[Federal Register Volume 69, Number 229 (Tuesday, November 30, 2004)]
[Proposed Rules]
[Pages 69563-69567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26263]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 330

RIN 0710-AA60


Nationwide Permit Program

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Proposed rule.

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SUMMARY: The U.S. Army Corps of Engineers is proposing to amend its 
nationwide permit regulations. We are proposing to modify the 
nationwide permit regulations so that district engineers can issue 
nationwide permit verification letters that expire on the same date the 
nationwide permit expires. This amendment will allow district engineers 
to issue that nationwide permit verifications are valid throughout the 
period of time the nationwide permit is in effect, to provide 
regulatory flexibility and efficiency. We are also proposing to 
increase the 30-day pre-construction notification review period to 45 
days, to conform with nationwide permit general condition 13. Since the 
nationwide permit regulations were last amended in 1991, there have 
been changes to related

[[Page 69564]]

regulations and policies that have generally increased the complexity 
of reviews of nationwide permit pre-construction notifications. The 45-
day pre-construction notification review period will provide district 
engineers with time to effectively review proposed nationwide permit 
activities that require notification, as well as compensatory 
mitigation proposals, to determine whether those activities meet the 
terms and conditions of the nationwide permits and result in minimal 
adverse environmental effects.

DATES: Submit comments on or before January 31, 2005.

ADDRESSES: Written comments should be sent to the U.S. Army Corps of 
Engineers, Attn: CECW-MVD (David B. Olson), 441 G Street NW., 
Washington, DC 20314-1000, or by e-mail to 
[email protected]. Electronic comments should be 
submitted in ASCII format or portable document format to ensure that 
those comments can be read. Electronic files should avoid the use of 
special characters and any form of encryption, and be free of any 
defects or viruses. Consideration will be given to all comments 
received within 60 days of the date of publication of this notice.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or 
access the U.S. Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/ reg/.

SUPPLEMENTARY INFORMATION:

Background

    On November 22, 1991, (56 FR 59110) the U.S. Army Corps of 
Engineers Corps) revised 33 CFR part 330, the regulations for 
implementing its nationwide permit (NWP) program. Section 
330.6(a)(3)(ii) of this regulation states that NWP verification letters 
can be valid for no more than two years. Section 330.1(e) provides 
district engineers with 30 days to review notifications to determine 
whether proposed NWP activities are in the public interest and result 
in minimal individual and cumulative adverse environmental effects. 
Since 1991, there have been substantial changes to the NWP program that 
warrant amendments to these provisions.
    We are proposing to amend Sec.  330.6(a)(3)(ii) to allow district 
engineers to issue NWP verification letters that expire on the same 
date the NWP expires. An NWP verification letter provides confirmation 
that a particular activity is authorized by NWP. This amendment will 
help promote administrative efficiency by eliminating the two year 
limit for NWP verification letters, so that it will not be necessary 
for district engineers to reverify an NWP authorization when the 
permittee has not completed the authorized work within two years. In 
many cases, a project proponent must obtain state and local 
authorizations before proceeding with a project. That process can take 
more than two years. We believe the flexibility and efficiency of the 
NWP Program would be improved if this regulation is modified to allow 
district engineers to issue NWP verification letters that expire at the 
same time the NWP expires. This will allow the NWP program to 
accommodate state and local planning and regulatory processes, without 
diminishing protection of the aquatic environment.
    The two year limit for verification letters was intended to allow 
for adjustments or clarifications of jurisdiction, policy, and 
procedure. It has been our experience that we seldom need to change NWP 
verification letters between the date the verification letter is issued 
and the expiration date of the NWP. If such changes are necessary, 
district engineers may use the procedures at Sec.  330.5(d) to modify, 
suspend, or revoke a case-specific NWP authorization. In most cases, 
the five year time limit for NWPs is adequate for accounting for 
changes in jurisdiction, policy, and procedure. District engineers will 
have the option of issuing NWP verification letters for shorter time 
periods, to address concerns for the aquatic environment or other 
public interest review factors.
    We are also proposing to amend the NWP regulations to increase the 
pre-construction notification (PCN) review period from 30 days to 45 
days. The purpose of the PCN review period, and the de facto 
authorization that results if the district engineer does not respond to 
a PCN during that review period, is to provide some regulatory 
certainty to the public by requiring district engineers to respond to 
NWP PCNs in a timely manner.
    When we reissued NWP 26 on December 13, 1996, (61 FR 65874) we 
increased the PCN review period for proposed NWP 26 activities 
resulting in the loss of greater than one-third acre of waters of the 
United States from 30 days to 45 days. When we issued five new and six 
modified NWPs to replace NWP 26 on March 9, 2000, (65 FR 12818) we 
increased the review period for all proposed NWP activities that 
require PCNs to 45 days. The 45-day PCN review period was retained in 
the January 15, 2002, reissuance of the NWPs (67 FR 2020).
    Since 1991, there have been new and modified Federal regulations 
that have affected the implementation of the NWP program, and increased 
the amount of time required to review PCNs. For example, the National 
Marine Fisheries Service (NMFS) issued regulations for implementing the 
Essential Fish Habitat (EFH) provisions of the Magnuson-Stevens Fishery 
Conservation and Management Act that require consultation for 
activities that may adversely affect EFH. Current regulations for 
implementing the EFH provisions require Federal agencies to provide 
NMFS 30 days to respond to EFH Assessments (see 50 CFR 600.920).
    There have also been changes to the Regulatory Program's 
compensatory mitigation policies, such as the issuance of Regulatory 
Guidance Letter 02-02 on December 24, 2002, and the issuance of 
Mitigation Action Plan items. Compensatory mitigation proposals can be 
complex documents that require technical review to determine whether 
the proposed compensatory mitigation projects are feasible and will 
effectively offset authorized losses of aquatic resources.
    Prior to issuing NWP verification letters, district engineers 
review compensatory mitigation proposals to determine whether the 
proposed compensatory mitigation is sufficient to ensure that the 
authorized work will result in minimal individual and cumulative 
adverse effects on the aquatic environment and other public interest 
factors. The 45-day review period would provide district engineers with 
time to effectively review compensatory mitigation proposals submitted 
with PCNs.
    Amending the NWP regulations by increasing the 30-day PCN review 
period to 45 days will not adversely affect processing times for NWP 
verification requests. As discussed above, the 45-day PCN review period 
was adopted in 1996 for NWP 26, and was applied to all NWPs requiring 
PCNs in 2000. In FY 2003, the average processing time for an NWP 
verification request was 27 days. We believe that the average 
processing times for NWP verification requests will continue to be less 
than 30 days if the proposed rule change is adopted since the proposed 
modification reflects current NWP PCN processing practices.
    We are also proposing to amend Sec. Sec.  330.4(c)(6) and 
330.4(d)(6) by replacing the 30-day review period with the proposed 45-
day review period and replacing the term ``pre-discharge notification'' 
with ``pre-construction notification'' to be consistent with current 
terminology used in the NWP

[[Page 69565]]

program. The term ``pre-construction notification'' is more 
appropriate, since nationwide permits may authorize, in addition to 
discharges of dredged or fill material into waters of the United 
States, construction activities in navigable waters of the United 
States.

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is 
written using plain language. The use of ``we'' in this notice refers 
to the Corps. We have also used the active voice, short sentences, and 
common everyday terms except for necessary technical terms.

Paperwork Reduction Act

    This proposed action will not impose any new information collection 
burden under the provisions of the Paperwork Production Act (44 U.S.C. 
3501 et seq.). For NWPs that require PCNs, the proposed modification 
changes the 30-day review period to a 45-day review period. In 
addition, the proposed rule changes the length of time an NWP 
verification letter could be valid.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to, or for, a Federal agency. This includes the 
time needed to review instructions; develop, acquire, install, and 
utilize technology and systems for the purposes of collecting, 
validating, and verifying information, processing and maintaining 
information, and disclosing and providing information; adjust the 
existing ways to comply with any previously applicable instructions and 
requirements; train personnel to be able to respond to a collection of 
information; search data sources; complete and review the collection of 
information; and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
For the Corps Regulatory Program under Section 10 of the Rivers and 
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the 
current OMB approval number for information collection requirements is 
maintained by the Corps of Engineers (OMB approval number 0710-0003, 
which expires December 31, 2004). Since the proposed rule does not 
involve any additional collection of information from the public, this 
action is not subject to the Paperwork Reduction Act.

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Corps must determine whether the regulatory action is ``significant'' 
and therefore subject to review by OMB and the requirements of the 
Executive Order. The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
that the proposed rule is not a ``significant regulatory action'' 
because it does not meet any of these four criteria. The proposed rule 
is a modification of existing procedures. For NWPs that require PCNs, 
the proposed rule increases the 30-day review period to 45 days. In 
addition, the proposed rule changes the length of time an NWP 
verification letter could be valid.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have Federalism 
implications.'' The phrase ``policies that have Federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    The proposed rule does not have Federalism implications. We do not 
believe that amending the regulation to increase the NWP PCN review 
period or increase the length of time an NWP verification letter may be 
valid will have substantial direct effects on the States, on the 
relationship between the Federal government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. The proposed rule does not impose new substantive 
requirements. In addition, the proposed changes will not impose any 
additional substantive obligations on State or local governments. 
Therefore, Executive Order 13132 does not apply to this proposed rule.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, a small entity is defined as : (1) A small business 
based on Small Business Administration size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; or (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of the proposed rule on 
small entities, we believe that this action will not have a significant 
economic impact on a substantial number of small entities. The proposed 
rule is consistent with current agency practice, does not impose new 
substantive requirements, and therefore would not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final

[[Page 69566]]

rules with ``Federal mandates'' that may result in expenditures to 
State, local, and Tribal governments, in the aggregate, or to the 
private sector, of $100 million or more in any one year. Before 
promulgating a rule for which a written statement is needed, Section 
205 of the UMRA generally requires the agencies to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows an agency to adopt an alternative other than the 
least costly, most cost-effective, or least burdensome alternative if 
the agency publishes with the final rule an explanation why that 
alternative was not adopted. Before an agency establishes any 
regulatory requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed, 
under Section 203 of the UMRA, a small government agency plan. The plan 
must provide for notifying potentially affected small governments, 
enabling officials of affected small governments to have meaningful and 
timely input in the development of regulatory proposals with 
significant Federal intergovernmental mandates, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    We have determined that the proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and Tribal governments, in the aggregate, or the 
private sector in any one year. The proposed rule is consistent with 
current agency practice, does not impose new substantive requirements 
and therefore does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or the private sector in any one year. 
Therefore, the proposed rule is not subject to the requirements of 
Sections 202 and 205 of the UMRA. For the same reasons, we have 
determined that the proposed rule contains no regulatory requirements 
that might significantly or uniquely affect small governments. 
Therefore, the proposed rule is not subject to the requirements of 
Section 203 of UMRA.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental health or 
safety effects of the proposed rule on children, and explain why the 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives.
    The proposed rule is not subject to this Executive Order because it 
is not economically significant as defined in Executive Order 12866. In 
addition, it does not concern an environmental or safety risk that we 
have reason to believe may have a disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
government and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.''
    The proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes. It is generally consistent with current 
agency practice and does not impose new substantive requirements. 
Therefore, Executive Order 13175 does not apply to this proposed rule.

Environmental Documentation

    The Corps prepares appropriate environmental documentation, 
including Environmental Impact Statements when required, for all permit 
decisions. Therefore, environmental documentation under the National 
Environmental Policy Act is not required for this proposed rule. 
Appropriate environmental documentation has been prepared for each NWP.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. The proposed rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    The proposed rule is not expected to negatively impact any 
community, and therefore is not expected to cause any 
disproportionately high and adverse impacts to minority or low-income 
communities.

Executive Order 13211

    The proposed rule is not a ``significant energy action'' as defined 
in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. The 
proposed rule updates regulations for implementing the Nationwide 
Permit Program. The proposed rule is consistent with current agency 
practice, does not impose new substantive requirements and therefore 
will not have a significant adverse effect on the supply, distribution, 
or use of energy.

[[Page 69567]]

List of Subjects in 33 CFR Part 330

    Administrative practice and procedure, Intergovernmental relations, 
Navigation (water), Water pollution control, Waterways.

    Dated: November 23, 2004.
Don T. Riley,
Major General, U.S. Army, Director of Civil Works.

    For the reasons stated in the preamble, the Corps proposes to amend 
33 CFR part 330 as follows:

PART 330--NATIONWIDE PERMIT PROGRAM

    1. The authority citation for part 330 continues to read as 
follows:

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 
1413.

    2. Amend Sec.  330.1 by revising paragraph (e)(1) to read as 
follows:


Sec.  330.1  Purpose and policy.

* * * * *
    (e) * * * (1) In most cases, permittees may proceed with activities 
authorized by NWPs without notifying the DE. However, the prospective 
permittee should carefully review the language of the NWP to ascertain 
whether he must notify the DE prior to commencing the authorized 
activity. For NWPs requiring advance notification, such notification 
must be made in writing as early as possible prior to commencing the 
proposed activity. The permittee may presume that his project qualifies 
for the NWP unless he is otherwise notified by the DE within a 45-day 
period. The 45-day period starts on the date of receipt of the 
notification in the Corps district office and ends 45 calendar days 
later regardless of weekends or holidays. If the DE notifies the 
prospective permittee that the notification is incomplete, a new 45-day 
period will commence upon receipt of the revised notification. The 
prospective permittee may not proceed with the proposed activity before 
expiration of the 45-day period unless otherwise notified by the DE. If 
the DE fails to act within the 45-day period, he must use the 
procedures of 33 CFR 330.5 in order to modify, suspend, or revoke the 
NWP authorization.
* * * * *
    3. Amend Sec.  330.4 by revising paragraphs (c)(6) and (d)(6) to 
read as follows:


Sec.  330.4  Conditions, limitations, and restrictions.

* * * * *
    (c) * * *
    (6) In instances where a state has denied the 401 water quality 
certification for discharges under a particular NWP, permittees must 
furnish the DE with an individual 401 water quality certification or a 
copy of the application to the state for such certification. For NWPs 
for which a state has denied the 401 water quality certification, the 
DE will determine a reasonable period of time after receipt of the 
request for an activity-specific 401 water quality certification 
(generally 60 days), upon the expiration of which the DE will presume 
state waiver of the certification for the individual activity covered 
by the NWPs. However, the DE and the state may negotiate for additional 
time for the 401 water quality certification, but in no event shall the 
period exceed one (1) year (see 33 CFR 325.2(b)(1)(ii)). Upon receipt 
of an individual 401 water quality certification, or if the prospective 
permittee demonstrates to the DE state waiver of such certification, 
the proposed work can be authorized under the NWP. For NWPs requiring a 
45-day pre-construction notification the district engineer will 
immediately begin, and complete, his review prior to the state action 
on the individual section 401 water quality certification. If a state 
issues a conditioned individual 401 water quality certification for an 
individual activity, the DE will include those conditions as activity-
specific conditions of the NWP.
* * * * *
    (d) * * *
    (6) In instances where a state has disagreed with the Corps 
consistency determination for activities under a particular NWP, 
permittees must furnish the DE with an individual consistency 
concurrence or a copy of the consistency certification provided to the 
state for concurrence. If a state fails to act on a permittee's 
consistency certification within six months after receipt by the state, 
concurrence will be presumed. Upon receipt of an individual consistency 
concurrence or upon presumed consistency, the proposed work is 
authorized if it complies with all terms and conditions of the NWP. For 
NWPs requiring a 45-day pre-construction notification the DE will 
immediately begin, and may complete, his review prior to the state 
action on the individual consistency certification. If a state 
indicates that individual conditions are necessary for consistency with 
the state's Federally-approved coastal management program for that 
individual activity, the DE will include those conditions as activity-
specific conditions of the NWP unless he determines that such 
conditions do not comply with the provisions of 33 CFR 325.4. In the 
latter case the DE will consider the conditioned concurrence as a non-
concurrence unless the permittee chooses to comply voluntarily with all 
the conditions in the conditioned concurrence.
* * * * *
    4. Amend Sec.  330.6 by revising paragraph (a)(3)(ii) to read as 
follows:


Sec.  330.6  Authorization by nationwide permit.

    (a) * * *
    (3) * * *
    (ii) The DE's response will state that the verification is valid 
for a specific period of time (generally until the expiration date of 
the NWP ) unless the NWP authorization is modified, suspended, or 
revoked. The response should also include a statement that the 
verification will remain valid for the specified period of time, if 
during that time period, the NWP authorization is reissued without 
modification or the activity complies with any subsequent modification 
of the NWP authorization. Furthermore, the response should include a 
statement that the provisions of Sec.  330.6(b) will apply, if during 
that period of time, the NWP authorization expires, or is suspended or 
revoked, or is modified, such that the activity would no longer comply 
with the terms and conditions of an NWP.
    Finally, the response should include any known expiration date that 
would occur during the specified period of time. A period of time less 
than the amount of time remaining until the expiration date of the NWP 
may be used if deemed appropriate.
* * * * *
[FR Doc. 04-26263 Filed 11-29-04; 8:45 am]
BILLING CODE 3710-92-P