects which would substantially 
disrupt the movement of specific individuals of aquatic life, but which 
would not adversely affect the populations of the species nor have more 
than minimal impacts on the aquatic environment. Such activities would 
need to be processed as individual permits.
    This General Condition is adopted as proposed.
    5. Equipment. There were no changes proposed to this General 
Condition. There were no comments on this General Condition. The 
General Condition is adopted without change.
    6. Regional and Case-by-Case Conditions. There were no changes 
proposed to this General Condition. One commenter stated that the 
public was not given adequate time to evaluate the regional conditions 
as they were not published in the Federal Register. Furthermore, the 
comment period for the regional conditions did not coincide with the 
comment period of the proposal to modify and reauthorize the NWP 
program. Therefore, the public was not provided an opportunity to 
evaluate and provide comment on the comprehensive and cumulative 
impacts of the NWPs.
    Regional conditions are proposed and evaluated by the individual 
Corps division offices by a public notice and comment process. Case-by-
case conditions are developed by Corps District or Division offices, to 
ensure that specific activities meet the NWP conditions and have no 
more than minimal adverse effect on the aquatic environment, 
individually and cumulatively. Division offices need to know what the 
final NWPs are before they can develop final regional conditions. 
Therefore, the review of any proposed regional conditions can not occur 
simultaneously with the review of the NWPs. Finally, this condition is 
to reinforce that those regional and case-by-case conditions are 
legally binding conditions of the NWPs.
    The General Condition is adopted without change.
    7. Wild and Scenic Rivers. There were no changes proposed to this 
General condition. There were no comments on

[[Page 2061]]

this General condition. The General Condition is adopted without 
change.
    8. Tribal Rights. There were no changes proposed to this General 
condition. One commenter stated that tribal rights have been impaired 
due to cumulative impacts by the NWP program and suggested that a 
regional condition should be implemented to prohibit use of NWPs in 
south Florida until a regional EIS has been completed. The comments 
have been forwarded to the appropriate Corps District. The General 
Condition is adopted without change.
    9. Water Quality. The Corps proposed to clarify this condition as 
it relates to detailed studies and documentation requirements. We also 
proposed to add language that clarifies that permittees may meet the 
requirement of this condition by complying with state or local water 
quality practices.
    Numerous commenters agreed with the proposed change to General 
Condition 9. Many commenters stated the current more burdensome 
requirements, detailed studies, and design plans, only serve to expend 
the time and resources of the applicant. Several commenters indicated 
concern that the Corps may infringe upon the water quality authority of 
the State. One commenter recommended that General Condition 9 be 
revised to mandate compliance with the most stringent applicable 
standards whether they are federal, state, or local. One commenter 
stated that the Corps should not defer authority by making state or 
local permits a contingency of an NWP. Several commenters disagree with 
the proposed changes to this condition stating that many local 
jurisdictions lack the skilled personnel to develop and/or enforce 
adequate water quality standards and without evaluation of the state or 
local practices, the Corps cannot insure that impacts to the aquatic 
environment are minimal. One commenter stated that the proposed 
clarification should be withdrawn because the General Condition is less 
stringent than the existing condition and will result in poorer water 
quality. One commenter suggested that this condition should be expanded 
to specifically exclude the use of any NWP for a project adjacent to or 
in any water of the U.S. designated on a State 303(d) list.
    We believe 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 
water quality 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. The Corps proposed a 
condition in 1998 to restrict NWPs in State 303(d) (impaired) waters. 
We decided not to adopt that condition as explained in the March 9, 
2000 preamble. We could not now adopt such a condition without 
proposing it for public review and comment.
    The General Condition is adopted as proposed.
    10. Coastal Zone Management. There were no changes proposed to this 
General Condition. There were no comments on this General Condition. 
The General Condition is adopted without change.
    11. Endangered Species. There were no changes proposed to this 
General Condition. One commenter stated that a sentence has been 
omitted from this condition in the proposed preamble with no 
notification of the change. The omitted sentence, the last line of 
11(a), states that, ``As a result of formal or informal consultation 
with the FWS or NMFS, the District Engineer may add species-specific 
regional endangered species conditions to the NWPs''. The commenter 
stated that omitting this statement shifts the burden of identifying 
and protecting potentially impacted endangered and threatened species 
and their critical habitat onto the permit applicant. The commenter 
requested that this change be dropped because the Corps has not met the 
legal requirements to adopt it.
    The commenter is correct. This sentence is included in the 
currently in force June 6, 2000, version of this General Condition, but 
not in the August 9, 2001, proposed version. The Corps did not intend 
to propose any changes to this General Condition. The omission was in 
error. The omitted sentence has been reinserted in this condition.
    One commenter stated that this condition may lead to compliance 
with the ESA however, is not likely to fully minimize or substantially 
reduce the significance of harm to listed species and their critical 
habitat. One commenter suggested this condition be re-titled to read 
``Threatened and Endangered Species'', the condition be simplified and 
clarified, and the U.S. Fish & Wildlife Service and the National Marine 
Fisheries Service web sites be placed in this condition.
    We believe this condition as stated provides not only the legal 
protection but also the actual protection required under the ESA. The 
``Endangered Species Act'' covers both threatened and endangered 
species as does the General Condition title ``Endangered Species''. We 
do not believe that it is necessary to include other agency websites 
here. These are readily accessible on the internet.
    The General Condition is adopted without change (but with the 
inadvertently omitted sentence restored).
    12. Historic Properties. There were no changes proposed to this 
General Condition. Two commenters recommended that the Corps coordinate 
with the SHPOs in accordance with the National Historic Preservation 
Act (NHPA) and requested that a FONSI should not be issued until 
consultation under NHPA has been completed.
    Division and districts will coordinate with SHPOs and Tribal 
Historic Preservation Officers where appropriate and add any regional 
conditions or case specific conditions that may be necessary to satisfy 
the NHPA in specified areas. There is no requirement to coordinate with 
SHPO in developing a FONSI and we do not believe that such coordination 
is necessary.
    The General Condition is adopted without change.
    13. Notification. In the August 9, 2001 issue of the Federal 
Register, we proposed 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 an NWP, to allow a waiver of the 300 linear-foot prohibition 
[following written verification from the Corps], and 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 U.S. These latter two changes were to make notification 
requirements consistent with changes discussed elsewhere in this 
notice.

[[Page 2062]]

    Several commenters supported the proposed clarification for the 
submittal of drawings. Few commenters disagreed with the clarification 
but some said that drawings or sketches should be a mandatory 
requirement for notification and requiring this information would 
reduce Corps workload while insuring that impacts to the aquatic 
environment are minimal. One commenter recommended that photographs be 
required with notification.
    It was not the intent of this proposed clarification to modify the 
required contents of notification or to make submittal of non required 
information mandatory but rather to encourage applicants to provide us 
as complete a submittal as possible to expedite our review of their 
application. We did state that the Corps has the discretion on a case-
by-case basis to require additional information as necessary to 
determine if the activity complies with the terms and conditions of the 
NWP.
    Several commenters agreed with the proposal to delete the 
notification requirements for above grade fill in waters of the United 
States. One commenter recommended expanding notification requirements 
to include above grade fills in NWPs 3, 12, 14, 21, 31, 39, 40, 42, and 
44 and stated that the applicant should submit documentation as to why 
there is no practicable alternative to the proposed discharge and 
provide a copy to EPA, F&WS, and NMFS. One commenter stated that a 
statement of avoidance and minimization should be submitted with NWPs 
12, 14, 40, 41, and 42.
    The Corps believes it is not necessary for permittees to routinely 
notify the Corps for above grade fills in waters of the US as long as 
they are complying with general condition 26. Comments on this issue 
are further discussed under general condition 26.
    One commenter recommended that the review period for NWPs 3, 12, 
and 33 be amended to 30 days instead of 45 to expedite energy-related 
projects. One commenter supported the 45-day time frame for review of 
notification but believed 60 days is more realistic. A couple of 
commenters requested this condition be amended to require the Corps to 
issue or deny the NWP within 45 days of receipt of a complete 
notification and the 45-day timeframe should also apply to the 300-foot 
stream waiver provision.
    The Corps normally does not take the full 45 day time period to 
verify NWPs. For energy related activities Corps districts will 
expedite the decision as to whether to verify the activity under an 
NWP. It is not necessary to make that a permit condition. Corps 
districts are required to make a decision to verify or deny the NWP 
within 45 days, or the applicant may proceed. However, this does not 
apply to waiving the 300 linear foot prohibition for intermittent 
streams or the verification of NWP 21 or the 500 linear foot limit for 
NWP 13. In these cases, the applicant may not proceed before receiving 
written verification. This is to ensure that the district has adequate 
time to make a satisfactory evaluation before deciding whether to 
authorize use of an NWP.
    One commenter stated that the Corps has amended the language in 
condition 13(a) without providing notification in the preamble. The 
March 9, 2000 Federal Register stated ``where required by the terms of 
the NWP, the prospective permittee must notify the District Engineer 
with a pre-construction notification (PCN) as early as possible''. The 
August 9, 2001 notice stated ``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''. The commenter indicated this change will increase the 
incentive of permit applicants to withhold relevant information 
necessary for full evaluation of a PCN and the change must be 
withdrawn.
    The Corps did not intend to propose this change. It was an error. 
The general condition will be issued with the existing language adopted 
on March 9, 2000.
    One commenter disagreed with the agency coordination threshold of 
\1/2\ acre and stated that all PCNs should require a 30-day agency 
coordination to ensure minimal impacts. One commenter stated that 
simply noting in the record that an agency concern has been considered, 
without a response to the agency, is not agency coordination and is not 
full consideration of their comments. Furthermore, the commenter stated 
that any recommendations that are not adopted, after coordinating a 
decision with the agency, should be fully documented and become part of 
the administrative record.
    We disagree. The requirement for agency coordination is to fully 
consider agency comment with no specification to document or respond to 
the commenting agency, though normally the Corps does respond to 
commenting agencies when significant concerns are raised. Further, it 
has been determined in coordination with the other Federal agencies 
that \1/2\ acre is a satisfactory threshold for required coordination. 
Coordination does occur with other Federal agencies on a case specific 
as needed basis.
    One commenter recommended that the Corps consider removing the 
mandatory delineation of special aquatic sites, including wetlands, or 
at the least adding a reasonable threshold for such documentation to 
all PCNs. One commenter recommended the addition of NWPs 3, 11, 13, 19, 
27, 31, and 36 to the requirement for submittal of delineation of 
special aquatic sites with the PCN.
    We do not believe that we should either increase or decrease the 
specific activities for which a mandatory delineation is required. We 
do not believe it is necessary for many NWPs, for example; requiring a 
delineation for NWPs 3 and 31 would be unnecessary for maintenance 
activities authorized by these NWPs. Also districts may require a 
delineation of wetlands (or any other appropriate documentation) in 
cases where they determine it is necessary to evaluate the impacts of 
the project or to determine the mitigation requirements.
    One commenter disagreed with the requirement to submit information 
regarding the original design capacities and configurations where 
maintenance excavation is proposed under NWP 7, (b)(5) because if the 
maintenance excavation is non-jurisdictional, the applicant should not 
be required to submit such information, and the Corps should not review 
non-regulated activities. One commenter recommended that the Corps 
clarify (b)(16) to state that activities that consist of non-
jurisdictional excavation or temporary stockpiling during the 
excavation process are not included in the compensatory mitigation 
requirements or in the calculation of acreage of waters lost.
    Maintenance excavation activities in section 404-only waters do not 
require a CWA section 404 permit unless they result in more than 
incidental fallback. If there are regulated excavation activities that 
can be authorized under NWP 7, then the applicant will need to provide 
information necessary for the Corps to evaluate the PCN for compliance 
with the terms and conditions of the NWP. Non jurisdictional activities 
should not be considered in mitigation requirements. However, related 
impacts of the project will be considered when determining if the 
adverse effects are more than minimal. Also the acreage impacts for 
directly related excavation activities will be included in calculating 
the acreage limits for the NWP. The concern addressed by the acreage 
limit is with the direct effects of the activity. Temporary stockpiling 
is a regulated activity and is considered for possible mitigation 
requirements where the

[[Page 2063]]

impacts are measurable. However, the acreage is not included in 
calculating the acreage limit because the impacts are temporary.
    One commenter recommended that the Corps revise the notification 
requirement in (b)(10) for NWP 31 to require the applicant to obtain 
the Corps approval prior to construction for any disposal site within 
waters of the United States. The commenter stated that the proposed 
condition requires location of disposal site at time of notification, 
which is not always an option for long-term maintenance activities.
    NWP 31 does not authorize the disposal of the excavated material 
into waters of the US unless the disposal site is submitted with the 
PCN. The District Engineer can review a disposal site to assure that it 
is not in waters of the US or, if it is in a water of the US, to 
determine if the adverse effects are more than minimal and, if so, 
disapprove the disposal site.
    One commenter recommended that the Corps accept the use of 
established state agency coordination documents concerning annual work 
plans as sufficient notification for maintenance activities.
    Once a maintenance baseline has been approved, the applicant must 
then notify the Corps of maintenance activities, either case-specific 
or generically. The state agency documents you describe may be 
sufficient, but such a decision would need to be made on a case-by-case 
basis by the appropriate Corps District Engineer.
    One commenter recommended that NWPs 3, and 31 also be added to 
(b)(5) and a delineation of affected special aquatic sites including 
wetlands, along with the location of dredge material disposal site, 
should be provided.
    NWP 3 allows for the maintenance of currently serviceable 
structures and fills, consequently wetlands and other special aquatic 
site should not be affected by the maintenance activity. However, while 
this is also true for most NWP 31 activities, NWP 31 also allows the 
maintenance of unconfined channels that have wetlands in them from time 
to time. Therefore, (b)(10) does require delineation of special aquatic 
sites, including wetlands to be included in PCNs for NWP 31. The 
location of disposal sites for NWP 31 PCNs is required by (b)(10). NWP 
3 does not provide for authorization of disposal sites in waters of the 
US, except for part (ii), which requires that the District Engineer 
specifically approve any such disposal site under a separate 
authorization.
    One commenter disagreed with the restoration plan requirement in 
(b)(11) for NWP 33 because excavation is not regulated. The commenter 
added that the regulated discharge is temporary and the only required 
restoration should be the removal of the temporary deposit.
    The restoration plan must address temporary activities including 
both filled and excavated areas. If a Corps permit is required for some 
of the temporary work and the permittee seeks authorization by NWP 33, 
then the affected waters of the U.S. must be restored by the permittee 
and a restoration plan submitted to the Corps.
    One commenter recommended that the requirement for the submittal of 
a maintenance plan under (b)(15) be deleted. Excavation in Sec. 404 
waters does not required authorization from the Corps. The maintenance 
plan is to ensure that cyclical maintenance does not cause more than a 
minimal effect and that cyclical activities only be mitigated for once.
    The Corps believes that it is necessary to maintain stormwater 
management facilities. The Corps also believes that to ensure that the 
adverse effects are minimal it is necessary that an adequate mitigation 
plan be developed by the permittee. This requirement provides the 
necessary assurances that such a necessary maintenance plan is 
developed.
    In the preamble to the August 9, 2001, Federal Register notice, the 
Corps proposed for NWPs 21, 39, 40, 42, and 43, to add language to the 
notification General Condition 13 from the permit. For all projects 
using NWP 21 and for projects using NWPs 39, 40, 42, and 43 that 
propose impacting intermittent stream beds in excess of 300 linear 
feet, the Corps must be notified and explicit authorization in writing 
obtained from the Corps before the project can proceed. There were no 
comments on this proposal. The Corps has added language to General 
Condition 13 as proposed. This added language does not change any 
requirement of the NWPs.
    The General Condition is adopted as proposed.
    14. Compliance Certification. There were no changes proposed to 
this General Condition. There were no comments on this General 
Condition. The General Condition is adopted without change
    15. Use of Multiple Nationwide Permits. There were no changes 
proposed to this General Condition. One commenter stated that the use 
of more than one NWP for a single and complete project is prohibited. 
One commenter stated that the Corps should include a General NWP 
condition that precludes the use of multiple NWPs and NWPs in 
combination with individual permits for multiple Section 10 or 404 
activities located in close proximity to one another. The commenter 
asserted the Corps is in noncompliance with Section 404(e) and NEPA 
when stacking of NWPs is allowed. One commenter suggested that the 
District Engineer be authorized to waive the highest specified acreage 
limit when stacking NWPs, not to exceed the overall minimal impact 
threshold in order to avoid an individual permit.
    We will continue to allow use of multiple NWPs to authorize a 
single and complete project provided it will result in no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively. We do not agree that allowing use of multiple NWPs is in 
violation of Section 404(e) or NEPA. We continue to believe that in 
order to allow the use of multiple NWPs for a single and complete 
project, it is necessary to not exceed the highest acreage limit of any 
of the NWPs.
    The General Condition is adopted without change.
    16. Water Supply Intakes. There were no changes proposed to this 
General Condition. There were no comments on this General Condition. 
The General Condition is adopted without change
    17. Shellfish Beds. There were no changes proposed to this General 
Condition. There were no comments on this General Condition. The 
General Condition is adopted without change.
    18. Suitable Material. There were no changes proposed to this 
General Condition. There were no comments on this General Condition. 
The General Condition is adopted without change.
    19. Mitigation. The following discussion does not alter or 
supersede requirements under the section 404(b)(1) Guidelines or 
guidance applicable to individual permits, such as the 1990 EPA/
Department of the Army MOA concerning the determination of mitigation 
under the Guidelines. The Corps proposed to revise this General 
Condition to allow a case-by-case waiver of the requirement for 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

[[Page 2064]]

streams and other non-wetland aquatic resources.

Proposed Waiver of One-for-One Mitigation Requirement

    Numerous commenters opposed the case-by-case waiver of the 
requirement for one-for-one mitigation of adverse impacts to wetlands. 
Instead they requested that the Corps maintain one-for-one and/or 
strengthen existing mitigation requirements. Several commenters stated 
that wetland loss continues to occur despite the regulatory programs 
efforts and ``no net loss'' policy, and that the proposed waiver would 
allow extreme flexibility in implementing mitigation policy which would 
be counter to current Federal mitigation guidance and ``no net loss''. 
Rather the proposal would further invite net losses of wetlands. As 
such, many commenters recommended that the Corps require compensation 
for impacts to wetlands at higher than a one-for-one ratio, or at a 
minimum, clearly outline the Corps discretion to require greater than 
one-for-one ratios.
    The Corps is committed to the no overall net loss of wetlands goal, 
and will continue to require more than one for one mitigation for 
wetland loss in its nationwide permit program. The underlying policy of 
the Corps, since 1990, has been to offset impacts to wetlands at a one 
for one ratio on a functional basis. Based on the possibility of 
failure of mitigation, as pointed out in the recent NRC/NAS Report on 
the Corps Regulatory Program, the Corps has for many years required 
more than one for one mitigation on an acreage basis. The proposed 
change to condition 19 is intended to result in a more ecologically and 
watershed based approach to mitigation. Wetlands remain one of the most 
critical ecological assets in most watersheds in the Country, but other 
vital aquatic ecosystems, such as free-flowing streams, are subject to 
impacts that must also be offset. The changes to Condition 19 will 
allow the Corps biologists to make the right decision on mitigation for 
each project within the watershed context. However, to reinforce its 
commitment to the no net loss policy, the Corps will also direct its 
District Offices to ensure that their verified NWPs achieve at least 
one-for-one mitigation of all wetlands impacts, on an acreage basis for 
the District as a whole. In documenting compliance with this 
requirement, districts should not include preservation of existing 
wetlands in their district-level tally of compensating wetlands 
mitigation. Preservation, while it may be important for the aquatic 
environment and may be appropriate in some cases as mitigation, does 
not compensate for lost wetlands.
    The Corps has also slightly modified the wording of paragraph (f) 
of this general condition from what was proposed to clarify that the 
requirement to mitigate wetland impacts is not waived only the 
requirement to provide wetland mitigation. The stream buffers 
themselves may provide mitigation for wetland impacts. The wording is 
also revised to clarify that the District Engineer may reduce as well 
as completely waive the requirement for wetland mitigation for wetland 
impacts.
    One commenter stated that the waiver would conflict with the Corps 
policy that nationwide permits have only minimal adverse effects on the 
aquatic environment. Another commenter stated that wetlands offer too 
many important services to be sacrificed by implementing this waiver. 
One commenter suggested that guidelines should first be developed that 
identify the circumstances which warrant the use of a waiver mechanism 
and outline its proper implementation.
    The waiver will not sacrifice wetlands; it will ensure the best 
mitigation for each permit decision that is made. The Corps cannot 
establish specific guidelines beyond what we have for waiver of the one 
for one acreage requirement. The Corps has exceptional biological and 
ecological expertise in the districts and we trust those professionals 
to make the proper judgments in each case.
    One commenter suggested that the Corps coordinate with regulatory 
natural resource agencies for out-of-kind mitigation when the one-for-
one mitigation requirement is waived.
    The Corps 1,150 district employees in the Regulatory Program are 
predominantly biologists and ecologists. These exceptional 
professionals have the capability to make the ecological mitigation 
judgments, and with 40,000 nationwide permit decisions made every year 
the other agencies do not have the capability to substantively comment 
on every project.
    Many commenters agreed with the proposed waiver of the one-for-one-
mitigation requirement, stating it would provide the Corps with 
increased flexibility when determining appropriate mitigation. One 
commenter, while agreeing with the proposal, suggested the applicant 
should be required to justify why a less than one-for-one mitigation is 
appropriate by clearly articulating why a mitigation area's functions 
and values are greater than what was lost.
    We agree that proper mitigation decisions will be made under the 
revisions to Condition 19. The Corps will make a decision in writing 
when the one for one acreage ratio for mitigation will not be met. In 
most cases, that decision will be based on the applicant's information, 
however, we do not believe we should require a process that may not in 
some cases be needed. Applicants should note however that providing 
sound justification with a waiver request will increase the chances of 
the waiver being granted.

Vegetated Buffers

    Many commenters were opposed to the use of vegetated buffers to 
mitigate wetland losses. Several stated that allowing vegetated buffers 
to count as mitigation would be counter to current Federal mitigation 
guidance and the goal of ``no net loss''. One commenter suggested the 
proposal constitutes a major change in mitigation policy by 
establishing a sort of ``ecological trading'', allowing the offsetting 
of impacts to wetlands with compensation through non-wetland 
environmental improvements. Other commenters stated that this proposal 
was against Corps policy that nationwide permits have minimal adverse 
effects on the aquatic environment.
    The Corps believes that vegetated buffers are a critical element of 
the overall aquatic ecosystem in virtually all watersheds. Of course, 
some arid areas do not have vegetated buffers even in a natural state 
and the Corps will not require vegetated buffers where they would not 
naturally occur. However, nationwide this is uncommon. The Corps 
believes we need to protect open waters better than we have in the 
past, and vegetated buffers are a critical element of that protection. 
Many vegetated buffers to open waters are in fact wetlands. Some 
vegetated buffers are uplands, but are critical to open water 
protection. The Corps believes in a watershed approach, with the 
ability of the Corps districts to make the best decision for the 
aquatic ecosystem and watershed where the permitted impacts will occur. 
Mitigation, including vegetated buffers is used to ensure that no more 
than minimal adverse effects on the aquatic environment will occur.
    Several commenters indicated that it was inappropriate to suggest 
that vegetated buffers in uplands could act as compensatory mitigation 
for the placement of fill in waters of the U.S. A few commenters stated 
that, as a means of increasing value of mitigation, vegetated buffers 
are beneficial and are often incorporated into compensatory mitigation 
plans to offset the adverse effect of an individual permit 
authorization. However vegetated

[[Page 2065]]

buffers alone will not fully compensate for wetland loss, do not 
replace wetland/aquatic environment value and function, and should not 
be regarded as compensatory mitigation for the placement of fill in 
waters of the U.S., but instead should be added to the one-for-one 
mitigation requirement.
    The Corps takes a holistic watershed approach to mitigation of 
impacts to waters of the U.S., which includes impacts to non-wetlands. 
Vegetated buffers, both upland and wetland are a critical part of that 
watershed approach. The Corps needs the flexibility to make the best 
mitigation decision for each watershed.
    A few commenters were concerned that vegetated buffers may be used 
more often than one-for-one wetland mitigation (e.g. restoration, 
enhancement, and/or creation), supporting a continual loss of wetland 
habitats. Concerned for cases in which less than one-for-one mitigation 
of lost wetlands incorporates the establishment and/or preservation of 
vegetative buffers as part of that mitigation, commenters suggested a 
careful analysis of the functions and values of the vegetated buffers 
as compared to the impacted wetlands be performed.
    The Corps will use the modified Condition 19 to make the best 
decision for the watershed where the permitted effects occur. The Corps 
will continue to require more than one for one mitigation for wetlands, 
it is just not required for every permit decision, because that does 
not always make sense for the aquatic environment.
    One commenter suggests that functional assessments of mitigation 
with the purpose of justifying ratios less than one-for-one based on a 
projected functional boost provided by the buffer is inappropriate. 
Rather, the Corps should also address functional impacts to wetlands 
under the permit process and require mitigation for loss of functional 
value from permitted impacts to vegetated buffers.
    The Corps does use a functional basis when requiring mitigation, 
but since models to assess aquatic ecosystem functions, including but 
not limited to wetlands, are not yet comprehensive, the decision 
requires professional judgment. The Corps 1,150 Regulatory Program 
employees are predominantly biologists and ecologists, so we have the 
capability to make sound ecological decisions.
    One commenter stated the proposed regulations do not require proof 
that vegetated buffers or other methods of mitigation would replace 
lost functions and values of an impacted wetland. This commenter added 
that they were not convinced the Corps would be able to assess lost 
functions resulting from impacts to particular wetlands or those 
functions gained by incorporating vegetated buffers.
    The Corps makes its mitigation decisions on an aquatic ecological 
function basis using professional judgment. With thousands of decisions 
each year many involving less than 0.1 acre of impact, it is not 
practical, nor a responsible expenditure of resources to require 
absolute proof that the mitigation will offset the impacts. 
Programmatically, the Corps will improve its enforcement, and 
mitigation banks and in lieu fees are an important part of that 
improved mitigation performance.
    One commenter disagreed with the Corps statement regarding the 
greater effectiveness of vegetated buffers at protecting open waters 
due to their relative proximity to open waters over those wetland 
distant to open waters. Instead, the commenter suggests that the 
relative effectiveness of vegetated buffers and wetlands at protecting 
open waters depends more on the nature of water flow through an area 
than on the proximity of the buffer or wetland to the water body.
    There is no doubt that vegetated buffers protect open waters in 
terms of removing non point source water pollution. Vegetated buffers 
also stabilize the shoreline of open waters and in most cases provide 
important aquatic habitat such as shading or providing hiding places 
during high water. The Corps believes that establishing or maintaining 
existing vegetated buffers to open waters is critical to overall 
protection of the nations aquatic ecosystems. The Corps agrees, 
however, that the relative importance of wetlands and vegetated buffers 
at any particular site is dependent on site-specific factors. This is 
why Corps field staff must have flexibility to determine appropriate 
mitigation on a site-specific basis.
    One commenter stated that vegetative buffers must not be used in 
lieu of wetlands mitigation, but there must be a preference for 
restoring, enhancing, or creating buffers as a component of appropriate 
mitigation. The commenter further stated that the Corps must require a 
minimum 100-foot-wide riparian or wetland buffer (instead of the 
proposed 25 to 50 feet), to be increased as necessary in proportion to 
the size and shape of waters they surround to obtain the desired 
performance.
    The Corps will take a watershed approach with mitigation, which 
will include vegetated buffers as a critical element of mitigation. The 
Corps must be reasonable in the width of the vegetated buffer required. 
While a wider buffer clearly provides more protection, even a narrow 
vegetated buffer provides important protection for the aquatic 
environment. In determining appropriate buffer widths, the Corps must 
balance environmental protection with what is reasonable given the 
scope of the project and the level of impacts that need to be 
mitigated.
    One commenter stated that the Corps proposal is counter to Federal 
policy and Corps guidance that favors mitigation banks in the context 
of general permitting.
    The Corps believes the proposed changes to Condition 19 are 
consistent with Corps policy. Mitigation banks are one important form 
of mitigation, but there are many others. The proposed changes will 
enhance, not limit, the opportunity to use mitigation banks by 
providing greater flexibility to Corps field staff to determine the 
most environmentally beneficial mitigation.
    One commenter expressed concern that vegetated buffer areas, 
especially non-jurisdictional habitats, used as mitigation, would not 
be afforded the same protection by existing laws as mitigation sites in 
which jurisdictional areas are created, enhanced, restored, or 
preserved.
    Vegetated buffers established or preserved in uplands are subject 
to the same protection as aquatic areas are through permit conditions. 
The Corps will generally require that all mitigation, including upland 
areas that are parts of vegetated buffers, are placed in conservation 
easements or protected in some other manner.
    One commenter recommended that the Corps only consider other forms 
of mitigation as part of an overall compensatory mitigation requirement 
once no net loss of function and acreage is obtained, and that a 
conservation easement or deed restriction be required for all such 
mitigation.
    The Corps will take a holistic watershed approach to mitigation 
without arbitrarily favoring any type of mitigation. The Corps 
biological and ecological capability in the districts will be used to 
make the best mitigation decisions.
    A few commenters disputed the appropriateness of the ``normal'' 
requirement of upland buffers as compensatory mitigation to open waters 
since it exceeds the Corps statutory authority to regulate these areas. 
A few commenters expressed concern that requiring vegetated buffers as 
mitigation may be invalid where the condition

[[Page 2066]]

bears no relationship to the impacts of the discharge on a particular 
site.
    Vegetated buffers required by the Corps as mitigation on open 
waters is within the Corps authority because they are providing water 
quality benefits to the open water areas and often the vegetated buffer 
provides aquatic habitat such as shading to maintain cool water stream. 
All mitigation, whether vegetated buffers or wetland mitigation, must 
be related to the impacts authorized. The Corps views that relationship 
in the context of the overall aquatic environment on a watershed basis.
    One commenter suggested that the Corps' advocacy of the use of 
vegetated buffers for mitigation of impacts to waters of the U.S. is an 
abandonment of a long-standing policy of ``no net loss'' and 
requirement of in-kind wetlands mitigation, and called for an adequate 
basis for this change in policy.
    The proposed modification to Condition 19 does not change the Corps 
commitment to no overall net loss of wetlands. The Corps has required 
no overall net loss of wetlands since the early 1990s and will continue 
to do so under the revised condition. The changes to Condition 19 
simply allow the Corps to make the best mitigation decision on a case-
by-case basis from a watershed perspective. Requiring one-for-one 
mitigation in every single permit does not support a watershed approach 
to mitigation because it focuses excessively on one type of mitigation. 
Although the Corps believes that flexibility is needed on a project 
specific basis to determine the appropriate mitigation, we will 
continue to ensure that the NWP Program results in no overall net loss 
of wetlands. On an individual permit basis, the Corps often requires 
greater than one-for-one mitigation on an acreage basis, due to the 
value of the replacement acreage, temporal effects and risk factors. As 
noted above, to further ensure that no net loss is achieved, we are 
establishing a requirement that all Corps districts must meet an annual 
goal of at least one-for-one wetlands mitigation on an acreage basis 
for verified nationwide permit activities within each district for each 
fiscal year. The Corps will collect information documenting compliance 
with this requirement and make it available on the internet.
    Numerous commenters agreed with eliminating the mandatory one-for-
one mitigation requirement to qualify for an NWP, stating that it would 
provide Corps with increased flexibility in determining mitigation 
requirements that may be more appropriate and environmentally 
beneficial. A couple of commenters also favored the proposed waiver 
because they believe the very low PCN thresholds for the NWPs creates 
situations where many small projects become subject to review for which 
one-to-one mitigation would be overly burdensome and impracticable.
    The Corps agrees with these comments.
    One commenter supported the proposed use of buffers as mitigation, 
but cautioned the Corps to avoid suggesting any minimum width 
prescriptions or specific replacement ratios. Another commenter 
cautioned that, in situations where less than one-for-one mitigation of 
permanent impacts to wetlands is allowed, and the establishment and/or 
preservation of vegetative buffers as mitigation is proposed, then a 
careful analysis must be conducted and include a determination of the 
function and value of the proposed vegetated buffers as compared to the 
impacted wetlands. The commenter indicated that determining the width 
of vegetated buffers is extremely subjective, and that mitigation 
containing these features should be scrutinized to ensure the vegetated 
buffers have sufficient width and length to provide habitat in and of 
themselves, not just for the waters of the U.S. they border. Another 
commenter stated that alternative mitigation measures, such as 
vegetated buffers, should be valued and compared to permitted losses 
only to the degree that they enhance or create wetland functions beyond 
what would exist without them (e.g. a 10-acre buffer placed around a 5-
acre wetland would not necessarily offset 10, or even 5 acres, of 
wetland impacts; rather, if the 5-acre wetland were improved 20 percent 
in habitat value the buffer would receive credit for mitigating only 1 
acre of wetlands impact.)
    The Corps must make its mitigation decisions based on the 
information available and based on the significant knowledge and 
understanding of the aquatic environment that the district staff of 
biologists and ecologists possess. The Corps can not always quantify 
precise offset determinations, and it would not make sense to do so in 
the nationwide permit program because project specific impacts are 
generally limited to less than one half acre, and are often one tenth 
of an acre or less.
    A few commenters agreed with using vegetated buffers as mitigation, 
but opposed using upland buffers as additional compensatory mitigation, 
suggesting that they are neither a wetland nor aquatic resource, and 
therefore it is not justifiable to include a requirement of upland 
vegetated buffers as additional compensatory mitigation. The commenters 
suggested that if the Corps normally includes a requirement for 
establishment, maintenance, and legal protection of vegetated buffers, 
then the total mitigation requirement shall not exceed that necessary 
for wetland impacts. (i.e. if total proposed wetland impacts are \1/2\ 
acre and one-for-one mitigation is required, then the total amount of 
mitigation that should be required, inclusive of any upland buffers, 
should not exceed \1/2\ acre). One commenter suggested that the Corps 
establish a maximum percentage of overall compensation that 
``alternative forms'' of compensation (such as vegetated buffers) may 
comprise.
    As stated above, the Corps is committed to a holistic watershed 
approach to mitigation and that cannot be accomplished with rigid 
quantitative requirements. The Corps regulates the entire aquatic 
environment, not just wetlands. Mitigation must consider the entire 
aquatic ecosystem as well. The Corps has and will continue to 
programmatically require greater than one-for-one acreage of wetland 
mitigation to account for differences in function and values, temporal 
losses and potential failure of mitigation. The Corps will continue to 
require greater than one-for-one acreage mitigation for wetlands 
programmatically, but some projects should not and will not require 
such mitigation, because it is not what is best for the aquatic 
environment.
    One commenter stated that upland (riparian) buffers could be used 
as mitigation for stream or other non-wetland impacts, but should not 
be allowed to compensate for wetlands. Another commenter stated that 
the use of upland buffers as compensatory mitigation is acceptable, 
provided that it is at the option of the permittee and that the amount 
of land required for mitigation is proportionate to the impacts.
    The Corps will require mitigation for permitted impacts based on a 
watershed approach and what is best for the aquatic ecosystem in that 
watershed. This approach will often involve a mix of vegetated buffers 
and other wetland mitigation. In some cases it will involve only one 
type of mitigation. In all cases, mitigation will be based on what is 
best for the overall aquatic environment in the particular watershed 
involved. The Corps always tries to ensure that mitigation requirements 
are proportionate to impacts, though the areas affected may be greater 
or less depending on site-specific circumstances.

[[Page 2067]]

    One commenter cautioned that incorporating vegetated buffers as 
mitigation measures may prove problematic, especially if a particular 
organism relies on vegetated buffer habitat that is injurious to 
another organism using the same aquatic system.
    The Corps recognizes this concern. It is one example of why the 
Corps must use its professional judgment based on a holistic watershed 
approach to determine appropriate mitigation.
    One commenter warned that, vegetated buffers present a promising 
tool with real benefits to water quality and public resource, but are 
not always compatible with existing functioning federally authorized 
flood protection systems. In some instances, they may reduce channel 
capacities and conflict with maintenance activities; in others, they 
may improve flow.
    The Corps will consider the aquatic environment and the 
practicability of requiring vegetative buffers. The Corps will not 
require vegetative buffers where it would have adverse effects on 
projects such as flood control projects.
    Several commenters stated that guidelines and clarification on the 
appropriate use of non-wetland vegetated buffers as mitigation for 
impacts to wetlands should be developed--perhaps by the Corps and other 
appropriate natural resource agencies, or through some form or 
rulemaking--prior to extending them credit as compensatory mitigation. 
A few commenters stated that the Corps should develop guidelines to 
support the need to establish buffers and standards and criteria for 
determining appropriate buffer types and widths based on intended 
benefit, adjacent land use, density of vegetative cover, etc., and that 
this documentation should be put forth for public comment. One 
commenter stated that the current guidance regarding upland vegetated 
buffers is lax, suggesting little other than prohibition of using mowed 
lawns and encouraging use of native vegetation. As such, golf course 
roughs, where the height of vegetation is actively managed, and areas 
subject to human disturbance could be proposed as compensatory 
mitigation for the loss of wetlands. Similarly, landscaped areas of 
development projects could be proposed as compensatory mitigation as 
well.
    The Corps can not establish detailed guidelines for vegetated 
buffers on a nationwide basis. No such guidance exists for wetland 
mitigation either. Such detailed guidance for wetland mitigation would 
not be sensible just as detailed guidance for vegetated buffers would 
not make sense. The Corps has adequate protections in the condition to 
ensure that vegetated buffer mitigation will be properly used by the 
districts. As stated many times above, the Corps is taking a holistic 
watershed approach to mitigation which relies on the exceptional 
expertise of our 1,150 district employees, who are predominantly 
biologists and ecologists.

Corps Preference for Restoration Over Preservation

    Many commenters stated that the preference for restoration of 
wetland impacts over preservation must be maintained. Several 
commenters indicated that restoration should be the preferred option, 
since, for certain, a net loss of wetlands will always occur when 
preservation is chosen as mitigation. One commenter stated that 
preservation does not necessarily ensure replacement of functions and 
values of lost wetlands. A couple of commenters stated that many of the 
existing wetlands that are appropriate for preservation are already 
protected by law. Therefore, preservation should only be used in 
extreme situations, such as when the wetlands are under threat or not 
afforded protection (isolated wetlands), or when the wetlands to be 
preserved are large or are of high significance. One commenter 
suggested that if and when preservation of high quality wetlands is 
preferred, it should force the project to be reviewed under an 
individual permit instead of a nationwide permit, allowing the state, 
the public and other resource agencies to review the proposed project.
    The Corps is increasingly taking a holistic watershed approach to 
mitigation of impacts in our Regulatory Program, including the 
nationwide permit program. The Corps district experts must have the 
flexibility in policy to make decisions that support a holistic 
watershed approach. Preservation is often a very important component of 
a watershed approach. Some of the most important and high functioning 
wetlands are potentially subject to many activities that are not 
regulated by the Corps or any other governmental body. Therefore, 
absent the protection by preservation of these high value areas through 
mitigation they will be degraded over time. Restoration is the main 
method of mitigating impacts to the aquatic environment permitted by 
the Corps and it will continue to be the primary mitigation approach. 
The Corps has slightly modified the wording in paragraph (c) of this 
general condition from what was proposed to clarify that this 
preference for restoration applies regardless of what wetlands 
mitigation ratio is required at a specific site.
    However, preservation is also a very important tool in the Corps 
ability to mitigate impacts on a holistic watershed basis. Protection 
of the aquatic environment through preservation of high value aquatic 
areas is critical to protecting the nation's aquatic ecosystems. The 
view that preservation is not appropriate because the areas are not 
``new'' is shortsighted and has proven to be mistaken because of the 
significant impacts to wetlands that are not protected through 
preservation, particularly when the preservation includes adjacent 
uplands and open waters as a preserved matrix of environmental assets 
that work together to produce high value habitat. However, the Corps 
recognizes that preservation does not provide new acres and thus cannot 
compensate for wetlands loss on an acreage basis. As noted above, the 
Corps will instruct district offices not to include preservation in 
their documentation of compliance with the minimum one-for-one district 
level mitigation requirement.
    A few commenters stated that preservation of wetlands is preferable 
to restoration. The evolving emphasis on watershed assessment and 
protection underscores the need and importance of preserving aquatic 
ecosystems. One commenter pointed out that if sites are established, 
and functioning well, it would appear that preserving them should be 
critical in attempts to maintain the present and future value of 
wetlands. If vegetated buffers, or the enhancement of uplands, 
adjoining wetlands are important enough to be considered as mitigation 
credit, then preservation of existing wetlands adjacent to a mitigation 
site should be at least similarly credited.
    We agree with these commenters to the extent that they identify the 
importance of a holistic approach to mitigation. However, as noted 
above, restoration will continue to be the primary mitigation approach, 
and preservation will not be counted in the district-level one-for-one 
mitigation requirement.
    One commenter opposed the use of preservation of onsite avoided 
wetlands or wetland buffers as compensatory mitigation since it credits 
the avoidance of impacts, which is the first step in mitigation 
sequencing, a second time in the form of compensation for unavoidable 
impacts. The commenter did state that off-site preservation was 
acceptable, however, since it did not conflict with the on-site 
mitigation sequencing process.
    Whether the Corps requires preservation and gives project-level 
mitigation credit for onsite or offsite

[[Page 2068]]

preservation depends on the size, functional value and relationship of 
the area to other aquatic areas. For example, preservation of an 
extremely high value wetland on the border of a permitted development 
site where that high value wetland is part of a larger high value 
wetland system is a very positive mitigation approach in terms of 
holistic watershed protection of the aquatic environment, particularly 
if it increases the chances that the entire system will be preserved. 
On the other hand, preservation of a small moderate value wetland that 
will be surrounded by paved parking areas and may lose its hydrology 
because of overall site development may not make environmental sense, 
on-site or off-site.
    Several commenters stated that there should be no established 
Federal preference of either restoration or preservation, and both are 
equally appropriate. One commenter suggested that a preference for 
restoration over preservation could result in an opportunity to 
preserve a highly functioning wetland being overlooked. Other 
commenters urged greater acceptance of preservation when the area to be 
preserved is of high value, subject to significant impacts, and 
included in a wider planning framework, and restoration/creation are 
not feasible and wetlands are in abundance, locally, compared to other 
important resources. Several of the commenters stated that the decision 
to use either preservation or restoration (or a combination of the two) 
should be flexible and left up to the individual Corps Districts to 
decide on a case-by-case, local or watershed basis, depending on which 
type would be most appropriate.
    We agree with these commenters.
    One commenter stated that there should be guidance showing the need 
for preservation before it is used over any other type of mitigation 
for wetland losses.
    This does not support the holistic watershed approach the Corps is 
working to establish, and would not be a good use of Corps resources. 
We want Corps districts to focus their limited resources on what makes 
sense for the aquatic environment in a particular watershed.
    One commenter stated that the use of either preservation or 
restoration is contrary to the ``no net loss'' policy and the goal of 
the CWA to restore and maintain the physical, chemical and biological 
integrity of the Nations waters. The General Condition should require 
that project impacts be fully offset unless the applicant demonstrates 
that full offset is impracticable. At a minimum, mitigation must offset 
all impacts that are more than minimal, both individually and 
cumulatively.
    The Corps has and will continue to require mitigation that is 
necessary to reduce project impacts to the minimal adverse effect 
level. The Corps will continue to meet the no overall net loss goal for 
wetlands because most wetland mitigation is at a greater than one for 
one acreage basis to ensure that the functional impacts authorized are 
offset by the mitigation. In addition, districts will be required to 
document at least one-for-one mitigation at the district level.
    One commenter stated that the preference for restoration over 
preservation affects the entire Section 404 program and the preamble of 
the NWPs is not the appropriate forum to discuss and change that 
policy.
    The Corps does not agree that it is inappropriate to discuss this 
policy, as it relates to the implementation of the NWP program. The 
Corps is not proposing to change this policy. The preference for 
restoration over preservation is preserved in the language of paragraph 
(c) of GC 19.

Mitigation Bonding

    Several commenters stated that unless a comparable bonding program 
exists within the Districts, bonding of mitigation measures under NWPs 
should be established that obligate a permittee to complete the 
mitigation, bond the mitigation activity and success period, and allow 
the Corps to execute the bond in the event of forfeiture.
    The Corps is currently reviewing guidance which addresses bonding 
and otherwise protecting mitigation sites and ensuring they will be 
successful. The principles in that guidance will apply to the 
nationwide permit program. Bonding is just one tool available to the 
Corps in its efforts to ensure that required mitigation is established 
and is successful.

Other Comments on General Condition 19

    Several commenters suggested the Corps should require natural 
resource agency review of all mitigation plans, especially mitigation 
proposing the use of vegetated buffers. One commenter requested 
rewording of General Condition19c to read* * *'' unless the District 
Engineer determines [in consultation with the appropriate natural 
resource agencies through a PCN coordination process such as that 
described in General Condition 13,] that some other form of mitigation* 
* *''
    The Corps does not agree. We believe that such a change would 
result in excessive review that would not result in benefits for the 
aquatic environment. The commenting agencies do not have the staff 
necessary to evaluate all such projects either. The Corps has the 
technical expertise and capability to make these determinations. Where 
appropriate, the Corps does and will continue to consult with other 
agencies.
    Many commenters stated that numerous studies from around the 
country, including recent studies conducted by the National Academy of 
Science and General Accounting Office, showed that mitigation is not 
fully successful, and does not compensate for wetlands lost to 
permitted fills. Therefore, reducing mitigation requirements that 
already aren't working is unsupportable.
    The Corps is not reducing the mitigation requirements necessary in 
the nationwide permit program. The requirement remains that mitigation 
adequate to ensure no more than minimal adverse effects on the aquatic 
environment will be required. The Corps agrees with the NRC/NAS report 
that we must improve the success of mitigation. One method the Corps 
has used, and will continue to use, to deal with the failure of some 
mitigation is higher ratios of mitigation for most impacts. 
Consolidating mitigation into larger sites through mitigation banks, in 
lieu fees, and other large mitigation areas as well as protecting a 
matrix of environmental assets in mitigation areas including wetlands, 
open waters and uplands will also serve to improve mitigation in the 
long term.
    Several commenters indicated that the Corps must improve data 
collection from mitigated projects and reporting cumulative wetland 
losses to evaluate and ensure that impacts to waters of the US have 
been minimized and the goals of the program achieved.
    We agree that we need to improve our data collection and tracking 
of mitigation and will soon bring a new data system on line to 
facilitate such tracking. By better documenting the mitigation 
requirements included in NWPs and tracking the fulfillment of these 
requirements, the Corps will better ensure that the impacts authorized 
are offset to the level that no more than minimal adverse effects will 
result.
    One commenter stated that the proposal continues to elevate one 
form of mitigation--compensation--above all others by automatically 
requiring that type of mitigation in every instance. Thus, the program 
fails to consider whether avoidance and/or minimization has been 
sufficiently incorporated into a project to the maximum extent 
necessary to ensure that adverse effects

[[Page 2069]]

to the aquatic environment are minimal. Then, in a gesture toward 
easing the burden of compensatory mitigation, the Corps allows 
different types of compensation, such as vegetated buffers, to be used 
in lieu of providing one-for-one wetlands compensation. The Corps 
should treat ALL forms of mitigation uniformly, not just all forms of 
compensation, especially those such as the use of upland buffers which 
are not subject to regulation or jurisdiction. This omission removed 
any incentive to incorporate avoidance and minimization efforts. The 
Corps is urged to remove preferential treatment given to compensatory 
mitigation, over avoidance and minimization, by deleting all mandatory 
compensation requirements.
    We disagree with these comments because deleting all compensatory 
mitigation requirements would substantially reduce protection of the 
aquatic environment by reducing mitigation, much of which is very 
successful. The Corps will instead take a watershed approach to 
mitigation, as discussed above.
    One commenter stated the acreage of fill placed in waters of the 
U.S. to construct compensatory mitigation must be included in the 
calculation of acreage and impacts. These fills should not be 
discounted, because compensatory mitigation does not always succeed, 
and can result in the conversion of one type of water of the U.S. to 
another.
    The Corps considers the overall impacts of a proposed project. Fill 
in waters of the US involved with mitigation projects is very small in 
volume in essentially all cases. If there were a case where potentially 
substantial impacts would be involved in the mitigation project the 
Corps will consider that impact. However, the acreage used to construct 
compensatory mitigation projects is not counted in the acreage limit of 
the NWPs.
    A few commenters stated that in-kind mitigation must be mandatory 
for all unavoidable impacts to wetlands, non-wetland aquatic habitats, 
and terrestrial habitats.
    We disagree. The Corps will take a watershed and holistic approach 
when requiring mitigation.
    A few commenters stated that mitigation ratios recommended by EPA 
Region 4 must be adopted as the absolute minimum ratios for wetland 
mitigation.
    The Corps disagrees with nationwide mandatory ratios on a permit-
specific basis although, as noted above, ratios exceeding one-for-one 
are often required. The underlying requirement for mitigation in the 
nationwide permit program is that the mitigation reduces the permitted 
adverse effects on the aquatic environment to the minimal adverse 
effect level.
    A few commenters stated that there should be a requirement for 
detailed mitigation plans as part of each PCN, which at a minimum 
identify specific mitigation sites, detailed mitigation development/
management plans, assurances against mitigation failure; success 
criteria, detailed monitoring plans, details of protection afforded to 
guarantee functions replaced by the mitigation will be protected and 
maintained in accordance with objectives, and identification of the 
party responsible for the mitigation.
    We believe we have required the proper level of documentation for 
PCNs submitted to the Corps. If the Corps determines on a case by case 
basis that additional information is necessary to ensure that any 
permitted impacts will be offset by mitigation the district can require 
such information.
    Several commenters stated that mitigation buy downs to meet the 
404(e)(1) minimal effects requirement should be prohibited in the 
context of NWPs. A couple of commenters questioned the capability of 
any type of mitigation to compensate for the complete loss of an 
aquatic environments. One commenter pointed out that there is 
significant scientific evidence, the validity of which is recognized by 
the Corps and other federal agencies,which shows that wetlands 
mitigation often fails, meets mixed success, or does not replace lost 
functions/values. Thus, mitigation cannot assure minimal effects. The 
commenter adds that if minimal effects are not achieved through the use 
of NWPs, then their use should be prohibited since they cannot satisfy 
the CWA's requirement of minimal cumulative adverse effects. One 
commenter suggested that any activities having adverse impacts 
sufficient to warrant compensatory mitigation be converted to an 
individual permit. However, another commenter stated that some 
compensatory mitigation plans which have been reviewed under individual 
permit public notice were inappropriate for the resources lost, and 
would not adequately replace lost functions and values, and therefore 
they see no reason to believe that compensatory mitigation proposed for 
NWPs--which lacks public review and agency comment--would be any 
better.
    The Corps understands that some mitigation projects fail. We are 
working to improve the success of mitigation we require. The test for 
mitigation for adverse effects on the aquatic environment under the 
nationwide permit program is to ensure no more than minimal adverse 
effects after considering the required mitigation. For general permits, 
by regulation, impacts to the aquatic environment are to be avoided to 
the extent practicable on the project site. These regulations are not 
being changed. General Condition 19 deals with mitigation when it is 
required, after impacts to aquatic areas have been avoided to the 
extent practicable.
    One commenter suggested that language regarding compensatory 
mitigation be narrowed to prevent its use in open water habitats in 
navigable public waterways. The commenter states that there is an 
unwarranted assumption that compensatory mitigation can be relied on to 
compensate for alteration or destruction of naturally occurring aquatic 
ecosystems, including open waters. The commenter adds that habitats 
should not be tradeable; each is unique and artificial habitats are not 
as good as the real thing. Eliminating open water by constructing 
wetlands or altering the habitat as mitigation can destroy species 
which are dependent upon open water.
    These comments identify one of the many reasons that the Corps is 
changing its approach in Condition 19 to more effectively allow the 
Corps expert biologists and ecologists to make project specific 
decisions on impacts to be authorized and mitigation that will be 
required.
    One commenter suggested that NWPs should require mandatory 
mitigation for all unavoidable impacts to non-wetland aquatic habitats 
and to terrestrial habitats since these areas have significant 
ecological value as do wetlands.
    The Corps regulates the aquatic environment not uplands. We may 
require upland vegetated buffers as mitigation to the extent the 
vegetated upland buffers to open waters protect or enhance aquatic 
functions and habitat. The Corps agrees we need to more effectively 
mitigate impacts permitted to waters other than wetlands. That is 
precisely why the Corps is modifying Condition 19 to allow flexibility 
in mitigation decisions that are holistic and take a watershed 
approach.
    One commenter stated that the Corps should emphasize the importance 
of accurate assessments and expressly indicate whether it has taken 
into account new data on mitigation methods.
    The Corps continually works to improve its mitigation approaches at 
the Corps district level. The Corps districts are where the local 
technical expertise

[[Page 2070]]

resides and they continually adjust the program based on new 
information.
    One commenter stated that the Corps should reassert its policy and 
preference of utilizing mitigation banking versus in-lieu-fee or other 
types of compensation for mitigation in the context of General permits.
    The Corps needs to use all mitigation options in its tool box, 
including mitigation banks and in lieu fees. These methods are 
extensively used and will continue to be extensively used because they 
are effective and simple for the applicant.
    One commenter stated that mitigation bankers acknowledge financial 
considerations and not always ecological considerations in locating 
mitigation banks. This does not ensure that functions and values lost 
within a local watershed will be replaced, a fact acknowledged by the 
Corps in the last version of the NWPs--mitigation banks are usually 
constructed and maintained by entrepreneurs, who locate mitigation 
banks in areas where they believe the established credits will sell 
quickly''.
    The Corps requires mitigation that will offset the permitted 
adverse effects on the aquatic environment. The Corps identifies 
service areas for mitigation banks based on reasonably focusing 
mitigation in watersheds where impacts are permitted. We will continue 
to approve mitigation bank service areas in a manner that recognizes 
the need to offset impacts in the same watershed to the extent 
practicable. The fact that mitigation banks are designed to be 
financially successful does not mean that they will not also be 
ecologically successful. On the contrary, ecological success is a 
prerequisite for financial success.
    One commenter stated that the Corps should prohibit the use of in-
lieu-fee mitigation since it does not ensure no net loss of wetlands, 
and at best may provide some protection for existing wetlands. The time 
constraints of the review and approval process for NWP's limits 
adequate analysis of this type of mitigation. In the absence of 
meaningful resource agency and public review, in-lieu-fee mitigation is 
not consistent with the goals of the CWA of ``restoring/maintaining the 
chemical, biological * * *''
    This commenter appears not to understand in lieu fee programs 
approved by the Corps. The majority of in lieu fee mitigation involves 
some type of restoration, creation or enhancement of aquatic areas. 
Some of the mitigation is preservation, but not all mitigation under in 
lieu fees involves only preservation. In lieu fee arrangements are 
getting better as time goes forward. The GAO report that raised 
concerns about the Corps use of in lieu fees was incomplete in that it 
limited its in lieu fee program analysis to in lieu fees programs that 
were in place as of 1997, when the approach was still very new. 
Substantial improvement has occurred since 1997 in the Corps use of in 
lieu fees.
    One commenter objected to any changes and additions to mitigation 
requirements after the environmental documents have been completed and 
a Record of Decision issued, stating that it is a violation of 
Congress' mandate for streamlining as well as a violation of NEPA and 
should be prohibited in the permitting process.
    The environmental documentation will be finalized as we issue the 
nationwide permits in final form. No changes to the new permits will 
occur after that, unless they are revised or reissued following 
opportunity for public comment.
    One commenter indicated that offsite mitigation greatly reduces 
overall aquatic habitat quality and natural functioning. Mitigated 
wetlands have been demonstrated time after time to ``show a decrease in 
native plant species diversity'', and are ``not functionally equivalent 
to reference sites'' in terms of ``flood retention, water quality 
improvement and habitat provision.''
    The Corps will take a holistic watershed approach to mitigating 
impacts permitted. Onsite mitigation is typically best for water 
quality measures including vegetated buffers and stormwater management. 
However, onsite mitigation for loss of habitat, such as wetlands is 
usually less preferable to offsite. Moreover, consolidated mitigation 
such as that in mitigation banks and in lieu fee operations is 
generally more successful than project specific mitigation. All of 
these principles are consistent with the findings of the recently 
issued NRC/NAS report. In fact, the changes to General Condition 19, 
are intended to facilitate the adoption of some of the report's 
recommendations, by moving toward a watershed approach.
    One commenter objected to the use of in-lieu-fee agreements for 
compensatory mitigation, especially in areas where land prices are high 
and in-lieu fees low. Money must sit in an account for many years 
before any use can be made of it, while the nation suffers temporal 
loss of wetlands and the in-lieu-fee cannot provide adequate 
compensation.
    The Corps is improving its in lieu fee arrangements to ensure that 
ecological mitigation will occur within 2 years of accepting funds from 
permittees.
    A commenter stated that mitigation should be required for any 
length of piping or filling of streams covered by NWP. The US has lost 
thousands of miles of headwater and streams from the landscape. It is 
time to recognize the ecological services provided by these ecosystems 
[in addition to wetland].
    The proposed changes to General Condition 19 are specifically 
designed to improve our ability to consider and properly mitigate 
impacts to streams. We agree that too often in the past stream impacts 
may have been overlooked. Decisions on the level of mitigation required 
by the Corps will be made on a case-by-case basis by the Corps 
districts.
    The General Condition is adopted with the wording clarifications 
discussed above.
    20. Spawning Areas. There were no changes proposed to this General 
Condition. However, one commenter recommended that the statement 
``important spawning area'' should be rewritten to say ``spawning areas 
that support federally-listed or special status fish''. Another 
commenter agreed that this General Condition 20 is acceptable but 
stated that it would not sufficiently protect the areas intended. This 
commenter suggested that discharges into spawning areas should be 
prohibited year round and not just during spawning season. The 
commenter requested that the second paragraph, which states 
``Activities that result in the physical destruction of an important 
spawning area are not authorized'' be changed to ``Activities that 
could result in the physical destruction of an important spawning area, 
up or downstream, are not authorized''.
    We disagree with these comments. It is not appropriate to narrow 
this condition to cover only Federally-listed or special status fish. 
General Condition 20 prohibits the physical destruction of important 
spawning areas. However, it does allow temporary effects provided they 
occur outside of the spawning season. We believe this adequately 
protects such spawning areas and ensures that there will be no more 
than minimal adverse effects on the aquatic environment, individually 
and cumulatively.
    The General Condition is adopted without change.
    21. Management of Water Flows. The Corps proposed to revise the 
wording of this General Condition to clarify that normally detailed 
studies and monitoring would not be required, but may be required in 
appropriate cases. Several commenters agreed with the proposed 
clarification. One commenter

[[Page 2071]]

supported the clarification but believed the Corps is exceeding its 
authority by regulating water flow and suggested the Corps delete the 
requirement to maintain preconstruction flow or clarify how compliance 
with this requirement will be judged. A few commenters opposed the 
proposed clarification because without flow information it will be hard 
to determine if the impacts are only minimal to the aquatic 
environment, including indirect impacts. One commenter recommended that 
each applicant be required to submit a written description of how the 
requirements of General Condition 21 will be met. One commenter 
suggested that General Condition 21 should state that the Corps defers 
to state and local authorities when local regulations are in place.
    Authorized activities or improvements to aquatic systems typically 
will cause deviation from pre-construction flow conditions. NWPs 
authorize only those activities that will have no more than 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. Compliance with state and 
local flow management requirements, where these exist, is usually 
sufficient to satisfy this General Condition.
    The General Condition is adopted as proposed.
    22. Adverse Effects from Impoundments. There were no changes 
proposed to this General Condition. One commenter stated that impacts 
associated with impoundments result in more than minimal impacts, 
should be evaluated as an individual permit, and General Condition 22 
should be deleted.
    We disagree. Some small impoundments do not result in more than 
minimal impacts. However, where they do result in more than minimal 
adverse effects to the aquatic environment, individually or 
cumulatively, an individual permit will be required.
    The General Condition is adopted without change.
    23. Waterfowl Breeding Areas. There were no changes proposed to 
this General Condition. Two commenters suggested this condition be 
amended to prohibit discharges into breeding areas for migratory 
waterfowl as well as other migratory birds.
    The Corps believes this would place an unreasonable and overly 
restrictive limitation on this NWP and that the condition, as worded, 
provides sufficient protection of aquatic resources.
    The General Condition is adopted without change.
    24. Removal of Temporary Fills. There were no changes proposed to 
this General Condition. One commenter suggested this condition be 
amended to require any temporary fills be removed in their entirety and 
affected areas returned to their preexisting elevations immediately 
upon removal of the fill.
    The condition as stated requires that the affected area be returned 
to preexisting elevation concurrent with the removal of the fill. We do 
not agree that this condition should require immediate restoration in 
all cases. Corps districts can add a time period for when the 
restoration to preexisting elevations should take place, when 
necessary.
    The General Condition is adopted without change.
    25. Designated Critical Resource Waters. There were no changes 
proposed to this General Condition. One commenter in favor of General 
Condition 25 suggested it be amended to include ``source waters used 
for drinking water or ground water recharge'' in the definition of 
``critical resource waters''. The commenter added that there should be 
no provision for discretionary authority for discharges of dredged or 
fill material into designated critical resource waters or wetlands 
within the NWP program.
    Concerns regarding impacts to sources for drinking water and ground 
water recharge are more appropriately addressed through regional 
conditioning of the NWPs or case-specific review of PCNs for specific 
and identified waters. Division engineers can regionally condition the 
NWPs to prohibit or limit their use in such high value waters. District 
engineers should continue to exercise discretionary authority and 
require individual permits for activities proposed in such valuable 
waters when they will result in more than minimal adverse effects on 
the aquatic environment.
    One commenter recommended that the Corps exempt utility activities 
within designated critical resource waters affecting \1/2\ acre or less 
from the prohibition in General Condition 25 because utility projects 
have only minimal impacts and should be allowed under NWP 12 without 
requirement of notification or consultation.
    While utility line activities that comply with NWP 12 normally do 
have no more than minimal adverse effect on the aquatic environment, 
individually and cumulatively, we remain concerned that this will often 
not be the case in designated critical resource waters. Therefore, 
unless there is evidence to the contrary, we believe that the 
restriction on NWP 12 should remain.
    One commenter recommended the title of General Condition 25 be 
changed to ``Critical Resource Waters''. The commenter also recommended 
that the condition be changed to read ``Discharges within or affecting 
Critical Resource Waters, including wetlands adjacent to those waters, 
are not authorized under the NWP program except as specified in 
National Wild and Scenic Rivers, provided that the activity complies 
with General Condition 7''.
    The Corps does not agree with the suggested title change. In order 
to apply this condition to critical waters those waters need to be 
designated so the Corps and the public know where the condition is 
applicable. The Corps continues to believe that an activity can occur 
in designated critical habitat if it is compliance with the Endangered 
Species Act.
    The General Condition is adopted without change.
    26. Fills Within the 100-year Floodplain.
    The Corps proposed to delete the ``notification'' requirement, to 
delete the requirement to document that the project meets Federal 
Emergency Management Agency (FEMA) approved requirements and to modify 
the condition to require that all projects authorized by the NWPs must 
comply with any applicable FEMA approved state or local floodplain 
management requirements. In addition, we proposed to remove the 
prohibitions in paragraphs 26(a) and 26(b) for NWPs 12, 14, and 29, and 
the prohibition in 26(b) for NWP 43. We also requested comment on 
allowing projects to proceed under this condition below the headwaters 
where the project provides additional flood storage.
    Many commenters supported the Corps proposal to remove the 
notification requirement and the requirement to document that the 
project meets FEMA approved requirements for fills within the 100-year 
floodplain. One commenter stated that this revision would reduce

[[Page 2072]]

redundancy since they must comply with E.O. 11988 for all structures 
associated with roadway construction and routinely provide 
documentation to federal and state agencies for review. A few 
commenters stated that the Corps is beyond its statutory authority and 
the existing documentation requirements have done nothing to affect 
compliance with FEMA approved floodplain management requirements. One 
commenter recommended that the Corps delete the notification 
requirement for NWP 12.
    The Corps continues to believe that the notification should be 
removed from this condition. We agree that this change would reduce 
some paper work redundancy at various levels of government while 
retaining the restrictions on floodplain development. We agree that the 
notification requirement for NWPs under this condition, including NWP 
12, should be removed.
    Many commenters objected to the change. One commenter stated that 
documenting compliance with FEMA approved requirements is very 
important and strong motivation for ensuring that projects meet local 
floodplain regulations.
    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 ALL permittees comply with FEMA 
approved requirements will be just as effective.
    One commenter stated that the Corps added additional wording 
without providing proper notice in the preamble of the notice and 
failed to provide the legally required explanation for their action. 
Specifically, the first sentence of the current General Condition 26 
states that, ``For purposes of this General Condition, 100-year 
floodplains will be identified through Federal Emergency Management 
Agency's (FEMA) Flood Insurance Rate Maps or FEMA-approved local 
floodplain maps'', and the first sentence of proposed General Condition 
26 states that, ``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.
    The word ``existing'' was addressed and discussed in the preamble 
of the March 9, 2000, NWPs. The word ``existing'' was placed in the 
proposed NWPs to clarify questions raised by Corps personnel and the 
public.
    One commenter stated that the Corps should not rely on often out-
of-date and inaccurate floodplain maps and suggested that General 
Condition 26 should apply to all 100-year floodplains, including those 
not mapped by FEMA. One commenter requested clarification where no FEMA 
floodplain maps exist. One commenter suggested that where no FEMA maps 
exist, permits should require applicants to obtain a determination from 
a registered hydrologist that their project is not within the 100-year 
floodplain.
    To effectively implement the requirements of this General Condition 
and to be consistent with other Federal programs, 100-year floodplains 
will be identified through the latest Flood Insurance Rate Maps (FIRMs) 
published by FEMA or FEMA-approved local floodplain maps. We believe 
that these maps are adequate for the purposes of this General 
Condition. Further, utilizing existing FIRMs and FEMA-approved local 
floodplain maps eliminates the additional burdens on local governments 
or landowners that existed in the proposed condition. If there are no 
FIRMs or FEMA-approved local floodplain maps available for the area 
where the proposed work is located, then the requirements of this 
General Condition do not apply. In such cases, the Corps will still 
consider the impacts of proposed projects through the PCN review 
process. In addition, we believe that the prospective permittee should 
not routinely be required to incur the cost of having a licensed 
professional engineer or hydrologist certify whether or not the 
proposed work is within a 100-year floodplain, particularly considering 
the very small scale of many permitted projects. Where appropriate, the 
District Engineer can require additional documentation on a case-by-
case basis.
    Several commenters agreed with the Corps proposal allowing DE's the 
discretion to approve projects in the floodplain below the headwaters 
where the project could improve flood storage. One commenter agreed 
provided the project complies with FEMA approved requirements. One 
commenter stated that floodplains are the best sites for creating 
stormwater management facilities. One commenter agreed and stated that 
these types of activities and facilities authorized under NWP 43 
increase floodplain capacity. One commenter suggested that if NWP 43 is 
not removed from part (b) of General Condition 26, the DE should be 
authorized to waive this restriction on a project specific basis. One 
commenter requested that the Corps define increased flood storage. One 
commenter agreed with the Corps observation that some activities 
authorized by NWP 39, 40, and 42-44 provide additional flood storage 
capacity and recommends that such projects below the head waters should 
be allowed to proceed even if they result in permanent above grade 
fills.
    The Corps has decided not to make this change at this time. We need 
to consider the specific language that would be needed to effectively 
implement this option. If we can develop acceptable language, we will 
consider proposing such a provision for public notice and comment.
    A dozen or so commenters objected to the Corps proposal to remove 
NWP43 from part (b) of General Condition 26. A couple of commenters 
stated that the proposal could result in unacceptable threats to life 
and property. One commenter stated additional case-by-case review will 
increase workload. The commenter requested our rationale for 
considering that NWP 43 projects such as golf courses could provide 
additional flood storage. One commenter cited that other public 
interest factors should be evaluated, which highlights the need for 
completing a comprehensive PEIS. One commenter stated that the change 
was made without discussing it in the preamble and with no explanation 
supported by substantial evidence. This commenter requested that the 
Corps place NWP 43 back into part b of General Condition 26. One 
commenter stated that while providing additional flood storage is 
generally beneficial, there may be situations where such actions could 
cause adverse hydraulic or other impacts on the floodplain and increase 
risk of damage to existing floodplain properties. The commenter 
suggests that the Corps allow discretion on these projects only if the 
action is in furtherance of a local stormwater or watershed plan that 
has already assessed the hydrologic and hydraulic and other impacts of 
the action. One commenter stated the prohibitions of General Condition 
26(a) and (b) do not allow for NWP 43 to be authorized in a floodplain 
but does allow projects to be authorized in a floodway. The commenter 
requested further clarification and explanation.
    We are keeping the prohibition on the of NWP 43 in the floodplain 
below the headwaters. However, allowing NWP 43 to be used for projects 
above the headwaters but keeping them out of the floodway would be 
counterproductive. We believe that above the headwaters the only 
feasible alternative will often be to place them in the floodway. 
General Condition requires that the project avoid and minimize impacts 
to

[[Page 2073]]

waters. For stormwater management facilities this means keeping them 
out of the waters and the floodway, if practicable. Since the purpose 
of stormwater management facilities is to minimize flooding impacts, 
when they must be located in the floodway, there is no value added to 
the aquatic environment by requiring a more costly and lengthy 
individual permit process.
    One commenter suggested that parts (a) and (b) of General Condition 
26 should be removed because the requirements in pact (c) that the 
applicant must comply would be a sufficient safeguard. A few commenters 
stated that General Condition 26 should be removed because it is a 
duplication of activities regulated by local floodplain administrators. 
One commenter stated that the 100-year floodplain restrictions have 
increased the time required for reviewing small projects and leave the 
Corps less time and resources to focus on projects that may have 
significant impacts.
    We continue to believe that the NWPs listed in General Condition 
26(a) and (b) need to be restricted in the flood plain. This provides 
an added measure of protection of floodplains beyond that in paragraph 
26(c). There has been some increase in workload due to the general 
condition. We believe that the adopted modifications to this General 
Condition will reduce that workload somewhat, which will allow the 
Corps to focus those resources on areas where the Corps can provide 
added protection to the aquatic environment.
    One commenter stated that General Condition 26 is unnecessary and 
duplicative of existing FEMA requirements and would like the Corps to 
provide any data to show any correlation between wetlands loss and 
flooding. One commenter suggested that the Corps delete General 
Condition 26 for all permits and retain the flexibility to authorize 
all projects resulting in minimal adverse effects to proceed under 
NWPs, regardless of where those waters are located within the 
landscape. The same commenter recommended that any project located 
within a floodplain that meets FEMA requirements and the minimal impact 
test should be allowed to proceed under a NWP. One commenter stated 
that General Condition 26 is redundant and believes that the ban on 
permanent fills should not extend to all waters, specifically ephemeral 
streams above headwaters.
    We agree that we are using the FEMA requirements that are applied 
to flood insurance programs for projects that occur in the flood plain. 
To this extent General Condition 26 is somewhat duplicative with that 
program. However, we believe that General Condition 26 plays an 
important role in reinforcing the FEMA program to minimize impacts to 
flood plains.
    Several commenters objected to the changes to General Condition 26 
and some commenters requested that the Corps retain General Condition 
26 without any changes. A couple of commenters stated that the Corps 
must consider other aspects of flood plains such as water quality, 
ground water recharge, fish, wildlife, plant resources, and open space. 
Several commenters objected to development within 100-year flood plain. 
A couple of commenters objected to development within the floodplain. 
One commenter stated that the proposal would no longer discourage above 
grade fills with the floodplain. One commenter suggested that NWPs 
should not be used in counties designated as federal flood hazard areas 
at least once in the past 10 years. One commenter objected to the use 
of NWP 39, 40, 42, 43, and 44 within the 100-year floodplain. One 
commenter suggested that NWPs located within a floodplain should be 
required to demonstrate that the project is essential and has no 
alternative, the public should be able to comment on these types of 
projects, and they should be reviewed as an individual permit. One 
commenter stated that FEMA approved requirements are inadequate in many 
locations. A hand full of commenters suggested that the Corps should 
not allow the use of expedited permits for any filling activities in 
the entire 100-year floodplain.
    We are very concerned with the loss of life and property resulting 
from unwise development in the floodplain. The Corps has recently 
advocated the strengthening of floodplain policy and the use of non-
structural measures to reduce flood damages. We believe that the 
changes to the NWP program published today and two years ago will play 
an important role in reducing damages associated with development in 
the floodplain. Specifically, we are now requiring that ALL projects 
comply with FEMA approved state and local floodplain management 
requirements. We will monitor carefully the effectiveness of the new 
floodplain condition to ensure that it has the intended impact on 
reducing floodplain development.
    A couple of commenters agreed with the Corps proposal to remove the 
prohibitions of General Condition 26 (a) and (b) from NWP 12, 14, and 
29. One commenter suggested that part (b) of General Condition 26 
should be changed to allow the use of NWP 39, 40, 42, or 43 with a PCN 
requirement. A few commenters suggested that the Corps retain 
prohibitions of General Condition 26 (a) and (b) for NWPs 12, 14, 29. 
One commenter objected to removing the prohibitions because it will 
increase damage and destruction of aquatic habitat and should not be 
permitted. A few commenters agreed with the Corps proposal to remove 
the prohibitions of General Condition 26 (a) and (b) from NWP 12 and 
14. One commenter recommended that the prohibitions of General 
Condition 26 (a) and (b) should be retained for NWP 29 because local 
FEMA authorizes can come under tremendous pressure to stretch the 
regulations for certain projects. One commenter agreed with the Corps 
proposal to remove the prohibitions of General Condition 26 (a) and (b) 
from NWP 12 but wants to keep the prohibitions for NWP 14 & 29. The 
commenter stated that homes and other structures create a potential for 
increased downstream flooding due to floodplain storage capacity and 
transmission line projects occupy very little volume of the 100-year 
floodplain and would have only a minimal effect on floodplain storage 
capacity. One commenter suggested reducing the PCN requirements and 
raising the acreage thresholds for NWP 12. Numerous commenters objected 
to the removal of the prohibitions of General Condition 26(a) and 26(b) 
from NWP 29. A couple of commenters objected because it could result in 
unacceptable threats to life and property. A couple of commenters 
objected because it will have long-term negative consequences, 
including the potential to heighten downstream flooding. One commenter 
stated that the removal will make it easier to build homes and 
developments in floodplains, will place families at greater risk, and 
cost taxpayers for the inevitable cycle of flooding and rebuilding. A 
couple of commenters suggested that NWP 12 and 29, in light of the 
requirements of General Condition 21, continue to be subject to all of 
the limitations in General Condition 26. Given that these permits are 
subject to General Condition 21, the commenters stated concerns that 
improper use of these permits could adversely impact flooding, because 
linear projects are likely to obstruct flood flows while single-family 
housing can result in cumulative losses of flood storage. Both 
commenters stated that if the Corps removes the prohibition of General 
Condition 26(a) and (b) from NWP 12 and 29, the Corps should closely 
monitor activities authorized under these permits over time to ensure

[[Page 2074]]

that cumulative impacts on flooding are in fact minimal.
    The Corps believes that it is appropriate to remove NWPs 12, 14 and 
29 from the prohibition below headwaters and retain the prohibition for 
NWPs 39, 40, 42, 43, and 44. The permanent above grade fill authorized 
by these NWPs are small and do not occur very often especially in the 
same watershed. Furthermore, these activities must comply with the 
applicable FEMA approved requirements. We believe that activities 
authorized by these NWPs that are in full compliance with FEMA approved 
requirements will have no more than minimal impacts on the flood plain.
    The General Condition is adopted as proposed.
    27. Construction Period.
    We proposed 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 will 
allow the Corps to establish project completion dates beyond the 
expiration of the NWPs.
    Several commenters stated that they are in favor of this new 
condition. Some commenters suggested that this condition be applicable 
to all permit authorizations that are currently in effect including 
activities, which were authorized under NWP 26 and are still under the 
grandfather rule, and the District Engineer should be urged to 
authorize extensions providing conditions have not changed 
substantially. One commenter in favor of General Condition 27 requested 
that the Corps revise the condition to have a definite extension period 
and remove the language ``reasonable period''. One commenter in favor 
of General Condition 27 suggested that it be amended specifically to 
include an extension of the completion date for multi-phase linear 
transportation projects that have been verified and the extension 
request should be submitted 30 days prior to the previously approved 
completion date. One commenter suggested that the life of the permit be 
extended instead of adopting General Condition 27. One commenter stated 
that General Condition 27 will reduce protection for listed species and 
critical habitat. Two commenters suggested that there is no need to 
extend an NWP beyond the current expiration date because the permittee 
is offered sufficient time within the current time parameters to 
complete an authorized project. Two commenters stated that General 
Condition 27 violates the terms and conditions of the Clean Water Act 
and this condition would establish National policy on what is 
considered a reasonable timeframe to complete a minimal impact 
activity. One commenter recommended that the permit be modified to 
change the extension date of those activities not verified by the Corps 
from 12 months to 3 months and that all future projects be verified by 
the Corps.
    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. We believe that the district office 
that is reviewing the project is best able to determine a reasonable 
time to complete the work. Projects will vary in the amount of time it 
takes to complete the activity. We believe that general condition 11 
will ensure that NWP authorized activities will comply with the 
Endangered Species Act. The Crops is not proposing to change the 
completion period for unverified NWP activities.
    The General Condition is adopted as proposed.

Definitions

    There were no comments on the definitions not listed below. There 
were no changes proposed to those definitions. Those definitions are 
adopted without change.
    Floodway. There were no changes proposed to this definition. One 
commenter believes that the definition of floodways is very broad.
    The Corps is using the definition of flood way as it is determined 
by the Federal Emergency Management Agency for the purposes of the 
national flood insurance program. This is the standard that is most 
used by Federal agencies for compliance with Executive Order 11988, 
Floodplain Management. It is the definition of the term that is used in 
general condition 26 of the NWPs. The definition is adopted without 
change.
    Independent Utility. There were no changes proposed to this 
definition. One commenter said that the definition of the term 
``independent utility'' should exclude highway projects, because a 
single project within the limits of the particular logical termini may 
need to be reviewed and authorized under the same NWP multiple times.
    We do not agree that the definition of this term should exclude 
highway projects. The Corps issues permits for a highway to cross a 
waterbody not for the highway itself. Normally the separate crossings 
will have independent utility. Only in rare circumstances would a 
highway project be considered a single and complete project as 
discussed in Corps regulations at 33 CFR 330. The terms and conditions 
of the NWPs, as well as the PCN process and the ability of district 
engineers to exercise discretionary authority, will ensure that highway 
projects authorized by NWPs, such as NWP 14, result in minimal adverse 
effects on the aquatic environment. The definition is adopted without 
change.
    Loss of waters of the US. The Corps proposed to clarify this 
definition, consistent with the explanation provided in the preamble to 
the March 9, 2000, NWPs Federal Register notice, which reflects the 
current practice for measuring the acreage and linear foot impacts for 
determining compliance with the threshold limits of the NWPs. In other 
words, this clarification does not change the current application of 
this term.
    One commenter noted that the Corps proposed to change the 
definition of ``loss of waters of the US'' without discussing the 
proposed change in preamble of the August 9, 2001, Federal Register 
notice. The commenter suggested that the definition remain as defined 
in the March 9, 2000, Federal Register notice that announced the 
issuance of new and modified NWPs to replace NWP 26. The definition in 
the March 9, 2000, notice stated that ``* * * the loss of stream bed 
includes the linear feet of stream bed that is filled or excavated.'' 
The commenter suggested explicitly including perennial, intermittent, 
and ephemeral reaches in this definition. One commenter stated that the 
proposed change to limit the definition of ``loss of waters of the US'' 
to perennial or intermittent stream could weaken protection for 
ephemeral streams.
    The Corps believes that it is necessary to clarify, that for 
determining the acreage and linear thresholds for the NWPs, ephemeral 
waters and streams

[[Page 2075]]

are not included in the measurement. This was previously explained on 
page 12881 of the March 9, 2000, preamble of the NWPs, but not included 
in the permit language. We now believe that it is important to include 
this language in the formal definition to avoid the confusion that was 
created by having this information in a Preamble discussion only and 
not in the definition itself. However, the Corps had proposed modifying 
language that we now believe did not fully and clearly address the 
issue. Therefore we are retaining the current language of this 
definition, but adding a new sentence at the end of the definition. The 
new sentence will clearly state that for measuring the threshold 
limitation only will we not include impacts to ephemeral waters. As 
with the proposed change, the new sentence will not change the current 
application of this term.
    Note that in excluding ephemeral streams from the definition of 
``Loss of Waters of the US'' for the purposes of determining compliance 
with NWP acreage and linear foot limitations, we are not suggesting 
that ephemeral streams are not jurisdictional waters under the Clean 
Water Act.
    One commenter requested clarification concerning the placement of 
box culverts and the definition of ``loss of the water of the US''. 
This commenter said that if the placement of a culvert in waters of the 
US does not change the bottom elevation, then the activity should not 
be considered to result in a loss of waters of the US.
    The placement of a culvert in waters of the United States would be 
considered a loss of waters of the United States, even if the activity 
would not result in a change in the bottom elevation. The definition of 
the term ``loss of waters of the US'' includes activities that change 
the use of the waterbody. The placement of a culvert in a stream or 
other water of the United States changes the use of that waterbody, and 
therefore the area changed by the installation of the culvert would be 
considered when determining whether the proposed work exceeded the 
acreage limit of an NWP.
    The definition is adopted with the change discussed above.
    Minimal effects. The Corps did not propose to define this term. 
Several commenters said that the term ``minimal effects'' should be 
defined. One commenter requested that the Corps develop an evaluation 
criteria for determining when an activity results in more than minimal 
impacts.
    We maintain our position that the term ``minimal effects'', as used 
in the context of the NWP program, cannot be simply defined. Aquatic 
resource functions and values vary considerably across the country, and 
the minimal adverse effects criterion for general permit must be 
subjectively applied by district engineers. Site-specific factors, such 
as the quality of waters that may be impacted by the proposed work, the 
functions and values of those waters, the geographic setting, and other 
factors must be considered when determining whether a particular 
activity results in minimal adverse effects on the aquatic environment. 
Further, in order to adopt such a term the Corps would have to publish 
a proposed definition for public notice and comment. A definition of 
this term is not being adopted.
    Open water. There were no changes proposed to this definition. One 
commenter stated that the definition of the term ``open water'' should 
be refined. This commenter said that sparsely vegetated areas of 
obligate emergent vegetation still meet the definition of a wetland and 
that vegetated shallows are special aquatic sites, such as seagrass 
beds. Sparsely vegetated waters inhabited by emergent vegetation may be 
identified as wetlands, provided the area meets the criteria required 
by the 1987 Corps of Engineers Wetlands Delineation Manual (Technical 
Report Y-87-1) and associated guidance. Vegetated waters inhabited by 
non-emergent vegetation, such as beds of submersed aquatic vegetation 
often found in estuaries, lakes, and ponds, are considered open waters 
for the purpose of the NWP program.
    The definition is adopted without change.
    Mechanized Land Clearing. The Corps did not propose to define this 
term. One commenter stated that the term ``mechanized land clearing'' 
is not defined in the ``Definitions'' section of the NWPs and 
recommends that the Corps adds a definition for this term.
    We do not agree that it is necessary to include a definition of the 
term ``mechanized land clearing'' in the NWPs. Matters related to 
mechanized landclearing have been most recently addressed in the 
changes to 33 CFR 323.2 that were published in the January 17, 2001, 
issue of the Federal Register (66 FR 4550). A definition of this term 
is not being adopted.
    Stream Definitions. There were no changes proposed to these 
definitions. One commenter said that the definitions of ephemeral and 
intermittent streams do not address streams that may flow for longer 
periods due to snowmelt, artificial discharges, or other water sources 
beside groundwater and precipitation. This commenter also suggested 
that artificial water discharges should not be used for the definitions 
of ephemeral and intermittent streams and if a water course is 
naturally ephemeral and a water treatment plant outfall is constructed, 
the watercourse should continue to be defined as ephemeral for Section 
404 purposes.
    When determining whether a particular stream segment is perennial, 
intermittent, or ephemeral, district engineers should consider the 
source of hydrology and the normal circumstance of that hydrology. They 
will make these determinations on a case-by-case basis. We believe that 
these definitions are sufficient for the Corps Regulatory Program. The 
stream definitions are adopted without change.

Executive Order 13212--Energy-related Projects Issues

    One commenter indicated that NWPs have already been designed to 
expedite permit processing and any new energy related projects (i.e. 
drilling oil in the Arctic National Wildlife Refuge, construction of 
new nuclear power plants, or electric power generation dams) not 
covered by existing NWPs should receive full consideration under the 
National Environmental Policy Act (Act) and not be authorized by NWPs. 
One commenter said that states have provisions similar to Executive 
Order 13212 and this commenter believes that the current coordination 
process and the expedited review process provided by the NWPs are 
sufficient. One commenter asserted that the expiration of NWP 26 
reduced the ability of the Corps to efficiently authorize energy-
related projects. This commenter suggested that other NWPs be amended 
to expedite energy-related projects or revisit the development of a 
regional permit for such activities.
    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 Executive 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, while 
maintaining protection of the environment. We believe that the NWP 
program provides an opportunity to expeditiously authorize energy-
related activities that have no more than minimal adverse effects on 
the aquatic environment, individually and cumulatively. Energy related 
projects that have more than minimal individual and cumulative

[[Page 2076]]

adverse effects on the aquatic environment cannot be authorized by NWPs 
and will be expeditiously reviewed under the individual permit process.

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 
no more than minimal adverse effects with little, if any, delay or 
paperwork. NWPs allow smaller, repetitive, low impact projects with no 
more than minimal adverse 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 Corps is adopting 
changes to the Nationwide Permits that 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.

Regional Conditioning of Nationwide Permits

    Concurrent with this Federal Register notice, District Engineers 
are issuing local public notices. In addition to the changes to some 
NWPs and NWP conditions required by the Chief of Engineers, the 
Division and District Engineers may propose regional conditions or 
propose revocation of NWP authorization for all, some, or portions of 
the NWPs. Regional conditions may also be required by state Section 401 
water quality certification or for state coastal zone consistency. 
District engineers will announce regional conditions or revocations by 
issuing local public notices. Information on regional conditions and 
revocation can be obtained from the appropriate District Engineer, as 
indicated below. Furthermore, this and additional information can be 
obtained on the internet at http://www.usace.army.mil/where.html#State 
by clicking on the appropriate District office.

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 532711, 
Los Angeles, CA 90053-2325

Arkansas

Little Rock District Engineer, ATTN: CESWL-PR-R, P.O. Box 867, 
Little Rock, AR 72203-0867

California

Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, 
Sacramento, CA 95814-2922

Colorado

Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson 
Plaza NE, Albuquerque, NM 87109-3435

Connecticut

New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751

Delaware

Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East Philadelphia, PA 19107-3390

Florida

Jacksonville District Engineer, ATTN: CESAJ-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-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440

Idaho

Walla Walla District Engineer, ATTN: CENWW-OD-RF, 210 N. Third 
Avenue, Walla Walla, WA 99362-1876

Illinois

Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, Rock 
Island, IL 61204-2004

Indiana

Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059

Iowa

Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, Rock 
Island, IL 61204-2004

Kansas

Kansas City District Engineer, ATTN: CENWK-OD-R, 700 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896

Kentucky

Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059

Louisiana

New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267, New 
Orleans, LA 70160-0267

Maine

New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751

Maryland

Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715

Massachusetts

New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751

Michigan

Detroit District Engineer, ATTN: CELRE-RG, P.O. Box 1027, Detroit, 
MI 48231-1027

Minnesota

St. Paul District Engineer, ATTN: CEMVP-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-R, 700 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896

Montana

Omaha District Engineer, ATTN: CENWO-OP-R, 106 South 15th Street, 
Omaha, NE 68102-1618

Nebraska

Omaha District Engineer, ATTN: CENWO-OP-R, 106 South 15th Street, 
Omaha, NE 68102-1618

Nevada

Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, 
Sacramento, CA 95814-2922

New Hampshire

New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751

New Jersey

Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East, Philadelphia, PA 19107-3390

New Mexico

Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson 
Plaza NE, Albuquerque, NM 87109-3435

[[Page 2077]]

New York

New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza, New 
York, NY 10278-0090

North Carolina

Wilmington District Engineer, ATTN: CESAW-RG, P.O. Box 1890, 
Wilmington, NC 28402-1890

North Dakota

Omaha District Engineer, ATTN: CENWO-OP-R, 106 South 15th Street, 
Omaha, NE 68102-1618

Ohio

Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070

Oklahoma

Tulsa District Engineer, ATTN: CESWT--PE-R, 1645 S. 101st East Ave, 
Tulsa, OK 74128-4609

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-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, 106 South 15th Street, 
Omaha, NE 68102-1618

Tennessee

Nashville District Engineer, ATTN: CELRN-OP-F, P.O. Box 1070, 
Nashville, TN 37202-1070

Texas

Ft. Worth District Engineer, ATTN: CESWF-PER-R, P.O. Box 17300, Ft. 
Worth, TX 76102-0300

Utah

Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, CA 
95814-2922

Vermont

New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751

Virginia

Norfolk District Engineer, ATTN: CENAO-OP-R, 803 Front Street, 
Norfolk, VA 23510-1096

Washington

Seattle District Engineer, ATTN: CENWS-OP-RG, P.O. Box 3755, 
Seattle, WA 98124-2255

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, 106 South 15th Street, 
Omaha, NE 68102-1618

District of Columbia

Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715

Pacific Territories (American Samoa, Guam, & Commonwealth of the 
Northern Mariana Islands)

Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440

Puerto Rico & Virgin Islands

Jacksonville District Engineer, ATTN: CESAJ-CO-R, P.O. Box 4970, 
Jacksonville, FL 32202-4412

    Dated: January 4, 2002.

    Approved:
Robert H. Griffin,
Brigadier 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
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

[[Page 2078]]

Single and Complete Project
Stormwater Management
Stormwater Management Facilities
Stream Bed
Stream Channelization
Tidal Wetland
Vegetated Buffer
Vegetated Shallows
Waterbody

B. Nationwide Permits

    1. Aids to Navigation. The placement of aids to navigation and 
Regulatory markers which are approved by and installed in accordance 
with the requirements of the U.S. Coast Guard (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.

    4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. Fish and wildlife harvesting devices and 
activities such as pound nets, crab traps, crab dredging, eel pots, 
lobster traps, duck blinds, clam and oyster digging; and small fish 
attraction devices such as open water fish concentrators (sea kites, 
etc.). This NWP authorizes shellfish seeding provided this activity 
does not occur in wetlands or sites that support submerged aquatic 
vegetation (including sites where submerged aquatic vegetation is 
documented to exist, but may not be present in a given year.). This NWP 
does not authorize artificial reefs or impoundments and semi-
impoundments of waters of the 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)

[[Page 2079]]

    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 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

[[Page 2080]]

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) through (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.
    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

[[Page 2081]]

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 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 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. (Sections 10 
and 404)
    22. Removal of Vessels. Temporary structures or minor discharges of 
dredged or fill material required for the removal of wrecked, 
abandoned, or disabled vessels, or the removal of man-

[[Page 2082]]

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 Pub. L. 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), the National Marine Fisheries Service, the National Ocean 
Service, 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, to the extent that a 
Corps permit is required, 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; the construction of oyster habitat over unvegetated bottom in 
tidal waters; activities needed to reestablish vegetation, including 
plowing or discing for seed bed preparation and the planting of 
appropriate wetland species; mechanized land clearing to remove non-
native invasive, exotic or nusiance 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 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

[[Page 2083]]

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 
authorize 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.'' (Sections 10 and 404)
    30. Moist Soil Management for Wildlife. Discharges of dredged or 
fill material and maintenance activities that are associated with moist 
soil management for wildlife performed on non-tidal Federally-owned or 
managed, state-owned or managed property, and local government agency-
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 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)).
    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

[[Page 2084]]

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 that has been abandoned. A flood control facility will be 
considered abandoned if it has operated at a significantly reduced 
capacity without needed maintenance being accomplished in a timely 
manner.
    Mitigation: The District Engineer will determine any required 
mitigation one-time only for impacts associated with maintenance work 
at the same time that the maintenance baseline is approved. Such one-
time mitigation will be required when necessary to ensure that adverse 
environmental impacts are no more than minimal, both individually and 
cumulatively. Such mitigation will only be required once for any 
specific reach of a flood control project. However, if one-time 
mitigation is required for impacts associated with maintenance 
activities, the District Engineer will not delay needed maintenance, 
provided the District Engineer and the permittee establish a schedule 
for identification, approval, development, construction and completion 
of any such required mitigation. Once the one-time mitigation described 
above has been completed, or a determination made that mitigation is 
not required, no further mitigation will be required for maintenance 
activities within the maintenance baseline. In determining appropriate 
mitigation, the District Engineer will give special consideration to 
natural water courses that have been included in the maintenance 
baseline and require compensatory mitigation and/or 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; or
    (iii) The terms of a final court decision, consent decree, 
settlement agreement, or non-judicial settlement agreement resulting 
from a natural resource damage claim brought by a trustee or trustees 
for natural resources (as defined by the National Contingency Plan at 
40 CFR subpart G) under section 311 of the Clean Water Act (CWA), 
section 107 of the Comprehensive Environmental Response, Compensation 
and Liability Act (CERCLA or Superfund), section 312 of the National 
Marine Sanctuaries Act (NMSA), section 1002 of the Oil Pollution Act of 
1990 (OPA), or the Park System Resource Protection Act at 16 U.S.C. 
'19jj, to the extent that a Corps permit is required.
    For either (i), (ii) or (iii) 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 
that it will not cause more than minimal adverse effects on aquatic 
resources.

[[Page 2085]]

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 U.S. (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 U.S., 
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, and boat slips to previously 
authorized depths or controlling depths for ingress/egress, whichever 
is less, provided the dredged material is disposed of at an upland site 
and proper siltation controls are used. (Section 10)
    36. Boat Ramps. Activities required for the construction of boat 
ramps provided:
    a. The discharge into waters of the U.S. 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 U.S. (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); or
    b. The USFS under its Burned-Area Emergency Rehabilitation Handbook 
(FSH 509.13); or
    c. 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 
U.S., 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 \1/2\-acre 
of non-tidal waters of the U.S., 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 for intermittent stream beds 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:
    (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

[[Page 2086]]

    (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 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);
    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 a 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;
    (3) The notification must include a delineation of affected 
wetlands; and

[[Page 2087]]

    (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, for drainage ditches 
constructed in intermittent non-tidal streams, 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 constructed in intermittent non-tidal streams, 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. In 
general, this NWP does not apply to reshaping drainage ditches 
constructed in uplands, since these areas are generally 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 for intermittent stream beds 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 of 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.

[[Page 2088]]

    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 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 for intermittent stream beds 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 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

[[Page 2089]]

US at the project site to the maximum extent practicable, and the 
notification must include a written statement detailing compliance with 
this 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. 
Permittees are encouraged to perform work within waters of the United 
States during periods of low-flow or no-flow.
    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

[[Page 2090]]

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 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. As a result of formal or informal 
consultation with the FWS or NMFS the District Engineer may add 
species-specific regional endangered species conditions to the NWPs.
    (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 to make the 
PCN complete only once. However, if the prospective permittee does not 
provide all of the requested information, then the District Engineer 
will notify the prospective permittee that the 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.);
    (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. 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;
    (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;

[[Page 2091]]

    (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 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. For discharges that cause the loss of greater than 300 linear 
feet of an intermittent stream bed, 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;
    (14) For NWP 40 (Agricultural Activities), the PCN must include a 
compensatory mitigation proposal to offset losses of waters of the US. 
This NWP does not authorize the relocation of greater than 300 linear-
feet of existing serviceable drainage ditches constructed in non-tidal 
streams unless, for drainage ditches constructed in intermittent non-
tidal streams, 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;
    (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. For discharges that cause the loss of greater than 
300 linear feet of an intermittent stream bed, 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;
    (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; and
    (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

[[Page 2092]]

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 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 as compensatory mitigation, 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

[[Page 2093]]

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 or reduce the requirement to provide wetland 
compensatory mitigation 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 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

[[Page 2094]]

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 maybe 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 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 a net threshold that is calculated after 
considering compensatory mitigation that may be used to offset losses 
of aquatic functions and values. The loss of stream bed includes the 
linear feet of stream bed 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. Impacts to 
ephemeral waters are only not included in the acreage or linear foot 
measurements of loss of waters of the US or loss of stream bed, for the 
purpose of determining compliance with the threshold limits of the 
NWPs.
    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 either non-emergent, sparse, or 
absent. Vegetated shallows are considered to be open waters. The term 
``open water'' includes rivers, streams, lakes, and ponds. For the 
purposes of the NWPs, this term does not include ephemeral waters.
    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

[[Page 2095]]

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 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. 02-539 Filed 1-14-02; 8:45 am]
BILLING CODE 3710-92-P