[Federal Register Volume 67, Number 30 (Wednesday, February 13, 2002)]
[Notices]
[Pages 6692-6695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3555]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers


Issuance of Nationwide Permits; Notice; Correction

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final notice; correction.

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SUMMARY: This document contains corrections to the final notice of 
issuance of Nationwide Permits (NWPs) which was published in the 
Federal Register on Tuesday, January 15, 2002 (67 FR 2020-2095).

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. Kirk Stark, at (202) 761-4664 or Ms. Leesa Beal at (202) 761-4599 
or access the U.S. Army Corps of Engineers Regulatory Home Page at: 
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION: In the SUMMARY section on page 2020, the 
third and fourth sentences are corrected to read: ``All NWPs except 
NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on February 
11, 2002. Existing NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 
expire on March 18, 2002.'' In the last sentence of the SUMMARY 
section, the expiration date is corrected as ``March 18, 2007'', 
instead of ``March 19, 2007''.
    On page 2020, in second sentence of the DATES section, the 
expiration date is corrected as ``March 18, 2007'', instead of ``March 
19, 2007''. Therefore, the NWPs published in the January 15, 2002; 
Federal Register will expire on March 18, 2007, five years from their 
effective date of March 18, 2002.
    On page 2020, in the fifth paragraph of the Background section, the 
third and fourth sentences are corrected to read: ``All NWPs except 
NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 expire on February 
11, 2002. Existing NWPs 3, 7, 12, 14, 27, 39, 40, 41, 42, 43, and 44 
expire on March 18, 2002.'' The expiration date in the last sentence of 
this paragraph is corrected as ``March 18, 2007'', instead of ``March 
19, 2007''.
    On page 2020, the paragraph in the section entitled ``Grandfather 
Provision for Expiring NWPs at 33 CFR 330.6'' is corrected to read: 
``Activities authorized by the current NWPs issued on December 13, 
1996, (except NWPs 3, 7, 12, 14, 27, 39, 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 3, 7, 12, 14, 27, 39, 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.''
    On page 2020, in the ``Clean Water Act Section 401 Water Quality 
Certification (WQC) and Coastal Zone Management Act (CZMA) Consistency 
Agreement'' section, the date in the fifth sentence is corrected as 
``February 11, 2002'', instead of ``February 11, 2001''.
    On page 2023, third column, last sentence, the number 29 is 
replaced with the number 19, because this sentence refers to General 
Condition 19.
    On page 2024, first column, in the fourth sentence of the last 
paragraph the phrase ``less than'' is replaced by ``greater than'' 
because the 30 day completeness review period for NWP pre-construction 
notifications is greater than the 15 day completeness review period for 
standard permit applications.
    On page 2031, second column, second full paragraph, the number 31 
is replaced with the number 3 because this paragraph refers to NWP 3.
    On page 2044, second column, fourth complete paragraph, the title 
is corrected to read ``Stream and Wetland Restoration Activities'' 
because that is the title of NWP 27.
    On page 2054, second column, the year cited in the third sentence 
of the second paragraph is the year 2000, not 1996.
    On page 2058, third column, in the second sentence of the second 
complete paragraph the word ``intermittent'' is inserted before the 
phrase ``stream bed'' because the waiver for filling or excavating 
greater than 300 linear feet of stream beds can apply only to 
intermittent stream beds.
    On page 2072, third column, last sentence, the number 19 is 
inserted after the term ``General Condition'' since this sentence 
refers to General Condition 19.
    On page 2076, second column, the street address for the Walla Walla 
District Engineer is corrected to read ``201 N. Third Avenue``.
    On page 2080, second column, third paragraph from the top of the 
column (in the ``Notification'' section of NWP 12), the word ``or'' at 
the end of paragraph (e) is deleted and the period at the end of the 
fourth paragraph (paragraph (f)) is replaced with ``; or''.
    On page 2080, second column, paragraph (a) of NWP 13 is corrected 
to read: ``No material is placed in excess of the minimum needed for 
erosion protection;'' The change was not intended and we are correcting 
this paragraph by reinstating the original text as it appeared in the 
version of NWP 13 published in the December 13, 1996, Federal Register 
(61 FR 65915).
    On page 2080, third column, the word ``or'' is inserted at the end 
of paragraph (a)(1) of NWP 14, Linear Transportation Projects. 
Paragraph (a) of NWP 14 is corrected to read: ``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; or (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.''
    On page 2085, second column, the last sentence of NWP 36 is 
corrected to read as follows: ``Dredging to provide

[[Page 6693]]

access to the boat ramp may be authorized by another NWP, regional 
general permit, or individual permit pursuant to section 10 if located 
in navigable waters of the United States. * * *'' The change was not 
intended and we are correcting this paragraph by reinstating the 
original text as it appeared in the version of NWP 36 published in the 
December 13, 1996, Federal Register (61 FR 65919).
    On page 2086, in the second full paragraph of the second column, 
``paragraph (e)'' in the second sentence is replaced with ``paragraph 
(f)'' and ``paragraph (i)'' in the third sentence is replaced with 
``paragraph (j)'' to accurately cite the previous paragraphs of NWP 39. 
The last two sentences of the paragraph before the subdivision 
paragraph were incorrectly divided into two sentences from the original 
single sentence and identified as being related to General Condition 
15. This change was not intended and we are correcting this paragraph 
by reinstating the original last sentence as it exists in the March 9, 
2000, text of NWP 39 (65 FR 12890).
    On page 2086, middle column, the parenthetical statement at the end 
of the Note at the end of NWP 39 is corrected to read ``* * * (except 
for ephemeral waters, which do not require PCNs under paragraph (c)(2), 
above; however, activities that result in the loss of greater than \1/
10\ acre of ephemeral waters would require PCNs under paragraph (c)(1), 
above).'' The addition to the Note was intended to clarify that under 
paragraph (c)(2) only the loss of ephemeral open waters were not 
included in the requirement for a pre-construction notification (PCN). 
However, under paragraph (c)(1) all ephemeral waters of the United 
States are included in the measurement for the \1/10\ acre PCN 
requirement. The correction is needed because the statement in the 
parentheses could be incorrectly interpreted to apply to paragraph 
(c)(1) and possibly to all PCNs, not just those affected by paragraph 
(c)(2).
    For clarity, we are providing the text of NWP 39 in its entirety, 
with the corrections described above:
    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 \1/12\-
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
    (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., 
\1/2\-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., \1/2\-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

[[Page 6694]]

compensatory mitigation proposal that is required in paragraph (f) of 
this NWP may be either conceptual or detailed. The wetland or upland 
vegetated buffer required in paragraph (j) 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 United States to increase 
production or construct farm buildings, NWP 39 cannot be used by the 
developer to authorize additional activities in waters of the United 
States on the project site in excess of the acreage limit for NWP 39 
(i.e., the combined acreage loss authorized under NWPs 39 and 40 cannot 
exceed \1/2\ acre).
    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 under paragraph (c)(2), above; however, activities that 
result in the loss of greater than \1/10\ acre of ephemeral waters 
would require PCNs under paragraph (c)(1), above).

    On page 2088, in the sixth sentence of the first paragraph in the 
first column, the phrase ``an adequate water quality management plan'' 
is replaced with the phrase ``adequate water quality management 
measures'' to reflect the modified language in General Condition 9. 
This sentence is corrected to read ``The facility must have adequate 
water quality management measures 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.''
    On page 2089, first column, the second sentence of paragraph (c) of 
NWP 44 is corrected to read ``Normally, the water quality management 
measures required by General Condition 9 should address these 
impacts;''. In addition, the second sentence of paragraph (i) of NWP 44 
is corrected to read ``Further the District Engineer may require water 
quality management measures to ensure the authorized work results in 
minimal adverse effects to water quality;'' These corrections are 
necessary to reflect the modified language in General Condition 9.
    On page 2089, third column, the text of General Condition 6 is 
corrected to read: ``The activity must comply with any regional 
conditions that may have been added by the Division Engineer (see 33 
CFR 330.4(e)) and with any case specific conditions added by the Corps 
or by the state or tribe in its Section 401 Water Quality Certification 
and Coastal Zone Management Act consistency determination.'' The change 
to General Condition 6 that was published in the January 15, 2002, 
Federal Register was not intended and we are correcting this sentence 
by reinstating the original text as it existed in the March 9, 2000, 
NWPs.
    On page 2090, first column, the word ``Section'' in the 
parenthetical at the end of General Condition 10 is replaced with ``33 
CFR'' so that the parenthetical reads ``(see 33 CFR 330.4(d))''.
    On page 2090, at the top of the second column, the second Internet 
URL is replaced with ``* * * http://www.nmfs.noaa.gov/prot_res/overview/es.html * * *'' because the Internet address for the National 
Marine Fisheries Service home page for endangered species has been 
changed.
    On page 2090, third column, in paragraph (b)(4) of General 
Condition 13, NWP 40 should be added to the list of NWPs that require 
submission of delineations of special aquatic sites with pre-
construction notifications. Therefore, paragraph (b)(4) of General 
Condition 13 is corrected to read ``For NWPs 7, 12, 14, 18, 21, 34, 38, 
39, 40, 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));''
    On page 2090, third column, in paragraph (b)(6) of General 
Condition 13, the word ``Projects'' replaces the word ``Crossings'', 
because the title of NWP 14 is ``Linear Transportation Projects''.
    On page 2090, third column, in paragraph (b)(8) of General 
Condition 13, the word ``Activities'' is inserted after the word 
``Restoration'' because the title of NWP 27 is ``Stream and Wetland 
Restoration Activities''.
    On page 2091, first column, in paragraph (b)(10) of General 
Condition 13, the word ``Projects'' is replaced with the word 
``Facilities'' because the title of NWP 31 is ``Maintenance of Existing 
Flood Control Facilities''.
    On page 2094, third column, we are correcting the definition of 
``Loss of Waters of the US'' by deleting the last sentence and 
inserting the following sentence after the fourth sentence of this 
definition: ``Impacts to ephemeral streams are not included in the 
linear foot measurement of loss of stream bed for the purpose of 
determining compliance with the linear foot limits of NWPs 39, 40, 42, 
and 43.''
    Due to the number of corrections made to the definition of ``Loss 
of Waters of the US'', we are providing the text of this definition in 
its entirety, with the corrections described above:
    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. Impacts to 
ephemeral streams are not included in the linear foot measurement of 
loss of stream bed for the purpose of determining compliance with the 
linear foot limits of NWPs 39, 40, 42, and 43. 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.
    In the January 15, 2002, Federal Register, it was stated that the 
definition was being revised (to clarify that ephemeral waters and 
streams are not included in the acreage or linear thresholds for NWPs) 
to comport with language in the preamble of the March 9, 2000 Federal 
Register notice. However, the language in the preamble of the March 9, 
2000 Federal Register notice (65 FR 12881, third column) does not 
support this revision. Rather, the referenced preamble states, ``During 
our review of the comments received in response to the July 21, 1999, 
Federal Register notice, we found an error in the proposed definition 
of the term, ``loss of waters of the United States.'' In the fourth 
sentence of the draft definition, we stated that the loss of stream bed

[[Page 6695]]

includes the linear feet of perennial or intermittent stream bed that 
is filled or excavated. This statement is inaccurate because ephemeral 
stream bed that is filled or excavated can also be considered a loss of 
waters of the United States. However, the 300 linear foot limit for 
stream beds filled or excavated does not apply to ephemeral streams. We 
have modified this sentence to define the loss of stream bed as the 
linear feet of stream bed that is filled or excavated.'' Thus, the 
modification of this definition was intended to clarify that activities 
that involve filling or excavating ephemeral streams are not included 
in the linear foot limits for filling or excavating stream beds in NWPs 
39, 40, 42, and 43. However, it was not intended to exempt ephemeral 
waters or streams from calculations of impacted acreages to determine 
PCN or maximum acreage requirements in accordance with NWPs 39, 40, 42, 
and 43.
    In the August 9, 2001, Federal Register notice (66 FR 42099) we 
proposed to modify the definition of ``Loss of Waters of the US'' by 
adding the sentence ``* * * The loss of stream bed includes the linear 
feet of perennial stream or intermittent stream that is filled or 
excavated * * *''. The proposed change was in response to a commitment 
to clearly state in the text of the NWPs (which includes the 
definitions) that the 300 linear foot limit in NWPs 39, 40, 42, and 43 
for filling and excavating stream beds would only apply to intermittent 
and perennial streams, not to ephemeral streams.
    In the January 15, 2002, Federal Register notice (67 FR 2074-2075) 
we erroneously stated that both the acreage and linear limits of the 
NWPs do not apply to ephemeral waters. This was never intended to be 
adopted as policy for the NWPs or the Corps regulatory program. A 
previously stated, in the first column of page 2075 of the January 15, 
2002, Federal Register notice, we refer to page 12881 of the March 9, 
2000, Federal Register notice, which only discusses the 300 linear foot 
limit, not the acreage limits of the NWPs. Our intent is to continue to 
apply acreage limits of NWPs to activities that result in the permanent 
loss of ephemeral waters, but the linear foot limits of the NWPs (i.e., 
NWPs 39, 40, 42, and 43) for filling or excavating stream beds would 
not apply to activities that involve filling or excavating ephemeral 
streams. The last sentence of the definition of ``Loss of Waters of the 
US'' as published in the January 15, 2002, Federal Register notice does 
not comport with remainder of this NWP package. Therefore, we are 
correcting this definition as described above.
    We believe that correcting the text of NWP 39 and the definition of 
``Loss of Waters of the US'' through the publication of this correction 
notice is appropriate. Nevertheless, in order to give all interested 
parties further opportunity to comment on this matter, we intend to 
publish a Federal Register notice to solicit public comments on those 
two corrections. If we determine that any other matter relating to the 
final NWPs requires correction or clarification, but that matter was 
not adequately dealt with in this correction notice, we will address 
that additional matter in the forthcoming Federal Register notice, as 
well. We expect to publish that Federal Register notice within a few 
weeks.

    Dated: February 7, 2002.
Lawrence A. Lang,
Assistant Chief, Operations Division, Directorate of Civil Works.
[FR Doc. 02-3555 Filed 2-12-02; 8:45 am]
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