[Federal Register Volume 72, Number 47 (Monday, March 12, 2007)]
[Notices]
[Pages 11092-11198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3960]



[[Page 11091]]

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Part II





Department of Defense





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Department of the Army, Corps of Engineers



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Reissuance of Nationwide Permits; Notice

  Federal Register / Vol. 72, No. 47 / Monday, March 12, 2007 / 
Notices  

[[Page 11092]]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

[ZRIN 0710-ZA02]


Reissuance of Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final notice.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is reissuing all 
existing nationwide permits (NWPs), general conditions, and 
definitions, with some modifications. The Corps is also issuing six new 
NWPs, two new general conditions, and 13 new definitions. The effective 
date for the new and reissued NWPs will be March 19, 2007. These NWPs 
will expire on March 18, 2012. The NWPs will protect the aquatic 
environment and the public interest while effectively authorizing 
activities that have minimal individual and cumulative adverse effects 
on the aquatic environment.

DATES: The NWPs and general conditions will become effective on March 
19, 2007.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO, 441 G Street 
NW., Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by 
e-mail at [email protected] 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 September 26, 2006, issue of the Federal Register (71 FR 
56258), the U.S. Army Corps of Engineers (Corps) published its proposal 
to reissue 43 existing nationwide permits (NWPs) and issue six new 
NWPs. The Corps also proposed to reissue its general conditions and add 
one new general condition.
    The Corps proposal is intended to simplify the NWP program while 
continuing to provide environmental protection, by ensuring that the 
NWPs authorize only those activities that have minimal individual and 
cumulative adverse effects on the aquatic environment and satisfy other 
public interest factors.
    As a result of the comments received in response to the September 
26, 2006, proposal, we have made a number of changes to the NWPs, 
general conditions, and definitions to further clarify the permits, 
facilitate their administration, and strengthen environmental 
protection. These changes are discussed in the preamble.
    The Corps is reissuing the 43 existing NWPs, issuing six new NWPs, 
reissuing 26 existing general conditions, and issuing one new general 
condition. The Corps is also reissuing many of the NWP definitions, and 
providing 13 new definitions. The effective date for these NWPs, 
general conditions, and definitions is March 19, 2007. These NWPs, 
general conditions, and definitions expire on March 18, 2012.
    While the Administrative Procedure Act requires a substantive rule 
to be published in the Federal Register at least 30 days before its 
effective date, exceptions to this requirement can be made for good 
cause (5 U.S.C. 553(d)(3)). We are utilizing this good cause exception 
to reduce hardships on the regulated public.

Grandfather Provision for Expiring NWPs

    In accordance with 33 CFR 330.6(b), activities authorized by the 
current NWPs issued on January 15, 2002, that have commenced or are 
under contract to commence by March 18, 2007, will have until March 18, 
2008, to complete the activity under the terms and conditions of the 
current NWPs.

Clean Water Act Section 401 Water Quality Certifications (WQC) and 
Coastal Zone Management Act (CZMA) Consistency Determinations

    In the September 26, 2006, Federal Register notice and concurrent 
with letters from Corps Districts to the appropriate state agencies, 
the Corps requested initial 401 certifications and CZM consistency 
determinations. This began the Clean Water Act section 401 water 
quality certification (WQC) and Coastal Zone Management Act (CZMA) 
consistency determination processes.
    Today's Federal Register notice begins the 60-day period for 
states, Indian Tribes, and EPA to complete their WQC process for the 
NWPs. This Federal Register notice also provides a 60-day period for 
coastal states to complete their CZMA consistency determination 
processes. This 60-day period will end on May 11, 2007.
    While the states, Indian Tribes, and EPA complete their WQC 
processes and the states complete their CZMA consistency determination 
processes, the use of an NWP to authorize a discharge into waters of 
the United States is contingent upon obtaining individual water quality 
certification or a case-specific WQC waiver. Likewise, the use of an 
NWP to authorize an activity within, or outside, a state's coastal zone 
that will affect land or water uses or natural resources of that 
state's coastal zone, is contingent upon obtaining an individual CZMA 
consistency determination, or a case-specific presumption of CZMA 
concurrence. We are taking this approach to reduce the hardships on the 
regulated public that would be caused by a substantial gap in NWP 
coverage if we were to wait 60 days before these NWPs would become 
effective.
    After the 60-day period, the latest version of any written position 
take by a state, Indian tribe, or EPA on its WQC for any of the NWPs 
will be accepted as the state's final position on those NWPs. If the 
state, Indian tribe, or EPA takes no action by May 11, 2007, WQC will 
be considered waived for those NWPs.
    After the 60-day period, the latest version of any written position 
take by a state on its CZMA consistency determination for any of the 
NWPs will be accepted as the state's final position on those NWPs. If 
the state takes no action by May 11, 2007, CZMA concurrence will be 
presumed for those NWPs.

Discussion of Public Comments

I. Overview

    In response to the September 26, 2006, Federal Register notice, we 
received more than 22,500 comments. We reviewed and fully considered 
all comments received in response to that notice.

General Comments

    Many commenters provided general support for the proposal, and some 
of them stated that the changes are a step forward in improving 
consistency in the NWP program. Some commenters said that the proposed 
NWPs provide a balance between environmental protection and allowing 
development to occur. One commenter said that the NWP program provides 
sufficient environmental protection, through its general conditions and 
the ability for the district engineer to exercise discretionary 
authority to require individual permits. Several commenters stated that 
the proposed NWPs are simpler, clearer, and easier to understand. Three 
commenters said that further streamlining is necessary. One commenter 
recommended adopting a standard numbering system for paragraphs and 
subparagraphs within the NWP text. Three commenters said that the Corps 
should retain appropriate references to general conditions in the text 
of NWPs, for purpose of clarification.
    To the extent that it is feasible, we have adopted a standard 
format for the

[[Page 11093]]

NWPs. Some NWPs require different formats, to make them easier to read 
and provide further clarification. For the most part, it is not 
necessary to retain references to general conditions in the text of the 
NWPs, except for general condition 27, Pre-Construction Notification, 
because most general conditions apply to all NWPs.
    In contrast, a few commenters said that the proposed NWPs are not 
simpler and clearer. Three commenters declared that the proposed NWPs 
are more like individual permits than general permits. A number of 
commenters asserted that the proposed NWPs will significantly increase 
costs and delays for permit applicants. Four commenters said that the 
attempt at clarification and simplicity will reduce the flexibility of 
the NWP program.
    The NWPs issued today are not similar to individual permits. The 
NWPs provide a streamlined form of Department of the Army authorization 
for those activities that result in minimal individual and cumulative 
adverse effects on the aquatic environment and satisfy other public 
interest review factors. In 2003, the average processing time for NWPs 
was 27 days and for individual permits it was 144 days. In response to 
comments received as a result of the September 26, 2006, Federal 
Register notice, we have modified some of the proposed NWPs to address 
provisions that could have unnecessary negative effects on regulatory 
efficiency and environmental protection.
    Other commenters expressed general opposition to the proposal, and 
said that the proposal weakens protection for waters and should be 
withdrawn. Many of these commenters objected to the goals of 
``streamlining'' or ``improving regulatory efficiency,'' stating that 
the focus of the NWPs should be on compliance with the Clean Water Act. 
Some commenters expressed opposition to the issuance of the NWPs, and 
said that activities proposed for NWP authorization should be 
individually subjected to a public notice and comment process. One 
commenter suggested that pre-construction notifications should be 
posted on district web sites for at least 30 days before an NWP 
verification is issued, to allow for public comment on those proposed 
activities.
    The NWPs issued today comply with the requirements of the Clean 
Water Act. When the Clean Water Act was amended in 1977, Congress 
recognized the importance of general permits for the effective and 
efficient implementation of section 404. We do not agree that pre-
construction notifications should be posted on the Internet for a 
public comment period. The review of pre-construction notifications by 
district engineers is sufficient for effective environmental 
protection. Some NWP activities require coordination with other Federal 
and/or State agencies, which provides a supplemental level of 
environmental protection. The activities authorized by NWPs have 
minimal adverse effects and are limited, within each permit, to 
narrowly defined categories of similar activities. Notice and 
opportunity for public comment on the authorization of these activities 
through NWPs is provided as part of the NWP promulgation process. The 
Corps believes this is the appropriate level of public notice and 
comment for these types of activities. Further, when reviewing pre-
construction notifications, district engineers will exercise 
discretionary authority to require individual permits for those 
activities that they determine may result in more than minimal adverse 
effects on the aquatic environment or do not satisfy other public 
interest review factors, and thus warrant a more thorough individual 
review through a public notice and comment process.
    Some commenters stated that the NWPs should require consideration 
of less damaging alternatives, and others said that the Corps did not 
provide sufficient scientific justification for proposed changes to the 
NWPs, or demonstrate that NWP activities result in minimal adverse 
environmental effects. One commenter said that there is not sufficient 
emphasis on avoidance of impacts to waters of the United States. 
Another commenter objected to using NWPs to expand existing projects, 
stating that it discourages avoidance and minimization.
    The NWPs authorize only those activities that result in minimal 
individual and cumulative adverse effects on the aquatic environment, 
and thus do not include a formal process for consideration of less 
damaging alternatives. General condition 20, Mitigation, requires 
permittees to avoid and minimize adverse effects to the maximum extent 
practicable on the project site. The Corps believes this ensures 
sufficient consideration of alternatives for the types of low-impact 
projects that are eligible for authorization through NWPs. The Corps 
notes that expansion of existing projects may support the goals of 
avoidance and minimization, in contrast to the alternative of 
developing new sites, which may involve more substantial adverse 
impacts. The 404(b)(1) Guidelines contain flexibility for those 
activities that result in minimal adverse effects on the aquatic 
environment. Compliance with the National Environmental Policy Act and 
the Section 404(b)(1) Guidelines is accomplished through decision 
documents prepared by the Corps. These decision documents contain 
findings that the NWPs result in minimal adverse effects, and are based 
on available data at the national scale. Division engineers issue 
supplemental decision documents for use of NWPs within Corps district 
boundaries.
    Several commenters said that the NWPs do not protect small wetlands 
and waterbodies enough, and one commenter said that the proposed 
permits do not support the ``no overall net loss'' goal for wetlands. 
In contrast, one commenter stated that the proposal provides adequate 
protection to the environment and supports the ``no overall net loss'' 
of wetlands goal.
    The NWPs protect all jurisdictional waters, including small 
wetlands and other waterbodies, through their terms and conditions, 
such as acreage limits and linear foot limits. The NWPs also support 
the ``no overall net loss goal'' through mitigation requirements, 
including aquatic resource restoration, establishment, enhancement, and 
preservation activities that may be required as compensatory 
mitigation. As noted above, general condition 20, Mitigation, also 
includes requirements for on-site avoidance and minimization.
    Two commenters objected to allowing district engineers to issue 
waivers that allow permittees to exceed the limits of NWPs, stating 
that such waivers do not support the minimal adverse effects 
requirement. Two commenters said that the NWPs authorize unlimited 
impacts to waters of the United States. One commenter remarked that 
acreage limits should be consistent for all NWPs. One commenter stated 
that the acreage limits in the proposed NWPs are sufficient to ensure 
minimal adverse effects. Three commenters asserted that the acreage 
limits of the proposed NWPs are too low, and they reduce the 
effectiveness of the NWP program. One commenter said that the low 
acreage limits for the NWPs lessen incentives to reduce impacts to 
waters, since many projects that previously qualified for NWP 
authorization now require individual permits. Another commenter stated 
that the acreage limits for all NWPs should be based on appropriate 
scientific and environmental criteria.
    Many of the NWPs have acreage limits, and most of those that do not 
are self-limiting due to the nature of the authorized activity (e.g., 
NWP 1 for aids to navigation or NWP 10 for mooring

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buoys). Acreage limits in NWPs cannot be waived by the district 
engineer. Linear foot limits in some permits can be waived, but only 
for intermittent and ephemeral (not perennial) streams. Two NWPs (i.e., 
NWPs 13 and 36) have cubic yard limits that may be waived. Those NWPs 
that contain provisions allowing district engineers to waive linear 
foot or cubic yard limits require the district engineer to make a 
written determination of minimal adverse effects. In such cases, the 
permittee cannot assume that a waiver was granted if the district 
engineer does not affirm that waiver in writing (see general condition 
27). The Corps believes these limited waiver provisions are appropriate 
because activities that exceed the limits may still have minimal 
adverse impacts and it may require a site-specific evaluation by the 
district engineer to decide if they do. Other NWPs that do not have 
limits typically provide environmental benefits, such as aquatic 
resource restoration activities authorized by NWP 27 or hazardous and 
toxic waste cleanup activities authorized by NWP 38.
    NWPs 21, 49, and 50 are a special case, in that they authorize 
activities for which review of environmental impacts, including impacts 
to aquatic resources, is separately required under other Federal 
authorities (e.g., Surface Mining Control and Reclamation Act (SMCRA) 
permits for coal mining activities). The Corps believes it would be 
unnecessarily duplicative to separately require the same substantive 
analyses through an individual permit application as are already 
required under SMCRA. However, through the pre-construction 
notification review process, the district engineer will consider the 
analyses prepared for the SMCRA permit and exercise discretionary 
authority to require an individual permit in cases where the district 
engineer determines, after considering avoidance and reclamation 
activities undertaken pursuant to SMCRA, that the residual adverse 
effects are not minimal. The project sponsor is required to obtain 
written verification prior to commencing work.
    The acreage limits for the NWPs are established so that they 
authorize most activities that result in minimal adverse effects on the 
aquatic environment. We acknowledge that there may be some activities 
that exceed the acreage limits and still have minimal impacts but the 
Clean Water Act requires us to ensure that all projects authorized by 
NWPs have minimal impacts, not that all minimal-impact projects can be 
authorized by NWPs. Activities that are not authorized through NWPs may 
be authorized through regional general permits or individual permits.
    One commenter stressed that the NWPs must be reissued in time, so 
that there is no gap between the expiration date of the current NWPs 
and the effective date of the new NWPs. Two commenters recommended 
administratively extending the current NWPs until the effective date of 
the new NWPs, through 5 U.S.C. 558(c), which is used to 
administratively extend National Pollutant Discharge Elimination System 
(NDPES) permits issued under Section 402 of the Clean Water Act.
    We cannot use 5 U.S.C. 558(c) to administratively extend the NWPs, 
since that provision of the Administrative Procedures Act applies only 
to activities of ``a continuing nature'' such as discharges of 
effluents authorized by National Pollutant Discharge Elimination System 
permits issued under Section 402 of the Clean Water Act. The vast 
majority of activities authorized by NWPs are construction activities, 
with specific start and end dates, either for the discharge of dredged 
or fill material into waters of the United States, or structures or 
work in navigable waters of the United States. In general, these NWP 
activities are not of a continuing nature, and do not meet the 
requirements of 5 U.S.C. 558(c). The grandfather provision at 33 CFR 
330.6(b) can be used to continue the authorization for those NWP 
activities that are under construction, or under contract to begin 
construction, after the NWP expires. This provision of the NWP 
regulations allows the permittee up to one year to complete the 
authorized NWP activity. Today's reissued and new permits will become 
effective on March 19, 2007, the day after the existing permits expire. 
Thus there will be no gap in coverage. The Corps expects that some 
States may be able to make their final Section 401 water quality 
certifications for all or some permits by this date. In cases where the 
State has not completed a 401 water quality certification by this time, 
the Corps will issue provisional verifications and permittees will be 
required to obtain individual State certifications prior to commencing 
discharges into waters of the United States.

Compliance With Section 404(e) of the Clean Water Act and the 404(b)(1) 
Guidelines

    Several commenters said that the proposed NWPs are contrary to the 
intent of section 404(e) to provide an expedited, streamlined permit 
program for activities that have minimal environmental impacts.
    The NWPs continue to provide a streamlined authorization process 
for those activities that result in minimal individual and cumulative 
adverse effects on the aquatic environment. Those activities that do 
not qualify for NWP authorization may be authorized by regional general 
permits or individual permits.
    Many commenters asserted that the NWPs result in more than minimal 
adverse effects on the aquatic environment, individually and 
cumulatively. Several commenters said that the NWPs do not comply with 
the 404(b)(1) Guidelines. One commenter said that the Corps should 
provide quantitative statistics on actual impacts, to predict 
cumulative impacts resulting from the NWPs. Two commenters believe that 
the draft decision documents do not adequately demonstrate that NWPs 
will result in minimal individual and cumulative impacts to waters of 
the United States. They said that there is not sufficient documentation 
to support estimates of the number of times an NWP will be used, the 
acres impacted, and the acres mitigated. They also stated that there 
should be more specific evaluations of particular types of waters, as 
well as landscape considerations. Four commenters said that the Corps 
cannot rely on mitigation to ensure minimal adverse effects, stating 
that the evaluation of minimal adverse effects must be completed prior 
to issuing a general permit. Therefore, the Corps cannot rely on 
mitigation that will be offered by permittees when making its finding 
under the 404(b)(1) Guidelines.
    When we issue the NWPs, we fully comply with the requirements of 
the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance of 
general permits under section 404. For the section 404 NWPs, each 
decision document contains a 404(b)(1) Guidelines analysis. Section 
230.7(b) of the 404(b)(1) Guidelines requires only a ``written 
evaluation of the potential individual and cumulative impacts of the 
categories of activities to be regulated under the general permit.'' 
Since the required evaluation must be completed before the NWP is 
issued, the analysis is predictive in nature. The estimates of 
potential individual and cumulative impacts, as well as the projected 
compensatory mitigation that will be required, are based on the best 
available data from the Corps district offices, based on past use of 
NWPs. In our decision documents, we also used readily available 
national data on the status of wetlands and other aquatic

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habitats in the United States, and the potential impacts of the NWPs on 
those waters.
    The 404(b)(1) Guidelines at 40 CFR 230.7 do not prohibit the 
consideration of mitigation when making the predictive evaluation of 
potential individual and cumulative impacts that may be authorized by 
an NWP. The practice of using compensatory mitigation to ensure minimal 
adverse individual and cumulative adverse effects is an important 
component of the NWP program (see 33 CFR 330.1(e)(3)).
    Two commenters said that the Corps cannot rely on regional 
conditioning and discretionary authority to ensure minimal adverse 
effects. One commenter objected to the ability of the district engineer 
to exercise discretionary authority to impose conditions on NWP 
activities. Another commenter stated that in order to ensure minimal 
adverse effects, pre-construction notification should be required for 
all NWPs. A number of commenters said that many of the NWPs do not 
authorize activities that are similar in nature. They said that the 
Corps is required to explain why activities authorized by an NWP are 
similar in nature to warrant authorization under a single NWP.
    The pre-construction notification review process and discretionary 
authority are important tools to help ensure that the NWPs authorize 
only those activities with minimal individual and cumulative adverse 
effects. If the district engineer reviews a pre-construction 
notification and determines that the impacts are more than minimal, 
discretionary authority will be exercised and either the NWP will be 
conditioned to require mitigation or other actions to ensure minimal 
adverse effects or an individual permit will be required. The Corps 
disagrees that pre-construction notification is necessary for all NWP 
activities. However, the Corps has expanded the scope of activities 
requiring pre-construction notification. Specifically, all activities 
conducted under NWPs 7, 8, 17, 21, 29, 31, 33, 34, 37, 38, 39, 40, 42, 
44, 45, 46, 49, and 50 now require pre-construction notification, 
regardless of acreage impacted. This will enable district engineers to 
better ensure that these permits authorize only activities with minimal 
impacts.
    These NWPs satisfy the requirement under Section 404(e) of the 
Clean Water Act that the categories of authorized activities be similar 
in nature. The ``similar in nature'' provision does not require NWP 
activities to be identical to each other. We believe that the 
``categories of activities that are similar in nature'' requirement of 
section 404(e) is to be interpreted broadly, for practical 
implementation of this general permit program. Nationwide permits, as 
well as other general permits, are intended to reduce administrative 
burdens on the Corps and the regulated public, by efficiently 
authorizing activities that have minimal adverse environmental effects. 
For each NWP that authorizes activities under Section 404 of the Clean 
Water Act, the 404(b)(1) Guidelines analysis provides a brief 
explanation as to why the activities authorized by that NWP are similar 
in nature.
    One commenter said that consideration of impacts resulting from 
general permits should not be limited to the aquatic environment. This 
commenter said that Section 404(e) of the Clean Water Act requires 
permitted activities to have minimal impacts on the environment as a 
whole.
    In addition to the requirement that there be no more than minimal 
adverse effects on the aquatic environment, activities authorized by 
NWPs must also result in minimal adverse effects with regards to the 
Corps public interest factors (see 33 CFR 330.1(d)), which include 
other components of the environment.

Compliance With the National Environmental Policy Act

    Many commenters said that the Corps must complete an Environmental 
Impact Statement for the proposed NWPs. One commenter remarked that the 
EIS must consider the individual impacts of the NWPs, as well as their 
cumulative impacts. One comment asserted that mitigation cannot be used 
to justify using an environmental assessment for NEPA compliance, 
instead of an Environmental Impact Statement.
    The NWPs authorize activities that have minimal individual and 
cumulative adverse effects on the aquatic environment and satisfy other 
public interest review factors. The NWPs do not reach the level of 
significance required for an EIS. The Corps complies with the 
requirements of the NEPA by preparing an environmental assessment for 
each NWP. When an NWP is issued, a Finding of No Significant Impact is 
also issued.
    The use of mitigation to make a Finding of No Significant Impact is 
a standard practice for NEPA compliance. For the purposes of NEPA, 
mitigation includes avoiding impacts, minimizing impacts, rectifying 
impacts through repairing or restoring the affected environment, 
reducing or eliminating impacts over time through preservation and 
maintenance activities, and compensating for impacts by replacing or 
providing resources or environments (see 40 CFR 1508.20). Through the 
requirements of general condition 20, Mitigation, the review of pre-
construction notifications by district engineers, and regional and 
special conditions imposed on the NWPs by division and district 
engineers, NWP activities use all these forms of mitigation so that the 
adverse effects of the NWPs do not reach the level of significance that 
requires an Environmental Impact Statement.
    Several commenters stated that the draft decision documents do not 
satisfy the requirements of the National Environmental Policy Act 
(NEPA). Some commenters said that the analyses in the decision 
documents are not based on realistic data. One commenter noted that the 
average impact is often much less than the acreage limit for the NWP, 
and said that the mitigation ratios seem too high. One commenter said 
that the environmental assessments in draft decision documents must 
contain site-specific analyses. Two commenters asserted that the 
cumulative effects analyses in the decision documents are inadequate. 
One commenter said that the cumulative effects analysis should include 
information on the past use of NWPs, as well as information on other 
development activities expected to have impacts on protected resources.
    We believe the data in the draft decision documents comply with the 
requirements of NEPA. The estimates of the projected use of the NWPs, 
the acres impacted, and the amount of compensatory mitigation are based 
on available data from Corps district offices, and other sources of 
data, such as surveys. Those data are based on pre-construction 
notifications and other requests for NWP verifications for activities 
that do not require pre-construction notification. For those NWP 
activities that do not require notification, it is necessary to derive 
estimates. For the decision documents, we must use predictive data, 
since the future use of an NWP is speculative. Likewise, we cannot 
provide site-specific information for these environmental assessments, 
because there are no specific sites or projects associated with the 
proposed issuance of an NWP. Authorized impacts are usually much less 
than the acreage limit for an NWP because of the avoidance and 
minimization required by the terms and conditions of the NWPs. The 
compensatory mitigation data provided in the decision documents include 
preservation.

[[Page 11096]]

    On June 24, 2005, the Council on Environmental Quality issued 
guidance on the consideration of past actions for cumulative effects 
analyses. According to this guidance, the cumulative effects analysis 
needs to consider relevant past actions that can be used to analyze 
reasonably foreseeable effects that have ``a continuing, additive, and 
significant relationship to those effects.'' The guidance also 
recommends that agencies look at the present effects of past actions 
that are relevant because of significant cause-and-effect relationships 
with the effects for the proposed action and its alternatives. Except 
for a few activities, the NWPs do not authorize activities of a 
continuing nature. In general, they authorize construction activities 
with specific start and end dates. The NWPs can be issued for only a 
period of five years or less, and once an NWP expires, it cannot be 
used to authorize activities in waters of the United States. An 
activity must then be authorized by the reissued NWP, another NWP, a 
regional general permit, or an individual permit. The cumulative 
effects analysis is more properly focused on the permits that can be 
used to authorize regulated activities, not past permits that have 
expired. Therefore, the cumulative effects analysis for the NWP 
issuance needs to focus on the reasonably foreseeable cumulative 
effects that are expected to occur during the five year period the NWPs 
are valid. We use information on past use of the NWPs to estimate how 
often an NWP will be used during the period it will be valid, and to 
estimate the impacts and compensatory mitigation resulting from the use 
of that NWP.
    One commenter requested clarification as to whether the draft 
decision documents included an environmental assessment, an EIS, or 
another type of NEPA document. Two commenters remarked that the Corps 
failed to solicit public comment on the environmental assessments for 
the proposed NWPs. Two commenters objected to the Finding of No 
Significant Impact (FONSI) in each draft decision document, stating 
that it is inappropriate to do a FONSI for a proposed action. Another 
commenter concurred with the FONSI found in each NWP decision document. 
One commenter said that the draft decision documents accurately 
analyzed anticipated environmental effects of the proposed NWPs.
    A draft environmental assessment was prepared for each of the 
proposed NWPs. The draft environmental assessment was in the draft 
decision document, along with the draft statement of findings and, if 
the NWP authorized activities under Section 404 of the Clean Water Act, 
a draft Section 404(b)(1) Guidelines analysis. Those draft decision 
documents were available for public review and comment at the same time 
as the proposed NWPs, general conditions, and definitions. A number of 
commenters who commented on the proposed NWPs also commented on the 
draft decision documents. Commenters could also provide input on the 
draft FONSI in each decision document.

Compliance With the Endangered Species Act

    In the September 26, 2006, Federal Register notice, we stated that 
we will conduct Endangered Species Act Section 7(a)(2) consultation for 
the NWPs. Since the issuance of the September 26, 2006, proposal, the 
Corps has been working with the National Marine Fisheries Service 
(NMFS) and the U.S. Fish and Wildlife Service (USFWS) to develop an 
analysis plan to guide the formal programmatic Section 7 consultation 
for the NWPs. As soon as the analysis plan is completed, the Corps will 
request programmatic Endangered Species Act Section 7(a)(2) 
consultation with the USFWS and NMFS. Prior to the effective date of 
these NWPs, the Corps will issue a section 7(d) determination for the 
NWP Program.
    Two commenters said the Corps must conduct Endangered Species Act 
consultation before the NWPs are issued. One of these commenters said 
that the Corps must conduct programmatic section 7 consultation for the 
NWP program, with mandatory district-by-district formal consultations. 
One commenter requested a timeline for the programmatic Section 7 
consultation with the USFWS and NMFS. Another commenter asked for 
clarification whether Section 7 ESA consultation will be conducted for 
each NWP authorization or the NWP program as a whole. One commenter 
objected to the Corps conducting section 7 consultation for coal mining 
activities authorized by the Surface Mining Control and Reclamation 
Act.
    The programmatic ESA consultation will be conducted for the NWP 
program as a whole, and will be concluded as expeditiously as possible. 
To address ESA compliance while programmatic consultation is being 
conducted, a revised Section 7(d) determination will be issued for the 
NWP program before the effective date of these NWPs. The Section 7(d) 
determination discusses how the issuance of these NWPs will not 
foreclose any options. The requirements of general condition 17 and 33 
CFR 330.4(f) will ensure compliance with the ESA. We anticipate that 
the programmatic consultation will result in a biological opinion that 
provides tools that districts can use to better address potential 
impacts to the endangered and threatened species that occur in their 
areas of regulatory jurisdiction. Corps districts will conduct their 
own formal Section 7 consultations as necessary. The programmatic 
consultation will be conducted for the NWP program; its applicability 
to NWP 21 and other NWPs will be addressed as part of the programmatic 
consultation itself.
    One commenter said that the Corps cannot rely on permit applicants 
to notify them in cases where ESA consultation is necessary. Two 
commenters said that the proposed changes to general condition 17, 
which requires district engineers to notify prospective permittees of 
their ``no effect'' or ``may affect'' determinations within 45 days of 
receipt of a complete pre-construction notification, violates the ESA 
since the Corps will be unable to make its decision based on the best 
available science. Two commenters said that the Corps must require pre-
construction notifications for all NWP activities to help ensure 
compliance with the requirements of the ESA. Two other commenters 
stated that species-specific regional conditions must be imposed on the 
NWPs to protect endangered and threatened 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 if the project is located in 
designated critical habitat, and in such cases 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. This requirement applies even when a pre-construction 
notification would not otherwise be required. In such cases, this 
condition also prohibits the prospective permittee from conducting the 
NWP activity until the district engineer notifies him or her that the 
requirements of the ESA have been fulfilled and the activity is 
authorized by NWP. The ESA 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 modify designated 
critical habitat. In some districts, regional conditions will be 
imposed on the NWPs to protect listed species and critical habitat.
    The notification requirement in general condition 17 does not 
violate the ESA. Forty-five days is generally

[[Page 11097]]

sufficient to screen proposed activities for potential effects to 
endangered and threatened species or designated critical habitat, and 
determine if section 7 consultation is necessary. The notification 
requirement will help improve ESA compliance by keeping the prospective 
permittee aware of the status of his or her pre-construction 
notification and preclude applicants from assuming that they can 
proceed after the 45 day pre-construction notification period has 
ended, if they have not heard back from the Corps that ESA requirements 
have been fulfilled and the activity is authorized. Districts will 
continue to develop regional conditions to further protect endangered 
and threatened species, as well as critical habitat.

Linear Foot Limits for Stream Bed Impacts

    In the September 26, 2006, Federal Register notice, we proposed to 
modify several NWPs to include ephemeral streams in the 300 linear foot 
limits for losses of stream beds. We also proposed to allow district 
engineers to issue written waivers to the 300 linear foot limit for 
intermittent and ephemeral streams, upon making a determination that 
the adverse effects on the aquatic environment will be minimal. Many 
commenters objected to including ephemeral streams in the 300 linear 
foot limit for stream beds for NWPs 29, 39, 40, 42, and 43. Many other 
commenters supported the proposed change. A large number of commenters 
objected to allowing district engineers to waive the 300 linear foot 
limit, stating that miles of stream bed could be lost, resulting in 
more than minimal adverse environmental effects. A few commenters 
supported the proposed waiver. One commenter said that limits to 
filling or excavating ephemeral streams should be addressed through the 
regional conditioning process, instead of the national terms and 
conditions of the NWPs. Another commenter recommended imposing a higher 
linear foot limit for losses of ephemeral streams.
    Ephemeral streams are important components of the stream network. 
Applying the 300 linear foot limit to ephemeral stream beds will help 
ensure that the applicable NWPs will authorize activities with minimal 
individual and cumulative adverse effects on the aquatic environment. 
The ability of district engineers to issue written waivers of the 300 
linear foot limit for intermittent and ephemeral stream beds provides 
flexibility in the administration of the NWP program. In cases where 
the 300 linear foot limit is waived, the acreage limit of the NWP still 
applies. We believe it is more appropriate to limit losses of ephemeral 
stream beds through the national NWP terms and conditions, to provide 
consistent protection for those waters across the country. Regional 
differences in the values applied to ephemeral stream functions and 
services can be addressed through the waiver process. We believe the 
300 linear foot limit, in conjunction with the waiver process, provides 
sufficient flexibility for the NWP program while ensuring minimal 
adverse effects.
    Three commenters recommended that the Corps modify its definition 
of ``ephemeral stream'' to simplify the process of distinguishing 
between ephemeral and intermittent streams instead of applying the 300 
linear foot limit to ephemeral streams. Another commenter indicated 
that the difficulty of distinguishing between ephemeral and 
intermittent streams is sufficient justification for including 
ephemeral streams in the 300 linear foot limit. In contrast, several 
commenters stated that including ephemeral streams in the 300 linear 
foot limit would not simplify the administration of the NWP program, 
because it would result in a large number of individual permits, as 
well as substantial increases in the Corps workload. Two commenters 
asked the Corps to establish criteria for determining when a waiver of 
the 300 linear foot limit can be issued. One commenter stated that the 
300 linear foot limit should not apply to filling or excavating 
drainage ditches. One of these commenters said that an acreage limit 
should be applied to streams, instead of a linear foot limit.
    Modifying the definition of ``ephemeral stream'' is not an 
appropriate alternative to modifying the 300 linear foot limit. The 
definitions of ``ephemeral stream'' and ``intermittent stream'' that 
were first promulgated for the NWPs in 2000 are based on the hydrologic 
differences between those stream types, especially the differences in 
how the stream bed interacts with the water table. We do not agree that 
the changes to the 300 linear foot limit will result in a large 
increase in the number of individual permits processed per year. Under 
the current NWPs, district engineers could exercise discretionary 
authority and require individual permits if proposed impacts to 
ephemeral streams would be more than minimal. We do not believe it 
would be appropriate to establish national criteria for determining 
when a waiver of the 300 linear foot limit would be applied. These 
determinations should be made on a case-by-case basis by district 
engineers, depending upon assessments of site-specific conditions. Even 
though the acreage limits of NWPs 29, 39, 40, 42, and 43 also apply to 
losses of stream bed, the linear foot limit is a useful tool for 
ensuring minimal adverse effects to these linear aquatic ecosystems. 
The 300 linear foot limit for filling and excavating stream beds does 
not apply to ditches constructed in wetlands, or to ditches constructed 
in uplands that are determined to be waters of the United States. 
However, the 300 linear foot limit does apply to ditches that are 
constructed by modifying streams through channelization or other 
activities.

Pre-Construction Notification

    Many commenters objected to the proposal to add or expand pre-
construction notification requirements for several NWPs, and a few of 
these commenters said that lowering the pre-construction notification 
threshold will substantially increase the Corps workload. Several 
commenters stated that increasing the number of activities that require 
pre-construction notification will result in additional delays and 
costs for permit applicants. In contrast, a number of commenters said 
that pre-construction notification should be required for all NWP 
activities, so that site-specific concerns can be more effectively 
addressed. One commenter asserted that the use of the pre-construction 
notification process and the use of discretionary authority should be 
limited, to provide more certainty to the NWP authorization process. 
Another commenter said that the decision to lower pre-construction 
notification thresholds should be left to division engineers and the 
regional conditioning process, to provide more flexibility for the NWP 
program.
    Modifying NWPs 39, 40, 42, and 43 to require pre-construction 
notification for all activities will help ensure that these NWPs 
authorize only those activities that result in minimal individual and 
cumulative adverse effects on the aquatic environment and other public 
interest review factors, such as flood hazards and floodplain values. 
Corps districts have already been receiving large numbers of 
verification requests for NWP 39, 40, 42, and 43 activities that do not 
require pre-construction notification, so we believe that this change 
will not result in a substantial increase in our workload. In addition, 
the modified pre-construction notification threshold will facilitate 
compliance with the Endangered Species Act and Section 106 of the 
National Historic Preservation Act, by better ensuring notice of 
activities that

[[Page 11098]]

may have a higher likelihood of affecting endangered or threatened 
species, designated critical habitat, or historic properties. We do not 
agree that it is necessary to require pre-construction notifications 
for all NWP activities, because many NWP activities have negligible 
effects on the aquatic environment and the public interest review 
factors. We have focused the pre-construction notification requirements 
on those activities that have the potential for adverse effects that 
may require additional scrutiny by district engineers, including ESA 
and/or NHPA consultation.
    The pre-construction notification and discretionary authority 
processes provide flexibility to the Corps regulatory program, by 
allowing the Corps to focus its limited resources on activities that 
have the potential to have more than minimal adverse effects on the 
aquatic environment. We believe that the proposed changes to the pre-
construction notification thresholds are necessary for effective 
implementation of the NWP program, and to address issues of concern at 
the national level.
    One commenter objected to the increased use of the pre-construction 
notification process and the waivers of limits, such as the 300 linear 
foot limit for the loss of intermittent and ephemeral stream beds for 
certain NWPs, to authorize activities by NWP. Another commenter said 
that it is an administrative burden to require the use of NWP 33 with 
other NWPs when in-stream construction activities need to occur in dry 
conditions. This commenter said that NWP 33 should only be used when 
temporary work is done in waters of the United States, and no other NWP 
is needed to authorize permanent structures or fills for the activity. 
One commenter recommended requiring pre-construction notifications for 
filling waters of the United States that are five or more feet deep, 
because of the effects on the hydrologic balance of a region.
    The ability to waive limits after the review of a pre-construction 
notification and a written determination that the adverse effects of a 
particular NWP activity will be minimal provides flexibility to the NWP 
program, and allows the Corps to focus more of its resources on those 
activities that require individual permits and may have substantial 
adverse effects on the aquatic environment and the public interest. In 
the final NWPs, we have addressed the concern regarding the requirement 
to use NWP 33 for all temporary construction, access, and dewatering 
activities. Those changes are discussed in further detail for each 
applicable NWP. Many NWP activities that result in a discharge of 
dredged or fill material into waters of the United States, regardless 
of water depth, require pre-construction notification, which will allow 
district engineers to review those activities on a case-by-case basis 
and assess potential effects on the hydrologic balance of the area in 
the vicinity of the proposed work.
    One commenter said that the pre-construction notification process 
should be modified to require notification of Indian Tribes, to provide 
them with the opportunity to comment on proposed activities that may 
result in the violation of Indian rights. This commenter also said that 
if the Indian Tribe identifies a potential conflict with Federally-
protected Indian rights, the use of the NWPs should not be allowed.
    The regional conditioning process, as well as government-to-
government consultation between Tribes and the Corps districts where 
Tribal lands are located, are more appropriate mechanisms to address 
this commenter's concerns, since there are over 580 Federally-
recognized tribes, and each Tribe is likely to have different concerns 
regarding the implementation of the NWP program. General condition 16 
states that no NWP activity may impair reserved Tribal rights. 
Activities that do impair reserved Tribal rights are not authorized by 
NWPs. Regional conditions are an effective mechanism for addressing the 
concerns of a specific Indian Tribe, and can be used to facilitate 
working relationships between the Corps and the Tribe to help the Corps 
fulfill its trust responsibilities.

Clean Water Act Jurisdiction

    On June 19, 2006, the Supreme Court issued its decision in the case 
of Rapanos et ux, et al, v. United States. Many commenters cited this 
decision, as well as other court decisions, and said that the proposed 
NWPs exceed the Corps jurisdictional authority under Section 404 of the 
Clean Water Act. Several commenters said that ephemeral streams are not 
subject to Clean Water Act jurisdiction and should not be covered in 
the NWPs. Another commenter asserted that intermittent streams are not 
waters of the United States.
    The Rapanos decision, as well as other court decisions made in the 
past several years, raises questions about the jurisdiction of the 
Clean Water Act, including Section 404, over some intermittent and 
ephemeral streams and their adjacent wetlands. The Corps will assess 
jurisdiction regarding such waters on a case-by-case basis in 
accordance with evolving case law and any future guidance that may be 
issued by appropriate Executive Branch agencies (e.g., the Corps, U.S. 
Environmental Protection Agency). Under the current regulations and 
guidance, intermittent and ephemeral streams may meet the regulatory 
definition of ``waters of the United States'' and be subject to Clean 
Water Act jurisdiction. Regulatory jurisdiction over these waterbodies 
will be determined on a case-by-case basis by district engineers, in 
accordance with current and future regulations and guidance.
    One commenter said that when applying the NWP acreage limits to 
wetlands, the Corps should not include all wetlands, just those subject 
to Clean Water Act jurisdiction. One commenter stated that a clearer 
definition of ``navigable waters'' is needed. Another commenter said 
that ditches are not waters of the United States, and impacts to 
ditches should instead be addressed through state programs. A commenter 
stated that the Corps must promulgate regulations to define ``waters of 
the United States'' for the purposes of implementing the NWP program.
    The acreage limits of the NWPs apply only to losses of waters of 
the United States, including jurisdictional wetlands (see the 
definition of the term ``loss of waters of the United States'' in the 
``Definitions'' section of the NWPs). Similarly, linear foot limits 
apply only to jurisdictional streams. Ditches may also be subject to 
jurisdiction under Section 404 of the Clean Water Act and/or Section 10 
of the Rivers and Harbors Act of 1899, if they meet the regulatory 
definitions of ``waters of the United States'' and/or ``navigable 
waters of the United States.'' Waters of the United States are defined 
at 33 CFR part 328 and navigable waters of the United States are 
defined at 33 CFR part 329.

Regional Conditioning of Nationwide Permits

    One commenter stated that regional conditions are unnecessary, and 
result in too much restriction of the NWPs. A commenter remarked that 
placing too many regional conditions on the NWPs is contrary to E.O. 
13274, Environmental Stewardship and Transportation Infrastructure 
Project Reviews. One commenter said that regional conditions should not 
be redundant with the requirements of other agencies, and the 
streamlining objective of the NWPs should be maintained.
    Regional conditions are necessary to account for regional 
differences in aquatic resource functions, services, and values and to 
ensure that the NWPs

[[Page 11099]]

authorize only those activities that have minimal individual and 
cumulative adverse effects on the aquatic environment and other public 
interest review factors. Regional conditions are important tools for 
protecting endangered and threatened species, designated critical 
habitat for those species, essential fish habitat, historic properties, 
and other important resources. As a general matter, we agree that 
regional conditions should not duplicate the requirements of other 
agencies, but the Corps often has the responsibility to comply with 
other statutes and regulations administered by other agencies.
    Two commenters said that there needs to be clearer rules for the 
adoption of regional conditions for the NWPs. A couple of commenters 
indicated that districts need to provide justifications for proposed 
regional condition, and make that information available to the public. 
Three commenters said that regional conditions should not be limited to 
further restricting the use of the NWPs. One commenter said that 
regional conditions should not be based on district boundaries. 
Instead, they should be based on ecoregions or other ecologically-
delineated areas. Another commenter recommended that the Corps work 
with other agencies to develop a list of high value wetlands in which 
NWPs cannot be used.
    Regional conditions may only further condition or restrict the 
applicability of an NWP (see 33 CFR 330.1(d)). In areas where 
environmental conditions and other circumstances warrant less 
restrictive general permit conditions, district engineers may issue 
regional general permits to authorize similar activities, as long as 
those general permits meet applicable requirements. The regulations 
governing the adoption of regional conditions are provided at 33 CFR 
330.5(c). We believe it is necessary to provide flexibility to division 
engineers to determine the necessity and appropriateness of regional 
conditions to address concerns regarding the use of NWPs in a 
particular area. The notices issued by Corps districts soliciting 
public comment on proposed regional conditions are required to include 
statements concerning the environmental factors or other public 
interest factors resulting in the need for regional conditions (see 33 
CFR 330.5(c)(1)). Regional conditions may be based on geographic areas 
other than district boundaries. Regional conditions may be imposed on 
the use of NWPs in watersheds, counties, states, ecoregions, or other 
types of areas. General condition 19, designated critical resource 
waters, provides a national list of high value waters. Districts can 
coordinate with other agencies to develop lists of high value wetlands 
within their district boundaries.

Data Collection

    One commenter said that the supporting data used by the Corps falls 
short of the standards required by the Data Quality Act of 2001, and 
the Office of Management and Budget's ``Guidelines for Ensuring and 
Maximizing the Quality, Objectivity, Utility, and Integrity of 
Information Disseminated by Federal Agencies.'' This commenter stated 
that the Corps should provide data on aquatic resource functions to 
support its minimal impact determinations.
    The data used for the NWP decision documents are the best available 
data at a national scale. The estimated impacts and mitigation provided 
in the decision documents were developed by reviewing and analyzing 
permit data from our district offices, as well as through consideration 
of how proposed changes to the NWPs would affect the amounts of 
authorized impacts and mitigation. Data on aquatic resource functions 
is generally not available. The National Wetland Inventory examines 
wetland status and trends for the conterminous United States, but 
information on wetland quality and function is not available.
    Three commenters expressed concern about tracking permanent and 
temporary impacts to waters of the United States and recommended that 
the Corps implement a national tracking and monitoring system. This 
system would also facilitate the sharing of information with 
cooperating resource agencies and help improve decision making.
    We are in the process of transitioning to a new automated 
information system (AIS) for the Corps regulatory program. The new AIS 
is version 2.0 of the ``OMBIL Regulatory Module'' (ORM 2.0). This 
national tracking and monitoring system will improve and standardize 
data collection for the Corps regulatory program, and will assist in 
decision-making for permit actions and other types of regulatory 
activities, such as jurisdictional determinations. ORM 2.0 will be 
spatially enabled, using geographic information systems and other 
analytical tools that will provide more efficient and effective 
processing of permit applications, jurisdictional determinations, and 
other tasks. Cumulative impact analysis will also be supported by ORM 
2.0. The structure of ORM 2.0 will also be standard among Corps 
districts, providing for more consistent information collection and 
storage, and will be readily available for analysis and reporting. The 
standard structure of ORM will also promote consistency in Regulatory 
Program implementation.
    ORM 2.0 will help improve data collection for the NWP program, as 
well as other types of permits issued by the Corps. Data collection 
will be more standard among permit types, especially for impact and 
mitigation data. We will continue to collect data on authorized losses 
of waters of the United States, including resource type, acreage, and 
impact type. ORM 2.0 incorporates several additional AIS resources to 
assist in the tracking of all required compensatory mitigation, 
including the amount, type (e.g., reestablishment), and source (i.e., 
permittee-responsible mitigation, mitigation bank, or in-lieu fee).
    ORM 2.0 will also facilitate compliance with the Endangered Species 
Act, the National Historic Preservation Act, and the essential fish 
habitat provisions of the Magnuson-Stevens Fishery Management and 
Conservation Act. Screening tools based on available data for those 
resources will help Corps personnel identify activities that may affect 
those resources and require further consultation. The available 
resource data will be provided by other agencies, through data sharing 
agreements. Available data sets from the national, state, and local 
levels can be utilized by ORM 2.0.
    ORM 2.0 is capable of supporting electronic interagency 
coordination. For activities that typically require interagency 
coordination and consultation, agencies will have the option of 
receiving electronic coordination notices and consultation requests and 
of responding to the Corps via a link to ORM 2.0. Agencies will be 
required to enter into a Memorandum of Agreement supporting the use of 
electronic communications for permit activities.
    ORM 2.0 will also include time tracking features to help remind 
Corps project managers when the end of the 45-day pre-construction 
notification review will occur. Monitoring and enforcement activities 
will also be supported by ORM 2.0, including the tracking of when 
monitoring reports for compensatory mitigation projects are due.
    ORM 2.0 will also support an electronic permit application, thereby 
allowing prospective permittees to submit their pre-construction 
notifications electronically to the appropriate Corps district. Permit

[[Page 11100]]

applicants will be able to check the status of their permit 
applications through the electronic permit Web site.

Other Issues

    One commenter said that the Corps should stop issuing NWPs until 
effective compensatory mitigation is provided for those permits. 
Several commenters stated that the Corps places too much reliance on 
compensatory mitigation, citing recent studies that concluded that 
compensatory mitigation projects often fail to achieve their 
objectives. A couple of commenters asserted that the Corps should not 
rely on compensatory mitigation to ensure minimal individual and 
cumulative adverse effects. Another commenter objected to the more 
stringent requirements for compensatory mitigation for NWP activities, 
stating that compensatory mitigation for small impacts tends to be more 
expensive than the costs to plan and construct the proposed activity 
requiring NWP authorization.
    Compensatory mitigation is an important mechanism to help ensure 
that the NWPs authorize activities that result in minimal individual 
and cumulative adverse effects on the aquatic environmental. We 
acknowledge that the ecological success of compensatory mitigation 
projects varies widely. Some compensatory mitigation projects fail to 
meet their objectives, while others do result in successful replacement 
of aquatic resource functions that are lost as a result of activities 
authorized by NWPs. We are committed to improving compliance for 
compensatory mitigation required for Department of the Army permits, 
including NWPs. District engineers have the flexibility to determine 
when compensatory mitigation should be required for activities 
authorized by NWPs. If it is not appropriate or practicable to require 
compensatory mitigation for a particular activity, and that activity 
will result in minimal adverse effects on the aquatic environment, then 
the district engineer may determine that compensatory mitigation is not 
necessary. Otherwise, if the proposed activity will result in more than 
minimal adverse effects on the aquatic environment after determining 
that compensatory mitigation is not appropriate or practicable, then an 
individual permit would be required.
    One commenter said that the NWPs do not distinguish between 
different types of waters, but combine waters when applying the acreage 
limit for the NWP. This commenter stated that the Corps needs to 
recognize that different types of waters often have different 
functions.
    The NWPs do recognize different types of waters. The terms and 
conditions of NWPs are often based on the characteristics of different 
types of waters. For example, NWP 39 does not authorize discharges of 
dredged or fill into non-tidal wetlands adjacent to tidal waters.
    One commenter said that the requirement for NWP activities to be 
single and complete projects should not be removed, citing the proposed 
changes to NWPs 13, 15, 18, and 19. This commenter stated that the 
requirement for single and complete projects does not appear outside of 
the Corps definition at 33 CFR 330.2(i). One commenter objected to the 
removal of the requirement in several NWPs to submit an avoidance/
minimization statement with the pre-construction notification.
    The requirement that NWPs authorize single and complete projects 
applies to all NWPs. Limiting the NWPs to authorize only single and 
complete projects is a long-standing practice, and we are adding a new 
general condition (GC 28) to clarify that the NWPs only authorize 
single and complete projects.
    The requirement for an avoidance/minimization statement that was in 
NWPs 39, 43, and 44 is not necessary, because we have modified NWP 39 
to require pre-construction notification for all activities, and we are 
requiring pre-construction notification for all construction and 
expansion of storm water management facilities under NWP 43. In 
addition, general condition 20 requires permittees to avoid and 
minimize adverse effects to waters of the United State to the maximum 
extent practicable on the project site. When reviewing a pre-
construction notification, the district engineer will determine whether 
sufficient avoidance and minimization of impacts to waters of the 
United States has occurred, and whether the activity complies with 
general condition 20. It is the responsibility of the district engineer 
to make this determination, and we do not believe it is appropriate to 
place that burden on the prospective permittee by requiring the 
submittal of a statement with the pre-construction notification.
    One commenter recommended that the Corps adopt an administrative 
appeal process for activities authorized by NWPs, which would provide 
for third party appeals. Another commenter said that compliance 
inspections should be conducted for a certain number of NWP activities 
per year. One commenter said that the Corps needs to do more 
enforcement and monitoring of activities authorized by NWPs.
    We do not believe it would be appropriate or necessary to establish 
an administrative appeal process for the NWP program, since the NWPs 
authorize only those activities that have minimal individual and 
cumulative adverse effects on the aquatic environment. The 
administrative appeal process at 33 CFR part 331 applies only to 
individual permits and jurisdictional determinations, and does not 
provide for third party administrative appeals.
    Performance measures established for the Regulatory Program require 
our district offices to conduct compliance inspections for a proportion 
of general permit activities occurring in a given year.
    One commenter said that the Corps should retain a separate NWP for 
aggregate mining activities (the current NWP 44), and provide greater 
acreage limits, since the proposed modification of NWP 44 will have 
little utility for the aggregate mining industry.
    We do not believe it would be appropriate to issue another NWP for 
aggregate mining activities, with greater acreage limit. The acreage 
limit for NWP 44 is intended to ensure that this NWP authorizes only 
those activities with minimal individual and cumulative adverse effects 
on the aquatic environment. This NWP authorizes aggregate mining 
activities.
    Two commenters said that all references to excavation in the NWPs 
should cite 33 CFR 323.3(d) to clarify that not all excavation 
activities require section 404 permits. One commenter suggested adding 
a new general condition which would require submittal of a delineation 
of non-jurisdictional wetlands with the pre-construction notification 
for those NWPs authorizing development activities, so that states could 
be notified of these activities. One commenter said that NWPs should 
not authorize activities in springs, seeps, headwater streams, and 
fens.
    Many excavation activities result in discharges of dredged material 
that require section 404 permits. When reviewing pre-construction 
notifications, district engineers will determine whether an excavation 
activity results in a discharge of dredged material and requires a 
section 404 permit, or whether a permit is not needed. It is not 
appropriate for the Corps to require prospective permittees to submit 
delineations of areas that are not waters of the United States with 
their pre-construction notifications. States that regulate these non-
jurisdictional aquatic habitats should

[[Page 11101]]

address those concerns through their permit processes. The NWPs can be 
regionally conditioned to restrict or prohibit NWP activities in 
springs, seeps, headwater streams, and fens.
    One commenter requested that the Corps reissue NWP 26, which 
authorized discharges into headwaters and isolated waters, in 
accordance with the limits described in the December 13, 1996 Federal 
Register notice.
    There are no plans to reissue NWP 26. This NWP expired on June 7, 
2000. We have issued NWPs that have replaced NWP 26.

Water Quality Certification/Coastal Zone Management Act Consistency 
Determination Issues

    One commenter said that the Corps should provide an opportunity for 
state and Tribal water quality certification agencies to participate 
early in the NWP reissuance process, to reduce potential conflicts 
during the water quality certification process. Another commenter 
requested clarification regarding enforcement of the NWPs, in cases 
where a provisional NWP verification is issued, but the permittee 
proceeds with work without receiving the individual water quality 
certification. This commenter asked whether the Corps or the state 
would initiate an enforcement action. One commenter objected to use of 
provisional NWP verifications in cases where water quality 
certification has not yet been issued for a particular NWP activity.
    We cannot begin coordination for water quality certification at an 
earlier time in the NWP reissuance process. States and Tribes need to 
see the proposed permit and general condition language, which is not 
available until the publication of the proposal in the Federal 
Register, in order to proceed with the certification process. We 
believe there is generally adequate time to complete the water quality 
certification process, however, where there is not, the Corps will 
issue only provisional verifications until the State or Tribe has 
completed its certification process; in this case, permittees are 
required to obtain individual certification directly from the State or 
Tribe before commencing work.
    If a provisional NWP verification is issued, the activity is not 
authorized by NWP until the required water quality certification is 
obtained or waived. If the project proponent begins the work before 
water quality certification is obtained or waived, the district 
engineer has full authority to initiate an enforcement action for the 
discharge of dredged or fill material into waters of the United States 
without a valid permit, in violation of the Clean Water Act. The 
district engineer will use his or her discretion, when determining 
whether to pursue an enforcement action. The use of provisional NWP 
verifications is necessary to provide timely responses to prospective 
permittees in cases where the State or Tribe has not yet completed its 
certification process. In addition, some States prefer not to issue 
general certifications for some or all NWPs. These States require a 
review of individual PCNs before issuing water quality certification 
for a particular activity.

Discussion of Comments and Final Permit Decisions

Nationwide Permits
    NWP 1. Aids to Navigation. There were no changes proposed for this 
NWP, and no comments were received. This NWP is reissued without 
change.
    NWP 2. Structures in Artificial Canals. There were no changes 
proposed for this NWP, and no comments were received. This NWP is 
reissued without change.
    NWP 3. Maintenance. We proposed to modify this NWP by removing the 
provisions for the restoration of uplands damaged by discrete events. 
We also proposed to add maintenance dredging or excavation of intakes, 
outfalls, and canals, which was authorized by NWP 7.
    Several commenters expressed support for the proposed changes to 
this NWP. One commenter objected to the removal of the explicit 
references to the ``water quality'' and ``management of water flows'' 
general conditions, stating that the removal of those references would 
change the intent of the NWP. One commenter recommended removing the 
language regarding the disposal of excavated material in upland areas, 
since it implies that excavation activities are regulated by the Corps 
under Section 404 of the Clean Water Act. Several commenters 
recommended adding language to clarify that excavation activities, or 
incidental fallback, do not require a section 404 permit. One commenter 
said that the definition of ``currently serviceable'' should remain in 
the text of this NWP, instead of moving it to the ``Definitions'' 
section.
    Even though explicit references to general conditions were removed 
from its text, all general conditions, including those general 
conditions cited above, are still applicable to this NWP. The terms of 
this NWP require permittees to deposit and retain dredged or excavated 
materials in an upland area, unless the district engineer authorizes 
the use of another area. This term does not suggest that excavation 
activities not involving discharges of fill or dredge material into 
Section 404 waters are regulated by the Corps. Instead, it specifies 
the type of site that may receive dredged or excavated material under 
this NWP for activities that do require Section 404 authorization. 
Excavation activities in waters of the United States require section 
404 permits if they result in a discharge of dredged or fill material 
into those waters (see 33 CFR 323.2(d)). Activities that result in only 
incidental fallback do not require permits. Since the definition of 
``currently serviceable'' is used in NWPs 41 and 47, it is more 
appropriate to have the definition in the ``Definitions'' section, for 
easier reference.
    A couple of commenters objected to moving the provision authorizing 
the repair, rehabilitation, or replacement of structures or fills 
destroyed or damaged by discrete events to proposed NWP A, which 
requires pre-construction notification for all activities. These 
commenters said that the proposed change would hinder the ability of 
utility companies and transportation departments to quickly repair 
utility lines, roads, and other important infrastructure damaged or 
destroyed by severe storms. One commenter suggested adding another note 
to this NWP, to refer potential applicants to NWP 45 in cases where 
structures that have been made non-functional by some discrete event 
may qualify for repair, rehabilitation, or replacement.
    We have restored the language authorizing the repair, 
rehabilitation, or replacement of structures or fills destroyed or 
damaged by storms or other discrete events in paragraph (a) of NWP 3, 
and removed it from proposed NWP A (now designated as NWP 45). Because 
of this change, it is no longer appropriate to add a note to this NWP 
to refer to NWP 45.
    One commenter suggested that this NWP should not be used to 
authorize additional or new work, fill, riprap or structures that was 
not part of the original authorization. One commenter stated that the 
continued maintenance, repair, restoration, and replacement of a 
structure may represent ongoing impacts that are more than minimal, and 
may preclude restoration of environmental features at the project site. 
This commenter said that those types of activities should require on-
going mitigation. Another commenter said that this NWP should not be 
reissued, since its use results in more than minimal adverse impacts to 
the

[[Page 11102]]

aquatic environment. Another commenter suggested that this NWP should 
not authorize replacement of structures and fill, and that it should be 
restricted to repair or rehabilitation activities involving 50 percent 
or less of a structure. One commenter said that this NWP should 
authorize modifications to older structures that would help improve the 
aquatic environment. This commenter also recommended replacing the use 
of riprap with less environmentally damaging alternatives, such as 
bioengineered structures.
    This NWP does not authorize any significant increase in the 
original structure or fill. Only minor deviations necessary to conduct 
repairs and maintenance, or the placement of the minimum necessary 
riprap to protect the structure, are eligible for authorization under 
this NWP. Because of the nature of activities authorized by this NWP, 
as a general rule compensatory mitigation should not be required for 
these maintenance activities. If a Department of the Army permit was 
required to construct the original structure or fill, appropriate 
compensatory mitigation would have been required by the district 
engineer when the permit was issued, to offset the loss of aquatic 
resource functions and services resulting from the authorized work. 
Additional compensatory mitigation is usually unnecessary to maintain 
those structures or fills. The terms and conditions for NWP 3, plus any 
regional conditions imposed by division engineers, will ensure that 
this NWP authorizes only those activities with minimal individual and 
cumulative adverse effects on the aquatic environment. We believe that 
this NWP should continue to authorize the replacement of structures or 
fills, or rehabilitation activities, since those activities usually 
result in minimal adverse effects on the aquatic environment. As for 
modifying this NWP to authorize changes to structures that would 
improve the aquatic environment, we believe it would be more 
appropriate for district engineers to authorize such changes through 
other permits. Changes to structures would require more thorough 
evaluation to ensure that net improvements to the aquatic environment 
will occur. The use of bioengineering methods to protect existing 
structures may not be very effective, because of the environmental 
conditions, such as water flows, near these structures. Riprap is 
usually the most effective means of protecting these structures, and 
the terms of this NWP require minimization of the footprint of the 
riprap. District engineers can consider bioengineering on a case-by-
case basis, and authorize such activities as appropriate.
    One commenter said that this NWP should not authorize the 
maintenance of bank stabilization structures that are more than 300 
feet long. One commenter suggested dividing paragraph (b) into two 
subparagraphs. One subparagraph would authorize debris and sediment 
removal and the other subparagraph would authorize riprap. This 
commenter also indicated that this NWP should be modified to limit the 
removal of sediment to the minimum necessary to ``restore the bed of 
the waterway to its natural grade.''
    This NWP authorizes only activities that repair or return an 
activity to previously existing conditions. We do not believe it is 
necessary to further restrict this NWP to limit maintenance of bank 
stabilization structures. Dividing paragraph (b) into two subparagraphs 
is not needed, since the riprap is typically used to protect the 
structure once the accumulated sediment has been removed. The purpose 
of this NWP is to authorize restoring structures or fills to their 
original condition. It may not be possible to determine the ``natural 
grade'' of the waterway, and this may not have been the condition at 
the time the structure or fill was originally authorized. Therefore, we 
believe the current language is more appropriate.
    Several commenters recommended modifying this NWP to authorize both 
permanent and temporary impacts of maintenance activities, since the 
requirement to submit a pre-construction notification for temporary 
impacts would significantly increase regulatory and administrative 
burdens on the applicants and the Corps, without any environmental 
benefits or added value to the process.
    We agree, and have added a new paragraph (c) to this NWP to address 
temporary structures, fills, and work necessary to conduct the 
maintenance activities authorized by this NWP.
    Several commenters objected to the requirement to provide 
information about original design capacities and configurations of the 
structures and canals as part of the pre-construction notification for 
the proposed activity. These commenters stated that this information 
may not exist or be readily available, particularly for old facilities 
and structures. These commenters recommended that the information be 
required only where it is reasonably available. Alternatively, the 
commenters proposed retaining the language regarding the project not 
causing more than minimal changes to the flow characteristics of the 
stream, or increased flooding, instead of specifically requiring 
original design information.
    The provision to require information regarding the original design 
capacities and configurations of structures and other features is only 
applicable when maintenance dredging is proposed. We believe that this 
information can be developed fairly easily, since the capacities and 
configurations of the outfalls, intakes, impoundments, and canals can 
be developed or inferred by examining the existing facilities, in cases 
where historical documentation is not available.
    Several commenters expressed opposition to the terms of the NWP 
that limit the removal of sediment to the minimum necessary to restore 
the waterway to the approximate dimensions that existed when the 
structure was built. Another commenter recommended changing the 
language to require restoration of the project to its original design 
conveyance capacity.
    The current language is adequate to ensure that this NWP authorizes 
necessary sediment removal activities that result in minimal adverse 
effects on the aquatic environment. We believe that the limits for the 
removal of sediments should be established with regard to the 
conditions of the waterway itself at the time of project construction 
rather than to the specifications of the structures.
    One commenter requested clarification as to whether the 200 foot 
limit on the removal of accumulated sediment is subject to the \1/2\ 
acre limit found in other NWPs.
    This NWP does not have a \1/2\ acre limit. If this NWP is used with 
another NWP to authorize a single and complete activity, then the 
activity is subject to the requirements of general condition 24, Use of 
Multiple Nationwide Permits. If this NWP is used with an NWP with a \1/
2\ acre limit, such as NWP 39, then the \1/2\ acre limit would apply to 
the single and complete project.
    One commenter requested the addition of ``flood conveyance 
channels'' to paragraph (b) of this NWP, instead of requiring the use 
of NWP 31. Another commenter stated that additional routine maintenance 
activities, which are authorized by NWPs 31 and 43, should be 
consolidated under NWP 3. One commenter suggested adding language to 
clarify that this NWP authorizes emergency repairs of submarine fiber 
optic cables.

[[Page 11103]]

    NWP 31 is being reissued to authorize maintenance activities for 
existing flood control facilities, including flood conveyance channels. 
Therefore, we do not believe it is necessary to modify NWP 3 to 
authorize those activities. We are also reissuing NWP 43 to authorize 
maintenance activities for storm water management facilities. Emergency 
repairs of submarine fiber optic cables may be authorized by this NWP, 
provided the activity meets its terms and conditions.
    One commenter indicated that small sediment removal projects should 
not require pre-construction notification. Another commenter stated 
that pre-construction notification should not be required for the 
placement of riprap to protect structures. A few other commenters said 
that pre-construction notification should not be required for 
activities authorized by paragraph (b) of this NWP. In contrast, one 
commenter suggested that pre construction notification should be 
required for all activities covered under NWP 3.
    We believe that the pre-construction notification requirements for 
this NWP are appropriate. Pre-construction notification is required for 
those activities that may have the potential to cause more than minimal 
adverse effects on the aquatic environment.
    One commenter recommended that sediments should be sampled to 
project depth prior to dredging, and that sandy sediment suitable for 
nearshore disposal should be returned to the littoral system down drift 
of the project site.
    Regulatory Guidance Letter 06-02 establishes that testing of dredge 
material is not required when there is reason to believe that no 
contaminants are present in the material. Therefore, a standard 
requirement to sample and test sediments to be dredged under NWP 3 
would not be appropriate. The nearshore disposal of sandy sediments 
should be addressed through separate authorizations, such as individual 
permits, since those activities may have more than minimal adverse 
environmental effects.
    One commenter indicated that significant wetland habitat 
development has been observed on sediments left in place for many years 
within canals associated with outfall and intake structures. That 
commenter stated that exempting maintenance activities in such canals 
from the 200 linear foot restriction may have a significant impact on 
the wetland habitats in these channels. Another commenter suggested 
that the placement of riprap or any other bank stabilization material 
in, or the removal of accumulated sediment from, any special aquatic 
site should be prohibited.
    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 these areas. District engineers will review 
pre-construction notifications to determine if the placement of riprap 
or the removal of accumulated sediments in special aquatic sites would 
cause more than minimal impact, and use discretionary authority to 
address situations where they would.
    One commenter stated that affected tribes should be informed of all 
pre-construction notifications for this NWP that involve in-water work 
and be provided 30 days to provide comments. This commenter also 
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.
    Coordination of proposed NWP 3 activities with Indian tribes is 
more appropriately addressed through government-to-government 
consultations with Corps districts. General condition 16, 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 this general 
condition, along with coordination with interested Indian Tribes, will 
help protect tribal rights.
    One commenter suggested that the placement of riprap should be the 
minimum necessary to protect the structure, in order to reduce adverse 
effects to habitat-forming processes within waterbodies, such as salmon 
habitat. Another commenter said that this NWP should not authorize 
maintenance work on culverts that fail to meet appropriate standards 
for the upstream and downstream passage of fish, or culverts that do 
not allow for the downstream passage of substrate and wood.
    The terms and conditions of this NWP limit the placement of riprap 
to the minimum necessary to provide adequate erosion protection. Other 
NWP general conditions, such as general condition 17 for endangered 
species, may provide additional protection for species of concern, as 
well as their habitat. General condition 2 prohibits activities which 
could disrupt the necessary life cycle movements of aquatic species.
    One commenter stated that pre-construction notifications should be 
required for all NWP 3 activities to ensure compliance with its terms 
and conditions. Another commenter stated that the Corps should 
carefully review all maintenance applications to ensure that the area 
impacted is not larger than needed to complete the maintenance 
activities, and that no additional impacts are authorized or conducted.
    We do not agree that pre-construction notification should be 
required for all activities. The terms and conditions of this NWP are 
adequate to ensure that it authorizes only those activities with 
minimal adverse effects on the aquatic environment. Where there are 
concerns for the aquatic environment, division engineers can regionally 
condition this NWP to require pre-construction notification or other 
measures.
    One commenter said that streams near roads may migrate from their 
original location and compromise the road. This commenter said that for 
those situations, this NWP should authorize relocation of the stream 
back to its original location. The commenter also indicated that small 
channel realignments should be authorized to properly convey the water 
into culverts.
    This NWP does not authorize new stream channelization or stream 
relocation projects. Those activities may be authorized by other 
Department of the Army permits.
    This NWP is reissued with the modifications discussed above.
    NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. We proposed to remove the provision for 
shellfish seeding, since we proposed to modify NWP 27 to authorize this 
activity. No comments were received. This NWP is reissued as proposed.
    NWP 5. Scientific Measurement Devices. We proposed to remove the 
pre-construction notification requirement for discharges of 10 to 25 
cubic yards for the construction of small weirs and flumes, but retain 
the 25 cubic yard limit for such construction.
    Several commenters supported this NWP and the proposed removal of 
the pre-construction notification requirement on the basis that 
activities authorized under this NWP result in minimal impacts. Another 
commenter agreed with the removal of the pre-construction notification 
requirement for discharges of 10 to 25 cubic yards for construction of 
weirs and flumes because it will facilitate the implementation of water 
quality improvement projects sponsored by Federal, State, and local 
agencies, as well as the scientific community. Two

[[Page 11104]]

commenters objected to the removal of the pre-construction notification 
threshold. One commenter recommended conditioning this NWP to ensure 
that authorized activities do not interfere with the movements of 
organisms within watercourses or prevent ingress or egress of aquatic 
organisms.
    Based on our past experience with this NWP, we believe the removal 
of the pre-construction notification requirement for discharges of 10 
to 25 cubic yards for the construction of small weirs and flumes is 
appropriate. Project proponents are required to comply with all 
applicable general conditions, including general condition 2, Aquatic 
Life Movements, which prohibits activities from substantially 
disrupting life cycle movements of aquatic organisms. Further, we 
believe the district engineer's authority to issue case-specific 
special conditions and to impose regional conditions to require pre-
construction notifications for certain activities, such as activities 
involving specified quantities of fills for the construction of small 
weirs and flumes, is adequate to address local concerns regarding 
potential adverse effects to the movement of aquatic organisms.
    One commenter said that the NWP should have a condition requiring 
all temporary devices to be removed when the devices will no longer be 
used. This commenter also asked whether this NWP authorizes the 
installation of single measurement devices or multiple measurement 
devices.
    The removal of temporary fills is required by general condition 13. 
The NWP authorizes single and complete scientific measurement device 
projects. Scientific measurement devices with independent utility can 
be authorized by separate NWP authorizations.
    This NWP is reissued as proposed.
    NWP 6. Survey Activities. We proposed to modify this NWP to add 
exploratory trenching to the list of authorized activities and to 
authorize the construction of temporary pads used for survey 
activities, provided the discharge does not exceed 25 cubic yards.
    Two commenters supported the proposed modifications and one 
commenter said that the NWP would result in more than minimal impacts 
to the aquatic environment. One commenter stated that there should be a 
\1/4\ acre limit for exploratory trenching. This commenter also 
suggested imposing a 25 cubic yard limit on all activities authorized 
by this NWP.
    It has been our experience that exploratory trenching results in 
minimal adverse effects on the aquatic environment, and this NWP has 
been conditioned to require restoration of the trenched area upon 
completion of work. Since most impacts associated with exploratory 
trenches are temporary, an acreage limit is not necessary. Division 
engineers may impose regional conditions to require pre-construction 
notifications or specific limits for certain activities. District 
engineers may also exercise discretionary authority and require an 
individual permit if a proposed activity would result in more than 
minimal adverse effects on the aquatic environment. It is unnecessary 
to impose a 25 cubic yard limit on all discharges authorized by this 
NWP, since most of these discharges are temporary. Temporary fills must 
be removed upon completion of the work, in accordance with the 
requirements of general condition 13. Any permanent fills are likely to 
be small in size, because of the types of activities authorized by this 
NWP.
    One commenter suggested adding language regarding the backfilling 
of the exploratory trench. Some commenters stated that the definition 
of ``exploratory trenching'' should include more prescriptive details 
such as benchmarks, width, and depth.
    We are conditioning this NWP to require permittees to backfill the 
top 6 to 12 inches of exploratory trenches constructed in wetlands with 
topsoil from the trench. This change will bring consistency with the 
terms of other NWPs that authorize trenching activities. We do not 
believe that it is necessary to include prescriptive limits on the 
trench dimensions. However, division engineers may choose to establish 
such limits through regional conditions.
    One commenter suggested that the 25 cubic yard limit for discharges 
associated with temporary pads should be removed. Another said that the 
25 cubic yard limit should apply to the cumulative amount of material 
for multiple drill sites. Two commenters said that limits should be 
placed on the amount of such discharges because a state may not issue 
water quality certification for this NWP.
    The 25 cubic yard limit is necessary to help ensure that the NWP 
authorizes only activities with minimal adverse effects on the aquatic 
environment. It also provides a suitable limit on the quantity of 
discharge necessary for construction of these temporary pads. The cubic 
yard limit for temporary pads applies to a single and complete project, 
as defined at 33 CFR 330.2(i). If a state does not issue water quality 
certification for this NWP, an individual water quality certification 
must be obtained or waived for each activity before it is authorized in 
that state.
    One commenter stated the NWP should also authorize temporary access 
roads. Such work may qualify for the 404(f) exemption for temporary 
mining roads or could be authorized by NWP 33.
    The NWP is reissued with the modification discussed above.
    NWP 7. Outfall Structures and Associated Intake Structures. We 
proposed to move maintenance dredging and excavation activities to NWP 
3. We also proposed to change the title of this NWP to more clearly 
describe what it authorizes.
    Several commenters supported moving maintenance dredging and 
excavation activities to NWP 3, while one commenter objected to the 
proposed change. One commenter said this NWP should require pre-
construction notification only for section 10 activities, since Clean 
Water Act authorization for these structures is already provided 
through the permit process under Section 402 of the Clean Water Act. 
One commenter stated that construction and maintenance of outfall 
structures should not include bank stabilization structures.
    Outfall structures and associated intake structures require section 
404 authorization if they involve discharges of dredged or fill 
material into waters of the United States. Sections 404 and 402 of the 
Clean Water Act address different types of discharges. In addition, the 
permitting criteria under section 404 differ from those of section 402. 
In addition, some activities authorized by this NWP may be exempt from 
section 402 permit requirements. The pre-construction notification 
requirement is necessary to ensure that activities authorized by this 
NWP will have no more than minimal adverse impacts to the aquatic 
environment. Bank stabilization activities are not authorized by this 
NWP but may be authorized by NWP 13 or other types of permits.
    One commenter suggested adding a provision to require intake 
structures constructed for withdrawing cooling water to adhere to 
requirements contained in Section 316(b) of the Clean Water Act. 
Another commenter suggested that this NWP should include a reference to 
the U.S. Environmental Protection Agency's section 316(b) 
implementation initiative and require incorporation of Best Technology 
Available methods developed from this initiative. This commenter also 
said that intake structures should utilize passive screens with 
openings not to exceed one centimeter (or one millimeter in waters

[[Page 11105]]

having anadromous fish), with a maximum intake velocity of 0.5 feet per 
second.
    Section 316(b) of the Clean Water Act is implemented through (and 
only applies to) permits issued pursuant to Section 402. Thus, any 
structure that is in compliance with regulations issued under the NPDES 
program (Section 402) must also be in compliance with regulations 
issued under Section 316(b). Specific suggestions regarding technology 
choices for intake structures are more appropriately addressed through 
other permit authorities, such as the 402 program. Activities 
authorized by this NWP may require other Federal, State, or local 
permits or licenses.
    One commenter suggested adding modifications of existing intakes as 
an authorized activity, for cases where intake structure modifications 
are required by rules recently promulgated under Section 316(b) of the 
Clean Water Act. Another commenter recommended adding a note to refer 
applicants to NWP 3 for future maintenance activities.
    In the first sentence of this NWP, we have added the phrase ``or 
modification'' after the word ``construction. It is important to note 
that this NWP only authorizes the construction or modification of 
intake structures that are associated with outfall structures. This 
would include cooling water intake structures where the heated cooling 
water is subsequently discharged back into the waterbody from which is 
was withdrawn. Adding a note referencing NWP 3 for future maintenance 
activities is inappropriate, since there may be outfall structure 
maintenance activities that do not qualify for NWP 3 authorization.
    One commenter requested clarification that this NWP authorizes only 
those activities that require permits under Section 404 of the Clean 
Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. This 
commenter said that the current text of this NWP indicates that all 
outfall and associated intake structures that require section 402 
permits would also require an NWP authorization.
    This NWP authorizes outfall structures and associated intake 
structures that require authorization under Section 404 of the Clean 
Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. If 
the construction or modification of an outfall structure or associated 
intake structure that requires a section 402 permit does not involve 
discharges of dredged or fill material into waters of the United States 
or structures or work in navigable waters of the United States, then a 
Corps permit is not required.
    One commenter recommended conditioning this NWP to require intake 
structures to be marked in a manner that will reduce hazards to 
navigation during and after construction. Another commenter said that 
this NWP should not authorize dredging operations during fish spawning 
seasons. One commenter said that this NWP should prohibit the 
stockpiling of excavated materials where sediment may erode to surface 
waters. A commenter asserted this NWP should be conditioned to prohibit 
exposure of surface waters to wet concrete, which may be toxic to 
aquatic organisms.
    General condition 1 states that any safety lights and signals 
prescribed by the U.S. Coast Guard, through regulations or otherwise, 
must be installed and maintained. This condition adequately addresses 
potential hazards to navigation. Maintenance dredging associated with 
outfall structures and their intake structures may be authorized by NWP 
3 or another type of permit. General condition 3 states that activities 
in spawning areas that occur during the spawning seasons must be 
avoided to the maximum extent practicable. General condition 12 
addresses requirements for soil erosion and sediment controls. Although 
concrete may be toxic under certain circumstances, it is generally not 
considered to have toxic pollutants present in toxic amounts. 
Therefore, its use is not generally prohibited by general condition 6, 
Suitable Materials.
    One commenter said that agency coordination should be required for 
the construction of intake structures, because those structures may 
impinge and entrain larval fish.
    We do not believe it is necessary to require agency coordination 
for the construction of intake structures. For cooling water intake 
structures, this issue is already addressed by the Section 402 program. 
For other types of intakes, it would be more appropriate to address 
concerns regarding the impingement and entrainment of larval fish 
through regional conditions or special conditions. Division and 
district engineers, in consultation with resource agencies, can develop 
species-specific regional or special conditions to protect larval fish.
    This NWP is reissued with the modification discussed above.
    NWP 8. Oil and Gas Structures on the Outer Continental Shelf. We 
proposed to clarify that pre-construction notification is required for 
all activities authorized by this NWP. No comments were received. This 
NWP is reissued as proposed.
    NWP 9. Structures in Fleeting and Anchorage Areas. There were no 
changes proposed for this NWP. One commenter said that moorage 
structures may preclude the continued exercise of Tribal fishing 
rights. This commenter also asked that the Corps consult with Indian 
Tribes that utilize these areas for fishing, and requested that pre-
construction notification be required for all activities authorized by 
this NWP.
    General condition 16 states that NWP activities cannot impair 
reserved tribal rights. Division and district engineers can consult 
with Tribes to develop regional conditions that will further ensure 
that tribal rights are not impaired by this NWP. Division engineers can 
regionally condition this NWP to require coordination with Tribes when 
proposed activities may affect Tribal lands or trust resources.
    The NWP is reissued without change.
    NWP 10. Mooring Buoys. There were no changes proposed for this NWP. 
One commenter stated that individual mooring buoys can interfere with 
the exercise of Tribal fishing rights and should not be authorized by 
NWP. This commenter also said that pre-construction notification should 
be required for all activities authorized by this NWP, and the Corps 
should consult with Indian Tribes with usual and accustomed fishing 
grounds. Another commenter suggested limiting mooring buoys to areas 
outside of Federal navigation channel or dredged material placement 
areas.
    General condition 16 states that NWP activities cannot impair 
reserved tribal rights. Division and district engineers can consult 
with Tribes to develop regional conditions that will ensure that tribal 
fishing rights are not impaired by activities authorized by this NWP. 
District and division engineers will consider the need to add regional 
conditions or case-specific conditions where necessary to protect 
tribal rights. Prohibiting the placement of mooring buoys in Federal 
navigation channels or dredged material placement areas is not 
desirable. There are occasions where it may be appropriate to place 
mooring buoys in these areas on a permanent or temporary basis, where 
the adverse effects on navigation and other public interest review 
factors are minimal. Mooring buoys authorized by this NWP must comply 
with general condition 1, Navigation. Division engineers may also add 
regional conditions to this NWP to prohibit the placement of mooring 
buoys in certain Federal navigation channels or other areas of concern.
    The NWP is reissued without change.

[[Page 11106]]

    NWP 11. Temporary Recreational Structures. There were no changes 
proposed for this NWP. One 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 that regional conditions should be added 
to require that such structures shall be removed from salmon spawning 
areas prior to commencement of the spawning season. Another commenter 
suggested that temporary recreation structures may come into conflict 
with Tribal fisheries and that pre-construction notification should be 
required. In addition, consultation with Indian Tribes with usual and 
accustomed fishing grounds in the area should also be conducted.
    This NWP cannot authorize any activity that may impair reserved 
tribal rights, including, but not limited to, reserved water rights and 
treaty fishing and hunting rights (see general condition 16). District 
and division engineers will consider the need to add regional 
conditions or case-specific conditions where necessary to protect such 
tribal rights.
    One commenter recommended conditioning the NWP to require temporary 
recreation structures to be removed within seven days after the use has 
been discontinued, instead of the 30 days specified in the NWP. One 
commenter asserted that the required approval from the reservoir 
manager should be in writing.
    Shorter time periods for removal can be imposed through regional 
conditioning, or through special conditions provided in NWP 
verifications. The process for approving buoys or markers at Corps of 
Engineers reservoirs is at the discretion of the reservoir manager.
    The NWP is reissued without change.
    NWP 12. Utility Line Activities. We proposed to modify this NWP by 
removing the provisions authorizing the construction of permanent and 
temporary access roads and simplifying the pre-construction 
notification thresholds. Several commenters supported all proposed 
changes to this NWP.
    One commenter recommended modifying this NWP to explicitly include 
utility line relocation, in addition to utility line construction, 
maintenance, and repair. Two commenters suggested reducing the 
authorized duration of temporary sidecasting. One of these commenters 
said that four weeks is sufficient time for temporary sidecasting, and 
the other commenter recommended a time limit of 30 days. One commenter 
said that this NWP should require all trenched material to be returned 
to the trench as backfill, not just the upper 6 to 12 inches, to 
sustain groundwater hydrology and prevent drainage of wetlands and 
other waters of the United States. One commenter requested that total 
impacts at the site be limited to \3/10\ acre.
    This NWP authorizes the relocation of utility lines, which is 
covered by the construction, maintenance, and repair activities 
authorized by this NWP. We believe that three months is an appropriate 
time frame for temporary sidecasting of excavated material into waters 
of the United States. Division engineers can regionally condition this 
NWP to reduce the authorized period of temporary sidecasting, to 
further ensure minimal adverse effects. In response to a pre-
construction notification, district engineers can add special 
conditions to the NWP authorization to reduce the length of time 
temporary sidecasting is authorized. We do not agree that it is 
necessary to require that all trenched material be returned to the 
trench to maintain pre-construction hydrology. The NWP explicitly 
prohibits backfilling the trench in a manner that would result in a 
french drain effect, and drain nearby waters. We believe the 1/2 acre 
limit for this NWP is sufficient to ensure that it authorizes only 
those activities that result in minimal individual and cumulative 
adverse effects on the aquatic environment. This limit applies to the 
total discharges associated with the single and complete project.
    Several commenters supported the proposed pre-construction 
notification thresholds for this NWP, stating that they are simpler 
than the current thresholds and would capture many of those utility 
line activities that required pre-construction notification under the 
2002 NWP. A couple of commenters recommended retaining the pre-
construction notification thresholds of the NWP 12 issued in 2002. A 
number of commenters said that the pre-construction notification for 
temporary losses of greater than \1/10\ acre of water of the United 
States should be eliminated. Some of these commenters stated that this 
pre-construction notification threshold is confusing, because it is not 
consistent with the definition of ``loss of waters of the United 
States.'' Other commenters recommended changing the phrasing of this 
pre-construction notification threshold from ``temporary loss'' to 
``temporary impact'' to provide consistent terminology for the NWPs. 
Several commenters said that the \1/10\ acre pre-construction 
notification threshold for temporary losses should be eliminated, 
because it is not necessary to ensure minimal adverse effects and it is 
not consistent with the pre-construction notification thresholds of 
other NWPs. One commenter indicated that the pre-construction 
notification threshold for temporary losses would result in a dramatic 
increase in the numbers of pre-construction notifications submitted to 
the Corps. Another commenter stated that this pre-construction 
notification threshold would remove incentives for project proponents 
to minimize temporary impacts. Several commenters said that requiring 
pre-construction notifications for temporary losses greater than \1/10\ 
acre would increase the number of wetland delineations required to be 
submitted with those notifications.
    One commenter asked if an activity resulting in impacts of \1/10\ 
acre or less to special aquatic sites, including wetlands, would 
require pre-construction notification. Another commenter said that 
there may be utility line activities resulting in the loss of less than 
\1/10\ acre that may result in more than minimal adverse effects on the 
aquatic environment. One commenter objected to the removal of the pre-
construction notification requirement for activities that include 
mechanized landclearing of forested wetlands, stating that this may 
result in significant habitat loss of forested wetlands and a 
significant permanent loss of forested wetland functions. One commenter 
recommended requiring pre-construction notifications for activities 
that may impact fish passage.
    We are restoring the pre-construction notification thresholds that 
were in the NWP 12 issued in 2002, so that district engineers will be 
able to conduct case-by-case review for certain utility line activities 
that have the potential to result in more than minimal adverse effects 
on the aquatic environment. Pre-construction notification will be 
required if any of the following criteria are met: (1) The activity 
involves mechanized land clearing in a forested wetland for the utility 
line right-of-way; (2) a section 10 permit is required; (3) the utility 
line in waters of the United States, excluding overhead lines, exceeds 
500 feet; (4) the utility line is placed within a jurisdictional area 
(i.e., water of the United States), and it runs parallel to a stream 
bed that is within that jurisdictional area; (5) discharges that result 
in the loss of greater than \1/10\-acre of waters of the United States; 
(6)

[[Page 11107]]

permanent access roads are constructed above grade in waters of the 
United States for a distance of more than 500 feet; or (7) permanent 
access roads are constructed in waters of the United States with 
impervious materials. Discharges resulting in temporary losses of 
waters only will no longer trigger a pre-construction notification 
requirement, unless they trigger one of the criteria above.
    Division engineers can regionally condition this NWP to require 
pre-construction notification for other utility line activities, if 
there are concerns for the aquatic environment or public interest that 
warrant lower pre-construction notification thresholds, such as 
endangered or threatened species, or impacts to forested wetlands. 
General condition 2, Aquatic Life Movements, requires permittees to not 
disrupt necessary life cycle movements of aquatic organisms, such as 
fish.
    Several commenters requested that the definition of single and 
complete project, as applied to utility line projects, be modified to 
state that the \1/10\ acre pre-construction notification threshold 
applies to the entire utility line and not to each separate water or 
wetland crossing.
    The requirement to submit a pre-construction notification for those 
utility line activities listed in the ``Notification'' paragraph of 
this NWP applies to a single and complete project, as defined at 33 CFR 
330.2(i). In the case of a utility line, a single and complete project 
consists of a single crossing of a water of the United States, or more 
than one crossing at the same location (see the definition of ``single 
and complete project'').
    Several commenters expressed opposition to the proposed removal of 
access roads from this NWP, especially the construction of temporary 
access roads, which would require authorization under NWP 33 and 
require pre-construction notification for all activities. One commenter 
supported the use of NWPs 14 and 33 for utility line access roads, 
because it would provide greater flexibility in the locations where 
these roads could be built. Most of these commenters expressed concern 
that requiring pre-construction notification for all temporary access 
road construction activities will significantly increase the regulatory 
burdens on permittees and most likely cause substantial delays in 
utility line projects. One commenter said that access roads should be 
retained in this NWP, with a \1/2\ acre limit for the utility lines and 
a \1/2\ acre limit for the access road. Several commenters stated that 
requiring authorization of permanent access roads through NWP 14 could 
result in impacts greater than \1/2\ acre at the site of a single and 
complete project. One commenter said that utility line substations 
should be authorized by another NWP, because these facilities can be 
constructed at a more distant location from the utility line.
    After considering these comments, as well as the probable negative 
effects that this proposed change would have on essential services such 
as the distribution of energy to the public, we have decided to retain 
authorization of permanent and temporary access roads in NWP 12. We 
have added a paragraph to authorize access roads, using language from 
the NWP 12 issued in 2002. We are also putting Note 2 back into this 
NWP. This note states that access roads used for both construction and 
maintenance are authorized by this NWP. This note has been adapted from 
the NWP 12 issued in 2002, but revised to clarify that temporary access 
roads may be authorized by NWP 12, provided the area is restored to 
pre-construction elevations and revegetated as appropriate. To address 
concerns about temporary impacts to waters of the United States 
associated with utility line activities, we are adding explicit 
requirements to remove all temporary fills in their entirety, return 
affected areas to pre-construction elevations, and revegetate affected 
areas as appropriate.
    The \1/2\ acre limit for this NWP applies to each single and 
complete utility line activity. There are not separate acreage limits 
for utility lines and access roads. Retaining authorization of access 
roads in this NWP, as well as authorization for utility line 
substations, will help provide effective authorization for utility line 
activities.
    One commenter recommended reformatting this NWP to be consistent 
with other NWPs. Another commenter suggested that the phrase ``provided 
the activity does not result in the loss of greater than \1/2\ acre of 
those waters'' be deleted, since the \1/2\ acre limit is indicated in 
the first paragraph of this NWP. One commenter said that mitigation 
should be required for all NWP activities. Another commenter stated 
that the NWP should clarify that mitigation banks may be used to 
provide compensatory mitigation for permanent adverse effects 
authorized by this NWP.
    The format of this NWP need not be consistent with the other NWPs, 
because of the authorized activities. We are retaining the reference to 
the \1/2\ acre limit in the paragraph that authorizes utility line 
substations, to make it clear that any losses associated with this 
activity are included in the \1/2\ acre limit. A similar reference to 
the \1/2\ acre limit is also provided in the paragraph authorizing 
access roads. Mitigation requirements for this NWP will be established 
in accordance with general condition 20, Mitigation. This general 
condition states that mitigation banks may be used to provide 
compensatory mitigation for activities authorized by NWPs.
    One commenter suggested adding language to this NWP that would 
require sand and gravel excavated from a lake bed during trench 
excavation to be temporarily sidecast in a manner such that it would 
not be buried by material with finer grain sizes. Another commenter 
stated that this NWP should not be used to authorize utility line 
activities in streams that support salmon.
    Concerns for potential impacts to lake substrate are more 
appropriately addressed through either the special conditions added to 
an NWP authorization by the district engineer, or by regional 
conditioning of the NWP by division engineers. Potential impacts to 
salmon are also more appropriately addressed through regional 
conditions or the review of pre-construction notifications, including 
the district engineer's use of discretionary authority and the addition 
of special conditions to the NWP authorization.
    One commenter said that this NWP should be conditioned to require 
placement of the utility line in the right-of-way of existing or 
proposed roads or at the narrowest section of wetlands or streams. This 
commenter also stated that the number of stream crossings should be 
limited to the minimum necessary.
    These concerns are addressed by general condition 20, Mitigation, 
which requires avoidance and minimization on the project site to the 
maximum extent practicable. It is not appropriate to condition this NWP 
to require utility lines to be placed in existing rights-of-way or at 
the narrowest sections of waters of the United States. Often it is not 
feasible to limit utility lines to these areas, and practicable 
alternatives are usually rather limited. Many utility lines need to be 
installed in areas without roads.
    One commenter said that this NWP should require communication or 
power poles to be upgraded to current standards to avoid detrimental 
impacts to migratory birds. This commenter also stated that this NWP 
should not authorize wind generating turbines.
    Design requirements for communication or power poles relative to 
migratory birds are more appropriately addressed through other

[[Page 11108]]

regulatory programs. Wind generating turbines are not considered to be 
utility lines. To the extent that the construction of wind generating 
turbines requires Department of the Army authorization, those 
activities may be authorized by individual permits, regional general 
permits, or other NWPs (e.g., NWP 25).
    NWP 12 is reissued with the modifications discussed above.
    NWP 13. Bank Stabilization. We proposed to modify this NWP to 
authorize bank stabilization activities in special aquatic sites, 
provided the prospective permittee submits a pre-construction 
notification.
    Several commenters expressed support for the proposed changes to 
this NWP. Several commenters stated that this NWP will result in more 
than minimal adverse effects to the aquatic environment, particularly 
for headwater streams, and that individual permits should be required 
for these activities. Other commenters stated that the linear limits of 
this NWP should be reduced and that the waivers to the linear foot and 
cubic yard limits should be removed to ensure that the NWP authorizes 
only those activities with minimal adverse effects on the aquatic 
environment. Several commenters stated that bank stabilization projects 
in excess of 500 feet or involving more than one cubic yard per running 
foot should be evaluated as individual permits, with opportunity for 
public review.
    The terms and conditions of this NWP, especially the pre-
construction notification requirements, will help ensure that this NWP 
authorizes only those activities that result in minimal individual and 
cumulative adverse effects on the aquatic environment. The 500 linear 
foot and the one cubic yard limits must be waived in writing by the 
district engineer, or the NWP cannot be used to authorize activities 
that exceed these limits. Bank stabilization activities are often 
necessary to help protect property, as well as water quality. In 
response to a pre-construction notification the district engineer can 
add special conditions to the NWP authorization to ensure minimal 
adverse effects, or exercise discretionary authority and require 
another type of permit, such as an individual permit, for the activity. 
Division engineers can regionally condition this NWP to protect high 
value waters and other important resources.
    One commenter recommended modifying the text of this NWP to clarify 
that authorized activities are not limited to rivers and streams, but 
that this NWP can also be used in coastal areas. Several commenters 
stated that this NWP should not authorize impacts to special aquatic 
sites. One commenter recommended requiring a written waiver from the 
district engineer to authorize discharges of dredged or fill material 
into special aquatic sites. A few commenters said that mitigation 
should always be required for activities authorized by this NWP.
    This NWP can be used to authorize bank stabilization activities in 
all waters of the United States, including rivers, streams, and coastal 
areas. We do not believe it is necessary to modify the text of this NWP 
to list the types of waterbodies in which it can be used. Because many 
streams include or are bordered by special aquatic sites, precluding 
use of this permit in these areas significantly limits its usefulness. 
It may be beneficial to watersheds to stabilize eroding banks, even 
though small amounts of fringe wetlands or mudflats may be impacted by 
a bank stabilization activity. Therefore, bank stabilization activities 
involving discharges of dredged or fill material into special aquatic 
sites may be authorized by this NWP but pre-construction notification 
is required for all such activities, which will provide an opportunity 
for the district engineer to review those activities to ensure that any 
adverse effects on the aquatic environment are minimal. For additional 
assurance, we have added a new paragraph (d) to require a written 
waiver from the district engineer if the activity involves discharges 
of dredged or fill material into special aquatic sites. If a written 
waiver is not issued by the district engineer, then this NWP does not 
authorize such discharges. In response to a pre-construction 
notification, the district engineer will exercise discretionary 
authority if the proposed bank stabilization activity is in a special 
aquatic site and will result in more than minimal adverse effects on 
the aquatic environment. Division engineers may also regionally 
condition this NWP to prohibit discharges of dredged or fill material 
into special aquatic sites, where there are concerns for the aquatic 
environment or other public interest review factors.
    We do not believe compensatory mitigation should be required for 
all bank stabilization activities. In cases where the bank 
stabilization activity affects a special aquatic site, it may be 
appropriate for the district engineer to require compensatory 
mitigation. For bank stabilization activities in other waters of the 
United States, the district engineer may determine that it is not 
necessary to require compensatory mitigation.
    Several commenters stated that pre-construction notification should 
be required for all activities authorized by this NWP. One commenter 
suggested adding language to clarify that any requests for waivers of 
limits for this NWP would be approved or denied during the 45-day pre-
construction notification review period. Another commenter requested 
that additional language be added to the text of the NWP to clarify 
that bank stabilization activities are authorized unless prohibited by 
the district engineer following review of the pre-construction 
notification.
    We do not agree that it is necessary to require pre-construction 
notification for all activities authorized by this NWP. Many small bank 
stabilization activities are conducted each year that result in minimal 
adverse effects on the aquatic environment. We have modified paragraph 
(a)(2) of general condition 27 to clarify that NWP activities that 
require written waivers of limits are not authorized unless the 
district engineer issues the written waiver. In other words, a default 
NWP authorization does not occur after 45 days if the proposed activity 
requires a written waiver. The modification to general condition 27 is 
sufficient to address this concern, and it is not necessary to modify 
the text of this NWP. In the case of this NWP, all activities that 
require a pre-construction notification also require a written waiver. 
The Corps will do its best to process requests for such waivers within 
45 days.
    One commenter stated that this NWP should not be used to authorize 
bank stabilization activities in waters of the United States inhabited 
by anadromous fish. One commenter stated that use of wood in bank 
stabilization projects may interfere with tribal rights, such as treaty 
fishing access, and therefore affected tribes should be notified of 
requests to use this NWP. Several commenters said interagency 
coordination should be conducted on all NWP 13 pre-construction 
notifications.
    Division engineers can regionally condition this NWP to restrict or 
prohibit its use in waters inhabited by anadromous fish. General 
condition 16, Tribal Rights, states that activities authorized by NWP 
cannot impair reserved treaty rights. Division and district engineers 
should consult with Tribes to develop regional conditions where 
necessary to ensure that tribal rights are adequately protected by this 
NWP. Division engineers can regionally condition this NWP to require 
coordination with Tribes when proposed NWP activities may affect Tribal 
lands or trust resources. General

[[Page 11109]]

condition 27, Pre-Construction Notification, sets out the requirements 
and procedures for interagency coordination for all NWPs; we do not 
believe additional requirements are necessary for this permit.
    A number of commenters requested clarification as to whether the 
linear and running foot limits in this NWP are applicable to the length 
of the bank or the length of the stream channel. Several commenters 
stated that the prohibition against stream channelization should be 
retained, while others recommended that it be removed because many bank 
stabilization activities could be considered stream channelization 
projects. One commenter stated that this NWP should not be used to 
authorize hardening of bank surfaces. A number of commenters also 
stated NWP 13 should only authorize vegetative or bioengineered 
stabilization methods and not bank hardening methods. One commenter 
recommended modifying this NWP to encourage bioengineered methods, or 
placement of riprap above the ordinary high water mark or high tide 
line, by not requiring pre-construction notification for such 
activities. Two commenters said that this NWP should be limited to 
bioengineering, living shoreline, or vegetative bank stabilization 
techniques, and that individual permits should be required for bank 
stabilization activities involving the placement of rip-rap and other 
hard armoring techniques.
    The linear foot and cubic yard limits apply to the length of the 
bank. We have modified paragraph (b) of this NWP to clarify that the 
500 linear foot limit applies to the length of the bank stabilization 
activity, not the length of the stream segment. We are retaining 
paragraph (g), since stream channelization activities may result in 
more than minimal adverse effects on the aquatic environment. Bank 
stabilization activities differ from stream channelization activities 
in several ways. Bank stabilization reduces or eliminates erosion to 
prevent the loss of structures or adjacent property, and typically only 
one side of a stream is stabilized. The location and cross-section 
shape of the waterway is generally unaffected except for material 
placed along the stabilized bank. Stream channelization alters the 
length, location, and/or cross section shape of a stream channel. 
Stream channelization changes the hydraulic flow characteristics of the 
stream, reduces channel complexity and diversity, and can include bank 
stabilization on one or both banks of the channelized waterway. Stream 
channelization substantially reduces natural stream functions, while 
bank stabilization by itself does not.
    We do not agree that this NWP should be limited to vegetative or 
bioengineering techniques. In many areas, those techniques will not 
provide adequate protection to the bank, especially in those waters 
where banks are subjected to substantial wave energy, such as coastal 
shorelines. In those areas, hard bank stabilization techniques may be 
the only feasible option. The pre-construction notification 
requirements in this permit apply to specific situations not directly 
related to the type of bank stabilization used (e.g., hard or 
vegetative). We do not believe that the use of bank hardening methods, 
in and of itself, requires a pre-construction notification, nor do we 
believe that pre-construction notification requirements should be 
waived simply because a project that exceeds the 500 foot or one cubic 
yard limit, or that involves discharges into special aquatic sites, 
uses vegetative or bioengineering techniques. However, for such 
projects, the use of more environmentally friendly methods may well be 
a factor in the district engineer's decision regarding whether or not 
to grant the requested waiver.
    One commenter suggested that in order to make the one cubic yard 
per running foot limit more practical for bank construction methods in 
streams of significant size, this limit should only apply to the amount 
of material placed from the ordinary high water mark to the streambed, 
and not to anything below or above those planes. Alternatively, the 
commenter suggested that this limit could be adjusted to increase 
proportionally with increasing channel depth at the ordinary high water 
mark, so that stream magnitude is taken into account. One commenter 
indicated that the language limiting the placement of erodible material 
may discourage plantings on riprap, since the soil used for those 
plantings could be washed away during high flows. One commenter said 
that NWP 13 should not be used with other permits. Another commenter 
suggested that this NWP be conditioned to prohibit the use of waste 
concrete for bank stabilization material, since it may adversely affect 
the environment. One commenter recommended modifying paragraph (d) (now 
designated as paragraph (e)) to state that the placement of material 
may not impair surface water flow into or out of any water of the 
United States. In the September 26, 2006, Federal Register notice, this 
paragraph referred only to wetlands.
    The cubic yard limit for this NWP, along with the waiver provision, 
is adequate to provide flexibility while protecting the aquatic 
environment and ensuring that authorized activities result in minimal 
adverse effects. We are retaining the language in paragraph (a), to 
help protect water quality. Bank stabilization projects involving the 
installation of plant materials on riprap may be authorized by this 
NWP, but erodible materials should be properly stabilized within the 
riprap or stabilized by other means. This NWP can be used with other 
NWPs to authorize single and complete projects that result in minimal 
individual and cumulative adverse effects on the aquatic environment, 
provided the permittee complies with general condition 24, Use of 
Multiple Nationwide Permits. General condition 6, Suitable Material, 
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. We have modified paragraph (e) by replacing the word 
``wetland'' with ``water of the United States'' to help ensure that 
surface water flows are maintained.
    This NWP is reissued with the modifications discussed above.
    NWP 14. Linear Transportation Projects. We proposed to modify this 
NWP to limit stream channel modifications to the minimum necessary to 
protect the linear transportation project and state that the NWP does 
not authorize temporary construction, access, and dewatering activities 
necessary to construct the linear transportation project.
    Several commenters supported our proposal to change the first 
sentence of this NWP to refer to ``linear transportation projects'' 
instead of ``linear transportation crossings.'' One commenter said that 
this sentence should be consistent with the definition of ``single and 
complete project.''
    We are retaining the proposed language in the first sentence of 
this NWP. However, in the case of linear transportation projects, a 
``single and complete project'' consists of a single crossing of a 
water of the United States, or more than one crossing at the same 
location (see the definition of ``single and complete project'').
    One commenter recommended reducing the acreage limit to \1/3\ acre. 
One commenter said that this NWP should not be used in tidal waters. 
Another commenter stated there should be a condition requiring culverts 
to allow for unimpeded upstream and downstream passage of fish as well 
as

[[Page 11110]]

the passage of substrate and wood expected to be carried by 100 year 
flow events.
    We do not agree that it is necessary to reduce the acreage limit to 
\1/3\ acre for all activities authorized by this NWP. The \1/2\ acre 
limit for losses of non-tidal waters and the \1/3\ acre limit for 
losses of tidal waters, in addition to the pre-construction 
notification requirements and other general conditions, will ensure 
that this NWP authorizes linear transportation projects that result in 
minimal adverse effects on the aquatic environment. General condition 
2, Aquatic Life Movements, states that no activity may disrupt the 
necessary life cycle movements of aquatic species, including those 
species that normally migrate through the area. General condition 9, 
Management of Water Flows, states that, to the maximum extent 
practicable, the activity must not restrict or impede the passage of 
normal or high flows, unless the primary purpose is to impound water.
    A large number of commenters objecting to the removal of the 
language regarding authorization of temporary construction, access, and 
dewatering activities necessary to construct the linear transportation 
project, because NWP 33 requires pre-construction notification for all 
activities. One commenter suggested that the Corps expressly state that 
all activities authorized previously under this NWP remain authorized.
    We have decided not to remove the language authorizing the 
temporary construction, access, and dewatering activities from this 
NWP. In addition, we have added a new paragraph to this NWP to help 
ensure that temporary impacts associated with NWP 14 activities are 
minimized, and that temporary fills are removed and affected areas are 
returned to pre-construction elevations and revegetated as appropriate.
    One commenter said that this NWP should not authorize the 
construction of new transportation or spur projects, because potential 
future development activities might occur after the transportation 
project is constructed. One commenter stated that the NWP should be 
applicable only to the expansion, modification or improvement of 
existing linear transportation projects. One commenter recommended 
modifying the pre-construction notification thresholds to clarify 
whether temporary losses require pre-construction notification.
    This NWP authorizes the construction, expansion, modification, or 
improvement of linear transportation projects that result in minimal 
individual and cumulative adverse effects on the aquatic environment. 
It does not prohibit new projects simply because there may be future 
development activities. It would be impractical to condition use of 
this NWP on consideration of hypothetical effects of potential future 
activities. Such effects will be addressed through applicable 
permitting requirements if and when future activities are proposed.
    The acreage-based pre-construction notification threshold applies 
only to permanent losses of waters of the United States. However, pre-
construction notification is also required for any discharges of 
dredged or fill material into special aquatic sites, whether those 
discharges are permanent or temporary.
    One commenter stated that this NWP should not authorize bridge 
footings, because they result in a significant impact to stream habitat 
and that edge habitat is lost to hardened banks. One commenter asked 
whether this NWP authorizes cul-de-sacs and hammerhead turnarounds.
    Bridge footings are necessary to construct certain types of linear 
transportation projects, and they usually result in minimal adverse 
effects on the aquatic environment. The pre-construction notification 
thresholds for this NWP will ensure that district engineers will review 
those activities with bridge footings that have the potential to result 
in more than minimal adverse effects on the aquatic environment. Bridge 
footings are generally confined to narrow stream segments, so only 
small amounts of edge habitat will be lost as a result of the 
construction of a bridge footing. In addition general condition 3, 
Spawning Areas, prohibits the physical destruction of important 
spawning areas that could result from these activities. Discretionary 
authority will be asserted in those cases where the construction of 
bridge footings will result in more than minimal individual and 
cumulative adverse effects on the aquatic environment. Cul-de-sacs and 
hammerhead turnarounds may be authorized by this NWP, as they are part 
of the street network used for transportation.
    Another commenter recommended adding storm water management 
features to the list of examples of activities authorized by this NWP. 
One commenter requested clarification as to whether stream 
modifications, encroachments, and relocations associated with highway 
construction are authorized. We received several comments on the 
proposed language limiting stream channel modifications to the minimum 
necessary to construct or protect linear transportation projects. One 
commenter objected to the proposal, stating that it would limit public 
transportation safety requirements by adding unnecessary restrictions.
    Storm water management features are authorized by this NWP, 
provided they are integral features of the linear transportation 
project. If they are not, then they may be authorized by NWP 43, 
regional general permits, or individual permits. Stream channel 
modifications are authorized by this NWP provided they are minimized 
and conducted in the immediate vicinity of the project. Otherwise, they 
require authorization under another NWP, a regional general permit, or 
an individual permit. This provision allows most linear transportation 
projects to use this NWP while ensuring that they result in minimal 
adverse effects on the aquatic environment.
    Two commenters requested further clarification on the meaning of 
the phrase ``minimum necessary.'' Another commenter recommended 
modifying this NWP to require these activities to result in no changes 
to the course or hydrology of streams.
    The phrase ``minimum necessary'' refers to minimizing the loss of 
waters of the United States needed to protect the project. This is 
determined based on case specific circumstances such as the 
environmental setting and the nature of the project. General condition 
9, Management of Water Flows, requires maintenance of the course, 
condition, capacity, and location of open waters, such as streams, to 
the maximum extent practicable. The construction of linear 
transportation projects over streams usually results in some 
unavoidable changes to stream morphology, but the conditions of the NWP 
authorization require such impacts to be minimized to the maximum 
extent practicable.
    Three commenters recommended adding a 300 linear foot limit to this 
NWP, and another commenter suggested a 2,000 linear foot limit. One 
commenter recommended a 200 linear foot limit.
    This NWP does not have a linear foot limit for stream bed impacts. 
Instead, the acreage limits for this NWP are sufficient to ensure that 
this NWP authorizes only those activities that result in minimal 
individual and cumulative adverse effects on the aquatic environment. A 
200 linear-foot limit was previously removed from NWP 14 to eliminate 
varied interpretations and to simplify the basis for use of the permit.
    This NWP is reissued with the modifications discussed above.

[[Page 11111]]

    NWP 15. U.S. Coast Guard Approved Bridges. There were no changes 
proposed for this NWP. One commenter asked why this permit only applies 
to U.S. Coast Guard approved bridges and not all bridges. The commenter 
suggested that the Corps simplify the permit by revising it to include 
construction, repair, seismic retrofit, or widening of any bridge, 
regardless of whether it spans navigable waters. Another commenter 
suggested modifying this NWP to allow the use of another NWP to 
authorize the causeways and approach fills.
    The authority to authorize bridges or causeways across navigable 
waters of the United States is held by the U.S. Coast Guard. This NWP 
provides authorization under Section 404 of the Clean Water Act for 
discharges of dredged or fill material into waters of the United States 
associated with the construction of those bridges. The construction, 
repair, seismic retrofit, or widening of these bridges must be approved 
by the U.S. Coast Guard. The environmental review conducted by the U.S. 
Coast Guard during its authorization process will normally suffice for 
those related activities that require the section 404 authorization 
provided by this NWP. District engineers can exercise discretionary 
authority when the adverse effects to the aquatic environment may be 
more than minimal. Bridges constructed across section 404 waters may be 
authorized by NWP 14, a regional general permit, or an individual 
permit. For the purposes of clarification, the last sentence of this 
NWP is revised to read as follows: ``Causeways and approach fills are 
not included in this NWP and will require a separate Section 404 
permit.''
    This NWP is reissued with the modification discussed above.
    NWP 16. Return Water From Upland Contained Disposal Areas. We 
proposed to rearrange the text of this NWP so that it will be 
consistent with the format of the other NWPs. No substantive changes 
were proposed to the text of the NWP. One commenter recommended that 
the permit require the issuance of a National Pollutant Discharge 
Elimination System permit under Section 402 of the Clean Water Act, in 
case the return water contains pollutants entrained in the dredged 
material. This commenter expressed concern that the discharge would not 
be properly considered through the water quality certification process 
under Section 401 of the Clean Water Act. One commenter said that the 
last sentence should be modified to acknowledge that incidental 
fallback would not require a section 404 permit.
    Return water from upland contained disposal areas is 
administratively defined as a discharge of dredged or fill material 
subject to section 404. Therefore, section 401 water quality 
certification is the appropriate process for determining whether the 
discharges associated with the return water comply with the appropriate 
water quality standards. It is not necessary to qualify the citation of 
33 CFR 323.2(d). District engineers will use that definition to 
determine whether section 404 permits are required for dredging 
activities. We believe that the inclusion of the citation provides a 
more complete description of activities that may constitute a discharge 
of dredged material.
    The NWP is reissued without change.
    NWP 17. Hydropower Projects. We proposed to rearrange the text of 
this NWP, without modifying any of its terms or its scope. One 
commenter stated that the NWP should not apply to hydropower projects 
exempt from Federal Energy Regulatory Commission licensing 
requirements. This commenter remarked that an individual permit should 
be required to ensure that impacts to aquatic resources are evaluated.
    We are retaining the applicability of this NWP to hydropower 
projects that are exempt from the licensing requirements of the Federal 
Energy Regulatory Commission. We believe the pre-construction 
notification process will provide adequate means for district engineers 
to assess the impacts to the aquatic environment and, if necessary, 
exercise discretionary authority and require an individual permit for a 
particular activity. 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 NWP is reissued as proposed.
    NWP 18. Minor Discharges. We proposed to modify this NWP by 
applying the \1/10\ acre limit to all losses of waters of the United 
States, not just special aquatic sites.
    Several commenters expressed support for the proposed revisions. A 
few commenters said that this NWP does not comply with the ``similar in 
nature'' requirement for general permits. Other commenters asserted 
that the cumulative impacts resulting from the use of this NWP would 
not be minimal. Another commenter said that this NWP should not 
authorize discharges into waters inhabited by species of anadromous 
salmon.
    We believe that the minor scope and nature of the types of 
discharge activities authorized by this NWP are sufficient to establish 
that the activities are similar in nature. We also maintain that the 
discretion vested in district engineers to issue case-specific special 
conditions, including requirements for appropriate and practicable 
mitigation, coupled with the ability of division engineers to impose 
regional conditions for certain activities will ensure minimal adverse 
effects on the aquatic environment, individually and cumulatively. We 
disagree that activities in areas accessible to anadromous salmonids 
will necessarily result in more than minimal impacts. Permittees must 
adhere to all applicable NWP general conditions including general 
condition 2, Aquatic Life Movements, and general condition 3, Spawning 
Areas. The terms and conditions of this NWP, as well as the ability for 
district engineers to exercise discretionary authority, will help 
ensure that the activities authorized by this NWP result in minimal 
adverse effects to anadromous salmon.
    Several commenters remarked that the wording of NWP 18 is confusing 
and suggested clarifications be provided. One commenter stated the 
language pertaining to ``losses'' is vague and suggested we clarify the 
text by adding ``permanent'' losses.
    We do not agree that additional modifications are necessary to 
clarify the terms and conditions of this NWP. The proposed revisions to 
the text of the NWPs were made to remove redundant language and 
simplify the wording to make it clearer and more concise. The term 
``loss of waters of the United States'' is defined in the 
``Definitions'' section which explains that the loss of waters of the 
United States includes the filled area and other waters that are 
permanently adversely affected by flooding, excavation or drainage 
because of the regulated activity. Therefore, we do not agree that 
elaboration on the term ``losses'' within the text of this NWP is 
warranted.
    Some commenters objected to the \1/10\ acre limit as an unnecessary 
administrative burden and unduly restrictive when coupled with the pre-
construction notification requirement.
    We do not agree that the \1/10\ acre limit will result in an 
unnecessary administrative burden or be unduly restrictive for the 
regulated public. While we recognize that the \1/10\ acre threshold may 
preclude use of this NWP for some activities, we have determined that 
activities that result in loss of more than \1/10\ acre of waters of 
the United States are not necessarily ``minor'' within the meaning of 
this permit. We believe the reduced scope of the permit

[[Page 11112]]

is justified by the enhanced protection afforded to the aquatic 
environment and will better ensure that authorized activities result in 
no more that minimal effects.
    Several commenters asserted that a 25 cubic yard threshold is 
sufficient to ensure minimal adverse impacts on the aquatic 
environment. One commenter suggested that the volume criteria reflect a 
net total volume of discharge or excavation to allow for the management 
of volumes greater than 25 cubic yards as long as the net total 
discharged or excavated does not exceed 25 cubic yards.
    The 25 cubic yard limit for excavating material, or discharging 
dredged or fill material, below the plane of the ordinary high water 
mark or high tide line is necessary to ensure that this NWP authorizes 
only those activities with minimal individual and cumulative adverse 
effects on the aquatic environment. Applying this 25 cubic yard limit 
to net volumes may result in more than minimal adverse effects, because 
it could allow substantially larger volumes of material to be excavated 
or discharged. Excavation or discharges of greater than 25 cubic yards 
in waters of the United States may be authorized by other types of 
permits, including regional general permits and individual permits. The 
language in the September 26, 2006, proposal also helps simplify the 
implementation of this NWP, by providing clear, easily measured limits 
and making it easier to enforce.
    Another commenter suggested this NWP be simplified to authorize 
only discharges of dredged or fill material and exclude excavation 
activities in section 10 waters since the Corps does not regulate 
excavation activities under section 404 that result only in incidental 
fallback.
    Excavation activities may result in discharges of dredged or fill 
material into waters of the United States that require section 404 
permits (see 33 CFR 323.2(d)). Therefore, it is not appropriate to 
remove references to excavation from this NWP. Unless exempted under 
Section 404(f) of the Clean Water Act, excavation activities in waters 
of the United States that result in more than incidental fallback 
require section 404 authorization. Minor discharges authorized under 
NWP 18 often involve excavation activities that result in more than 
incidental fallback and would therefore constitute a discharge that is 
regulated under section 404.
    One commenter recommended NWP 18 be specifically prohibited from 
use for any new residential and commercial construction and that 
impacts resulting from new residential or commercial development be 
subject to NWPs 29 and 39, respectively.
    This NWP authorizes minor discharges of dredged or fill material in 
waters of the United States provided that the activity complies with 
the specific terms and conditions of the NWP and all applicable NWP 
general conditions. The applicability and verification of the use of 
this NWP is at the discretion of district engineers based on case-
specific circumstances. Therefore, we believe it would be inappropriate 
to prohibit its use for new residential and commercial development in 
the absence of case-specific information. We note that the limits on 
use of this permit are more restrictive than the limits on use of NWPs 
29 and 39, so developers could only use this permit if their impacts 
were smaller than those that could be potentially authorized by these 
other NWPs.
    One commenter recommended including language stating that the 
discharge will not result in significant stream geomorphologic or 
hydrologic alteration, and that the discharge will not be placed for 
the purpose of, or result in, impeding navigation.
    General condition 9, Management of Water Flows, requires 
maintenance of the course, condition, capacity, and location of open 
waters, such as streams, to the maximum extent practicable. Concerns 
regarding potential impacts to navigation are addressed by general 
condition 1, which states that no activity may cause more than minimal 
adverse effects on navigation.
    This NWP is reissued as proposed.
    NWP 19. Minor Dredging. We proposed to remove the phrase ``as part 
of a single and complete project,'' since that requirement applies to 
all NWPs and it is not necessary to include that phrase in the text of 
this NWP. One commenter supported the proposed change.
    Another commenter said that the phrase ``including sites where 
submerged aquatic vegetation is documented to exist but may not be 
present in a given year'' is not appropriate and recommended that it be 
removed. The commenter asserted that the Corps should not prohibit the 
use of this NWP in areas where submerged aquatic vegetation was present 
in the past, but there is no longer evidence that it is still present.
    We are retaining this provision of the NWP, since areas where 
submerged aquatic vegetation is documented to exist have a high 
potential for those species to return to the area. In a given year, 
poor water quality may prevent submerged aquatic vegetation from 
inhabiting that area, but once water quality improves those plants may 
grow back.
    One commenter was concerned about authorizing minor dredging 
activities in waters containing habitat features for various life 
stages of anadromous fish, including complex wood structures and edge 
habitats used for juvenile rearing and adult holding. The commenter 
indicated that this NWP should not be used to authorize dredging in 
waters that are inhabited by anadromous salmonids.
    The terms and conditions of this NWP, as well as the ability for 
division and district engineers to exercise discretionary authority or 
condition this NWP, are sufficiently protective of species of 
anadromous salmon. General condition 2, Aquatic Life Movements, 
specifies no activity may disrupt the necessary life cycle movements of 
the aquatic species indigenous to the waterbody. In addition, general 
condition 3, Spawning Areas, states that activities in any spawning 
areas must be avoided to the maximum extent practicable during spawning 
seasons and the specific terms of this NWP prohibit its use in 
anadromous fish spawning areas at all. Additional time of year 
restrictions may be imposed by division and district engineers to 
reduce or avoid impacts to juvenile salmonids utilizing these areas.
    Other commenters expressed concerns that NWP 19 does not authorize 
activities that are similar in nature with minimal impacts. One 
commenter questioned whether this NWP can be used for removal of a 
sandbar across the mouth of a navigable waterway. A couple of 
commenters questioned why this NWP applies to section 404 waters when 
the text of the permit states that it only authorizes minor dredging 
activities in section 10 waters. One commenter said that this NWP 
should not authorize dredging activities in non-navigable waters, 
including small streams, because of the greater potential for more than 
minimal adverse environmental effects.
    We believe that the minor scope and nature of the types of dredging 
activities authorized by this NWP are sufficient to establish that the 
activities are similar in nature. This NWP can only be used to 
authorize the removal of materials from waters subject to Section 10 of 
the Rivers and Harbors Act of 1899. Dredging activities in section 10 
waters may require section 404 authorization, which may be provided by 
this NWP. In waters of the United States that are not

[[Page 11113]]

subject to section 10 jurisdiction (i.e., section 404-only waters), NWP 
18, regional general permits, or individual permits may be used to 
authorize those activities. This permit could be used to remove a 
sandbar across the mouth of a Section 10 water provided the activity 
met all of the other conditions for its use.
    This NWP is reissued without change.
    NWP 20. Oil Spill Cleanup. We did not propose any substantive 
changes to this NWP. One commenter requested clarification of the 
applicability of NWP 38 for emergency response to an oil release in 
waters of the United States from electrical equipment that is not 
covered by a Spill Prevention, Control, and Countermeasure (SPCC) Plan. 
These releases are governed by EPA's polychlorinated biphenyl spill 
response regulations at 40 CFR part 761. Because the activities are not 
included in a SPCC Plan, they were not authorized by the previous or 
the proposed versions of NWP 20. Since the required work must be 
initiated within 24 or 48 hours of discovery of the release, the 
commenter requested that either NWP 20 be modified or the pre-
construction notification requirement for NWP 38 be removed, to allow 
these activities to take place in a timely manner.
    We agree with the commenter's concern but do not think it is 
appropriate to remove the pre-construction notification requirement 
from NWP 38. We are thus modifying NWP 20 to authorize the cleanup of 
oil releases in waters of the United States from electrical equipment 
that are governed by EPA's polychlorinated biphenyl spill response 
regulations at 40 CFR part 761.
    This NWP is reissued with the modification discussed above.
    NWP 21. Surface Coal Mining Operations. We proposed to change the 
title of this NWP. We also proposed allowing authorization of projects 
by this NWP that were currently being processed as part of an 
integrated permit processing procedure in lieu of an authorization from 
the Department of Interior, Office of Surface Mining (OSM) or by states 
with approved programs under Title V of the Surface Mining Control and 
Reclamation Act (SMCRA) of 1977. The Corps, the Environmental 
Protection Agency, OSM, and the U.S. Fish and Wildlife Service entered 
into a Memorandum of Understanding on February 8, 2005. This MOU 
envisioned a collaborative process in which the SMCRA authority chooses 
to be the lead agency in coordinating interagency review of 
applications for surface coal mining operations while preserving the 
authorities and responsibilities of each agency for permit decisions.
    We believe there may be some confusion regarding the intent of the 
term ``surface'' coal mining operations. The Corps did not intend to 
restrict use of this NWP to only a particular type of coal mining 
technique. Any coal mining activities can be considered for 
authorization under NWP 21 to the extent the activities occur on the 
surface of the land. In particular, while discharges associated with 
underground coal mining activities now require authorization under NWP 
50 rather than NWP 21, surface processing activities associated with 
underground coal mining may still be authorized by this permit provided 
they meet the conditions for its use.

Proposed Limits

    There were numerous comments regarding limitations on NWP 21. A 
number of commenters recommended limits on the length of stream that 
could be filled under NWP 21, and other commenters recommended an 
overall limit on impacts to waters of the United States of \1/2\ acre. 
One commenter suggested that the threshold limits should be 2 acres and 
1,500 linear feet. Three commenters recommended a 300 linear foot limit 
on filling streams and a \1/2\ acre limit on impacts to all waters, and 
that these impacts could not be waived by the district engineer. Two 
other commenters concurred with the 300 foot limit but also suggested 
not allowing the use of NWP 21 in watersheds where the cumulative 
amount of filled streams was already causing more than minimal harm. 
Several commenters stated that any linear foot limits should apply to 
all streams, ephemeral, intermittent, and perennial. One commenter said 
that this NWP should not authorize discharges into perennial streams. 
Another commenter stated that the use of NWP 21 should not be allowed 
if more than 10 percent of the headwater streams in the watershed had 
been filled or otherwise degraded. One commenter stated that a 250-acre 
watershed limit was appropriate but that drainage areas was not the 
only factor that should be considered in determining if a project 
should qualify for NWP 21.
    There were also a substantial number of comments that objected to 
limitations on NWP 21. Many commenters stated that acreage limits that 
may be appropriate for eastern states would not be appropriate for 
western states and would be unnecessarily restrictive. Two commenters 
suggested issuing two versions of NWP 21, one for the western United 
States and another for the eastern United States. They discussed the 
differences in mining and reclamation techniques and believed the Corps 
should recognize these differences by establishing two NWPs for coal 
mining. One commenter noted that acreage limits need to be larger for 
the western United States. A number of commenters suggested that 
regional conditions could be used to address the issue of limits. 
Several commenters noted that there was no compelling scientific or 
environmental basis or rationale to establish limits on NWP 21. They 
noted that due to hydrologic, climatic, and ecological variations, 
there was no defensible way to establish a specific threshold below 
which impacts could be said to be ``minimal'' across the vastly 
differing geographical and hydrological regimes where mining occurs. 
Several commenters stated that arbitrary and unnecessary thresholds 
would slow the permit process and result in a loss of coal production, 
which could be construed as a ``takings'' that violated substantive due 
process rights. Other commenters noted that limiting the use of NWP 21 
would result in a loss in royalty and tax revenues and increases to the 
cost of the nation's energy supply by restricting coal production. One 
commenter noted that it would take more of the Corps' limited resources 
to review surface mining projects as individual permits. One commenter 
stated that thresholds would also impact the Corps' ability to comply 
with Executive Order 13212, which requires federal agencies to expedite 
their review of permits for energy related projects. One commenter 
noted that if a 2-acre limit were established for NWP 21, more than 60 
percent of the nation's coal production would not be eligible for the 
NWP. One commenter stated that a 3-acre limit in the western United 
States would have a significant impact on Western mining operations. 
One commenter noted that if a limit of less than 50 acres was adopted, 
the Corps' would not achieve its goal of focusing its limited resources 
on projects that have the potential for more environmentally damaging 
adverse effects. Two commenters believed safeguards were in place to 
ensure impacts do not cause more than minimal individual or cumulative 
effects. They noted that general condition 20, Mitigation, requires 
compensatory mitigation to offset the adverse effects to the aquatic 
environment, and that there was no need for arbitrarily chosen acreage 
limits because the mitigation requirement counterbalances all adverse 
effects.

[[Page 11114]]

    This NWP is used to provide section 404 authorization for surface 
coal mining activities that have also been authorized by the Office of 
Surface Mining or states with approved programs under Title V of the 
Surface Mining Control and Reclamation Act (SMCRA). Previously, there 
have been no limits associated with impacts to waters of the United 
States for NWP 21. This was based partly on the belief that the 
analyses and environmental protection performance standards required by 
SMCRA in conjunction with the pre-construction notification 
requirement, are generally sufficient to ensure that NWP 21 activities 
result in minimal individual and cumulative adverse impacts on the 
aquatic environment.
    Furthermore, we believe the change in NWP 21 in 2002, which 
requires not only notification to the Corps for all projects that may 
be authorized by this permit but also explicit authorization from the 
Corps before the activity can proceed, has strengthened the 
environmental protection for projects authorized by this permit. One 
commenter requested that this requirement be removed from this NWP. 
However, we continue to believe that this 2002 change helps ensure that 
no activity authorized by this permit will result in greater than 
minimal adverse impacts, either individually or cumulatively, on the 
aquatic environment, because it requires a case-by-case review of each 
project. If the district engineer determines through this case-by-case 
review that the activity has the potential to result in more than 
minimal adverse effects to the aquatic environment, he or she can 
exercise discretionary authority to require an individual permit. Also, 
because of the case-by-case review and the requirement for written 
verification, we do not agree that it is necessary to prohibit 
discharges of dredged or fill material into perennial streams.
    Lastly, the Corps recognizes that there are vast differences in 
coal mining techniques not only between the western and eastern parts 
of the United States, but also within the Illinois Coal Basin and the 
Appalachian Coal Fields themselves. There are also considerable 
differences in geological, topographical, climatological, hydrological 
and ecological regimes in the areas where coal resources are located 
across the United States. Furthermore, no specific scientific or 
environmental basis for determining a uniform national limit on NWP 21 
was submitted for consideration. As noted above, there were several 
comments suggesting specific limits but no ecological rationale was 
supplied to support these specific limits. Several commenters did 
submit information from the Programmatic Environmental Impact Statement 
(PEIS) for mountaintop mining/valley fill. However, the PEIS did not 
support or determine appropriate limits for NWP 21. Based on these 
considerations along with the fact that the impacts to waters vary 
greatly depending on the mining techniques and the environmental 
factors in the area, we have determined that establishing a specific 
threshold limit would not be practical on a national basis. We believe 
that regional conditions, as appropriate, and site-specific review of 
each pre-construction notification will ensure that NWP 21 authorizes 
activities with no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. The Corps has determined 
that it is both efficient and environmentally protective to issue an 
NWP 21 that can be used to authorize most activities that have no more 
than minimal adverse effects on the aquatic environment and allow 
division engineers to establish regional conditions that determine 
appropriate limits for impacts to waters based on the functions and 
values of aquatic resources within their division.

Regional Conditions

    There were three commenters who noted that the division engineer 
has the discretion to add regional terms and conditions to NWP 21 and 
that acreage limitations should be determined at the regional level. 
The Corps agrees, based on the discussion above regarding limitations, 
that regional conditions are the best way to address regional concerns 
regarding surface coal mining activities and NWP 21. Division engineers 
can add regional conditions to any NWP to further restrict the use of 
the NWP to ensure that the NWP authorizes only activities with no more 
than minimal adverse effects on the aquatic environment in a particular 
watershed or other geographic region. The division engineer cannot 
modify the NWP by adding regional conditions to make the NWP less 
restrictive (see 33 CFR 330.1(d)). The use of regional conditions 
recognizes that functions and values of aquatic resources differ 
greatly across the country.

Discretionary Authority

    Three commenters noted that NWP 21 allows the Corps to exercise 
discretionary authority during the pre-construction notification review 
process for any project which has the potential to cause more than 
minimal individual and cumulative adverse impacts on the aquatic 
environment.
    We agree with these commenters. The pre-construction notification 
requirements of all NWPs allows for a 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 the 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. While many NWPs allow the permittee to assume authorization if 
he or she has not heard back from the Corps within 45 days of 
submitting a complete pre-construction notification, NWP 21 requires 
written verification before the project can proceed. This ensures that 
adequate time is available to the Corps to review the extensive 
documentation that pre-construction notifications for NWP 21 often 
include, coordinate with other agencies as necessary, and determine 
whether exercise of discretionary authority is necessary to ensure no 
more than minimal effects.

Scope of Analysis

    One commenter stated that the scope of analysis for NWP 21 review 
should extend beyond the effects of fills in waters. Another commenter 
noted that the Clean Water Act is clear that general permits may only 
be issued if the permitted activities have minimal impacts on the 
environment as a whole and not just the aquatic environment.
    Several commenters stated that NWP 21 should not be reissued, in 
order to protect wildlife habitat, outdoor recreation, the quality of 
life in rural communities and environmental integrity. A myriad of 
comments were received itemizing impacts related to authorizations 
associated with NWP 21. These impacts included irreversible damages to 
the American people, the destruction of lives and the natural and 
cultural heritage of Appalachia, Montana and Wyoming, loss of hunting 
opportunities, the exploitation of impoverished areas by large 
corporations, global warming, landslides, blasting, truck traffic on 
roads not designed or built to handle heavy loads, harm to bird 
populations, destruction of valuable hardwood trees, loss of medicinal 
plants, affects on the tourism/vacation home industry, and local 
sickness. Several commenters stated that mined areas cannot be restored 
to pre-mining conditions, such as native forest. Several commenters

[[Page 11115]]

expressed concern about coal slurry damaging downstream areas.
    All of these impacts are outside of the Corps' scope of analysis 
pursuant to the National Environmental Policy Act (NEPA). The Corps 
evaluation of coal mining activities is focused on impacts to aquatic 
resources. Mining in general is permitted under a separate Federal law, 
the Surface Mining Control and Reclamation Act. Impacts associated with 
surface coal mining and reclamation operations are appropriately 
addressed by the Office of Surface Mining or the applicable state 
agency. Under these circumstances, the Corps' NEPA implementing 
regulations clearly restrict the Corps' scope of analysis to impacts to 
aquatic resources.

Integrated Permit Process

    Several commenters supported the Memorandum of Understanding (MOU) 
between the EPA, Corps, OSM and the USFWS regarding the integrated 
permit process for coal mining mentioned in the proposed NWP language. 
Some suggested the integrated permit process along with the Standard 
Operating Procedure (SOP) for NWP 21 be mandatory under NWP 21. Some 
commenters stated that the integrated permit process does not eliminate 
the dual review of section 404 and SMCRA as the MOU intended, while 
other commenters stated that the integrated permit process was unlawful 
because through it, the Corps has delegated its section 404 authority 
to the states processing the SMCRA permit applications. One of the 
commenters supporting the MOU stated that the current integrated permit 
process did not meet the goal of the MOU, as evidenced by its failure 
in Ohio, since dual reviews were still being undertaken by the 
regulatory agencies.
    The MOU recommends that Federal and state agencies coordinate 
reviews of coal mining permit applications, with the SMCRA agency as 
the lead agency. Currently, in areas that have developed or are in the 
process of developing an integrated permit process, the agencies have 
elected to make the process voluntary. The integrated permit process 
does not eliminate the regulatory responsibilities of the participating 
agencies, but allows the various permit applications to be reviewed 
concurrently while utilizing information from one application to 
fulfill required sections of other applications, where appropriate. The 
process allows for timelier reviews while providing the framework for 
better environmental protection. The Ohio integrated permit process is 
still in use for those who choose to use it.

State Programmatic General Permits and Regional General Permits

    Several commenters suggested that a state programmatic or regional 
general permit or other methods (e.g., a national MOU) be developed to 
reduce the duplication of effort by the regulatory agencies, therefore 
reducing cost and delays in receiving authorizations.
    State programmatic and regional general permits are developed at 
the district level. The Corps supports and participates in such efforts 
where possible.

Surface Mining Control and Reclamation Act

    Several commenters stated that coal mining is the most 
environmentally regulated activity, and SMCRA, along with Sections 401 
and 402 of the Clean Water Act, already require analyses of all of the 
factors addressed under Section 404 of the Clean Water Act. Therefore, 
as the above-referenced programs already regulate impacts to aquatic 
resources, including impacts related to water quality, endangered 
species, historic properties, and the hydrologic regime, further review 
by the Corps only creates an additional administrative burden without 
any real benefits.
    The Corps understands coal mining is covered by many environmental 
regulations; however the Corps has determined that SMCRA, in its 
current form, does not remove the need, either legally or 
substantively, for independent authorization under Section 404 of the 
Clean Water Act. Consequently, this NWP does not duplicate the SMCRA 
permit process. The Corps continues to work with the other agencies to 
avoid potential duplication of efforts and uses appropriate work and 
studies done by or for other agencies (e.g., surveys/findings under the 
Endangered Species Act or Section 106 of the National Historic 
Preservation Act as well as SMCRA permit documentation) in its analysis 
of the proposed project.

Mitigation

    Several commenters stated that mitigation done for NWP 21 is 
scientifically indefensible and, absent such mitigation, the projects 
authorized under NWP 21 have more than minimal adverse effect and are 
therefore impermissible. They stated that current mitigation projects 
have so far been unsuccessful and referenced a court case in the 
Southern District of West Virginia (Ohio Valley Environmental Coalition 
v. Bulen), where they noted that a Corps official stated that he did 
not know of a single instance of successful headwater stream creation. 
Also, the commenters stated that the Corps did not include any specific 
guidelines for how to assess stream function in order to determine the 
adequacy of compensatory mitigation. They also stated that the Corps 
has not shown that mitigation will offset the impacts authorized under 
NWP 21 or that off-site enhancement of streams would fully compensate 
for functions of streams that are destroyed. Other commenters stated 
that the Corps mistakenly allows the mitigation requirements of SMCRA 
and state water quality laws to satisfy the independent requirements of 
Section 404 of the Clean Water Act. They stated that allowing a 
permittee to claim a compensatory mitigation or reclamation activity 
already required under SMCRA as compensatory mitigation under the Clean 
Water Act is ``double-counting'' and improperly blurs the requirements 
of sequencing (i.e., avoidance, minimization, mitigation) imposed under 
the 404(b)(1) guidelines. Other commenters recommended that mitigation 
of 1:1 should be required in order to achieve no net loss, and that 
mitigation also be required for potential, as well as actual, impacts. 
Several commenters stated that final reclamation of wetland habitat 
will most likely exceed the required compensatory mitigation.
    In order to ensure that an activity results in no more than minimal 
adverse effect on the aquatic environment, the Corps will add permit 
conditions that require compensatory mitigation that meets specified 
success criteria. The Corps will generally require the permittee to 
monitor the mitigation site for five years and, if the mitigation site 
does not meet the success criteria at that time, remediation or 
additional mitigation will be required. This ensures that the 
authorized activity will not result in a net loss in aquatic functions. 
The Corps has increased its compliance efforts to ensure that projects 
authorized by DA permits are constructed as authorized and that 
mitigation is successful.
    We are currently developing new stream functional assessment 
protocols to identify and quantify the functions lost through 
authorized impacts and the functions gained or enhanced through 
mitigation. We removed the language from the proposed NWP 21 that 
required the applicant to furnish a SMCRA or state-approved mitigation 
plan. The Corps recognizes that SMCRA does not require ``mitigation'' 
per-se, but does require ``reclamation/restoration'', and that some 
states require ``mitigation'' above Corps requirements.

[[Page 11116]]

The Corps coordinates with the SMCRA and state resource agencies to 
achieve appropriate aquatic restoration on mine sites, which can reduce 
or eliminate off-site compensatory mitigation needs. The Corps does not 
consider this ``double-counting'', because the areas restored are only 
counted once in the replacement of aquatic resource functions. As long 
as the functions lost as a result of the permitted activity are 
mitigated through the onsite restoration or enhancement, it does not 
matter if the restoration also meets other goals unrelated to the 
Section 404 impacts. General condition 20 establishes the framework for 
achieving no net loss of waters/wetlands, as well as the sequential 
review of mitigation on-site. The Corps takes into account the fact 
that, in certain areas and circumstances, any Corps compensatory 
mitigation requirement may be fully encompassed or exceeded by 
requirements under other authorities. As long as the impacts to the 
aquatic environment are fully mitigated, the Corps will not require 
additional compensation.

Withdraw NWP 21

    Several commenters requested that NWP 21 be withdrawn and that the 
Corps consider authorizations under state or regional permits where 
cumulative impacts and mitigation measures can be evaluated on a more 
focused level that assures minimal impacts on the environment.
    Division and district engineers have the authority to revoke or 
modify any or all of the NWPs and require authorizations for proposed 
projects by other general permits or individual permits. This should be 
determined on a local level.

Independent Evaluation

    Several commenters stated that the burial or other degradation of 
hundreds of miles of Appalachian streams from mining demands a 
thorough, independent review, public notice, and analysis of 
alternatives and minimization, which is provided only through the 
individual permit process. A few commenters stated that coal mining 
rearranges the natural landscape and deserves to be studied on a case-
by-case basis. One commenter stated that each project should be 
independently evaluated with proper safeguards in place to include 
meaningful bonds that would be sufficient to cover remediation costs 
when companies declare bankruptcy.
    A careful case-specific determination that a project will result in 
no more than minimal impacts is necessary for a project to be 
authorized by this NWP. The pre-construction notification process for 
NWP 21, which requires the applicant to wait until he or she receives 
verification from the Corps, provides this case-specific determination. 
If the District Engineer determines that a particular proposal will 
result in more than minimal adverse environmental effects, he will 
assert discretionary authority and require an individual permit. 
Bonding is covered under general condition 20. The Corps notes that the 
SMCRA permitting process provides for public notice and comment on all 
coal mining permits.

Minimal Adverse Effects

    A few commenters stated that the Secretary of the Army can only 
issue NWPs by making an up-front determination that the activities 
authorized by each NWP category will cause only minimal adverse effects 
and the Corps cannot ignore harm already done when assessing cumulative 
impacts. The commenters stated that the Corps has no reasoned basis or 
substantial evidence to support its determinations that the individual 
or cumulative environmental impacts associated with NWP 21 will be 
minimal. Several commenters similarly stated that compensatory 
mitigation could not be used to reduce the net adverse impacts to the 
minimal level in order to qualify for general permits. Therefore, NWP 
21 exceeds the definition of minimal adverse environmental effects and 
all coal mining should be reviewed under the individual permit process. 
A number of commenters stated that surface coal mining results in 
significant ecological damage to headwater stream systems, when 
considered both individually and cumulatively, and it cannot be 
reasonably assumed that those stream losses can be mitigated into 
insignificance.
    We believe our process for NWP 21 ensures that activities 
authorized by the NWP result in no more than minimal adverse impacts to 
the aquatic environment because each project is reviewed on a case-by-
case basis and the district engineer either makes a minimal impacts 
determination on the project or asserts discretionary authority and 
requires an individual permit. Additionally, as noted above, division 
engineers can add regional conditions to any NWP to further restrict 
the use of the NWP to ensure that the NWP authorizes only activities 
with no more than minimal adverse effects on the aquatic environment in 
a particular watershed or other geographic region. Each district tracks 
losses of waters of the United States authorized by Department of the 
Army permits, including NWPs, as well as compensatory mitigation 
achieved through aquatic resource restoration, creation, and 
enhancement.
    In addition, we believe that the Corps can rely on mitigation in 
making a minimal adverse environmental effects determination.
    One commenter requested that the Corps clarify what constitutes a 
``single and complete surface coal mining operation'' since approved 
mines can expand through either the addition of substantial acreages or 
the addition of small acreages (incidental boundary revisions). This 
commenter asked whether all revisions, including incidental boundary 
revisions, are considered as single and complete coal mining 
operations.
    District engineers use the criteria in the definition of ``single 
and complete project,'' which is found in the ``Definitions'' section 
of the NWPs, when identifying single and complete coal mining 
operations. District engineers will determine, on a case-by-case basis, 
whether the expansion of an existing mine constitutes a separate single 
and complete project.

Impacts From NWP 21 Activities

    Many commenters opposed the reissuance of NWP 21 because of the 
potential impacts to the aquatic environment and water resources. 
Several commenters expressed concerns about impacts to water supplies 
and drinking water, downstream water uses, and recreational 
opportunities such as fishing. Concerns were also expressed about water 
pollution, the effects of burying streams that support aquifers, and 
loss of streams and wetlands. This NWP requires compliance with all of 
the general conditions for the NWPs, which address many of these 
concerns. Additionally, many of these factors will be evaluated during 
the project-specific evaluation.
    One commenter noted that NWP 21 does not provide the public an 
opportunity to comment on the specific conditions of a permit that will 
affect their communities and watersheds.
    Section 404(e) of the Clean Water Act provides the statutory 
authority for the issuance of general permits on a nationwide basis for 
any category of activities. The Corps establishes NWPs in accordance 
with section 404(e), by publishing and requesting comments on the 
proposed permits. The general public has the opportunity to comment on 
NWPs at this time. In order to address the requirements of the National 
Environmental Policy Act, the Corps prepares a decision document for 
each

[[Page 11117]]

NWP along with a 404(b)(1) Guidelines analysis. The decision document 
discusses the anticipated impacts on the Corps' public interest factors 
from a national perspective. NWPs are issued at the conclusion of this 
process. The individual projects that are proposed for authorization 
under an NWP are not given a permit but a verification or authorization 
that the project complies with an NWP. There are no requirements for 
public comments on specific projects authorized under NWPs. However, in 
the case of NWP 21, all projects must have undergone a separate SMCRA 
review process the provides for public notice and comment.
    Several commenters recommended that NWP 21 be eliminated because it 
fails to require that the applicant demonstrate that there are no 
practicable alternatives to placing fill in waters of the United 
States, a requirement of Section 404(e) of the Clean Water Act. The 
commenters stated that the Corps wrongly assumes the SMCRA process to 
be comparable to Section 404 and the 404(b)(1) Guidelines. The 
commenters noted that, in fact, SMCRA does not require the applicant to 
choose the method of coal waste management that avoids and minimizes 
impacts and is least damaging to waters of the United States.
    The Corps does not assume that other state or Federal agencies 
conduct a review that is comparable to the section 404(b)(1) 
Guidelines. Although analysis of offsite alternatives is not required 
in conjunction with general permits, each proposed project is evaluated 
for onsite avoidance and minimization, in accordance with general 
condition 20, and is not authorized under the NWP if the adverse 
impacts to waters of the United States are more than minimal.
    Five commenters noted that coal slurry impoundments should not be 
allowed by an NWP and that NWPs can only be issued for activities that 
are similar in nature and that valley fills and coal slurry 
impoundments are not similar in nature.
    The Corps has determined that slurry impoundments and valley fills 
are part of surface coal mining activities and are therefore similar in 
nature. The ``similar in nature'' requirement does not mean that 
activities authorized by an NWP must be identical to each other. We 
believe the ``categories of activities that are similar in nature'' 
requirement of Section 404(e) is to be interpreted broadly, for 
practical implementation of the NWP program.
    The NWP is reissued as proposed.
    NWP 22. Removal of Vessels. We proposed to rearrange the text of 
this NWP so that it is in a format similar to the other NWPs. In 
addition, we proposed to require pre-construction notification if the 
activity requires discharges of dredged or fill material into special 
aquatic sites.
    One commenter asked if the pre-construction notification 
requirement included marine protected areas. One commenter said that 
pre-construction notification should be required for all vessel 
removals because certain removal methodologies may result in additional 
environmental impacts. One commenter stated that pre-construction 
notification should be required for all vessel removals from special 
aquatic sites, not just those involving discharges of dredged or fill 
material.
    Pre-construction notification is required for NWP 22 activities in 
designated critical resources waters and their adjacent wetlands (see 
general condition 19), which may include marine protected areas. 
Designated critical resource waters include NOAA-designated marine 
sanctuaries, Natural Estuarine Research Reserves, and other waters 
identified by the district engineer after the issuance of a public 
notice and an opportunity for public comment. We do not agree that pre-
construction notification should be required for all activities 
authorized by this NWP. However, we are modifying this NWP to require 
pre-construction notification for activities in special aquatic sites, 
to ensure that those activities result in minimal adverse effects on 
the aquatic environment. Vessel removal activities in special aquatic 
sites, especially coral reefs and vegetated shallows, have the 
potential to result in more than minimal adverse effects, even though 
there may be no discharge of dredged or fill material. Vessel removal 
activities in other areas conducted in compliance with the NWP and the 
general conditions will normally have no more than minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
Further, division and district engineers will condition these 
activities as necessary to ensure that they will have no more than 
minimal adverse effects on the aquatic environment, individually and 
cumulatively.
    Another commenter observed that vehicles are often found in waters 
of the United States due to accidents, abandonment, and other reasons, 
and that the removal of the vehicles is necessary to minimize the 
adverse environmental impacts associated with release of automotive 
fluids. The commenter requested that this NWP be modified to allow for 
the expedited removal of vehicles from waters of the United States.
    We agree that the presence of vehicles, and the associated 
automotive fluids, in waters of the United States can be 
environmentally damaging, and this NWP can be used to authorize their 
removal when they constitute an obstruction to navigation. However, we 
believe that the pre-construction notification requirements for 
activities into special aquatic sites are necessary to ensure that the 
activities authorized by this NWP have no more than minimal adverse 
effects. Division and district engineers can evaluate projects on a 
case by basis in situations where pollutants may be leaking from 
vehicles and determine if expedited or emergency processing procedures 
are warranted.
    A commenter requested that the Corps indicate when EPA and Corps 
permits are required or provide citations to EPA and Corps regulations. 
One commenter noted that the parenthetical identification of statutory 
authorities was not included at the end of the text for this NWP.
    The ``Note'' to this NWP already includes a citation of applicable 
EPA regulations. We do not believe it is necessary to add citations to 
the Corps regulations for implementing Section 404 of the Clean Water 
Act and Section 10 of the Rivers and Harbors Act of 1899. We are 
correcting this NWP to identify the statutory authorities under which 
this NWP is issued (i.e., sections 10 and 404).
    Another commenter requested that the Corps clarify in the preamble 
to the final rule that this NWP also applies to the removal of objects 
and structures such as derelict mooring and breasting structures, 
piles, docks, bridges and trestles that are man made obstructions to 
navigation. They remarked that some districts apply this NWP only to 
the removal of vessels. One commenter requested clarification as to 
when a pre-construction notification is required with respect to 
general condition 18, Historic Properties. They asked if the permittee 
would have to wait to remove the vessel until after the district 
engineer has informed the permittee that compliance with general 
condition 18 is complete.
    The text of the NWP clearly states that the NWP applies to the 
removal of man-made obstructions to navigation, which may include any 
of the obstructions identified by the commenter in addition to wrecked, 
abandoned, or disabled vessels. If the vessel is listed, or eligible 
for listing, in the National Register of Historic Places, then 
consultation under Section 106 of the National Historic

[[Page 11118]]

Preservation Act is required. The permittee would have to wait until 
the section 106 process has been completed before conducting the work.
    The NWP is reissued with the modification discussed above.
    NWP 23. Approved Categorical Exclusions. We proposed to modify this 
NWP by reorganizing the text, adding language to explain that Corps' 
Regulatory Guidance Letters (RGLs) list the approved Categorical 
Exclusion (CE) activities, and adding language that directs prospective 
permittees to the appropriate RGLs to determine if pre-construction 
notification is required.
    One commenter supported the proposed rewording of NWP 23, and 
supported the clarification of pre-construction notification 
requirements. One commenter remarked that this NWP violates the intent 
of the National Environmental Policy Act (NEPA) by enabling developers 
to avoid addressing ecological impacts.
    The process for approving categorical exclusions for use with this 
NWP, including any approved categorical exclusions that require pre-
construction notification, helps ensure that this NWP authorizes only 
those activities that result in minimal individual and cumulative 
adverse effects on the aquatic environment and the public interest. In 
addition, only the actions of government agencies qualify for this NWP.
    Another commenter suggested requiring pre-construction notification 
for activities adversely affecting more than \1/10\ acre of wetland, 
and recommended adding a \1/3\-acre limit to this NWP for wetland 
impacts. One commenter suggested that larger activities should be 
evaluated under individual permit procedures instead of using this NWP, 
and suggested that large highway projects impacting wetlands should not 
be authorized without the public involvement and the environmental 
safeguards of the 404(b)(1) Guidelines. One commenter suggested that 
all projects requiring stream channelization and any bridges spanning 
less than 1.5 times the bankfull width of a stream should be evaluated 
through the individual permit process.
    The pre-construction notification thresholds established for the 
categorical exclusions approved for use with this NWP require case-by-
case review for activities that have the potential to result in more 
than minimal adverse effects on the aquatic environment. For the same 
reasons, it is not necessary to impose an acreage limit on this NWP or 
require individual permits for large highway projects that impact small 
amounts of waters of the United States and qualify for approved 
categorical exclusions. In response to a pre-construction notification, 
the district engineer can add special conditions to the NWP 
authorization to ensure that adverse effects on the aquatic environment 
are minimal or exercise discretionary authority to require an 
individual permit for the work.
    Two commenters said that this NWP authorizes activities that are 
not similar in nature. One commenter suggested that categorizing 
impacts by the effects instead of by the nature of activity is invalid, 
and that there appeared to be no limiting principle on the nature of 
the activities that could be permitted.
    Regulatory Guidance Letter 05-07 lists all categorical exclusions 
currently approved for use with this NWP as of the date of this notice. 
This RGL is available on the Internet at: http://www.usace.army.mil/cw/cecwo/reg/rgls/rgl_05_07_v2.pdf. The lists of approved categorical 
exclusion activities referenced in RGL 05-07 represents impacts that 
are minor in nature, both individually and collectively. A limiting 
principle on the nature of activities exists because each government 
agency has inherent and mission-specific responsibilities and projects, 
and activities proposed by a specific agency within an approved 
categorical exclusion are similar in nature. The primary Federal action 
agency determines that the activities are categorically excluded from 
further environmental review. 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 can condition such activities where necessary to 
ensure there will be no more than minimal adverse effects on the 
aquatic environment, or exercise discretionary authority to require an 
individual permit for the work.
    Two commenters asserted that the NWP fails to comply with a 
statutory requirement that the activities have minimal impacts 
individually and cumulatively. One of these commenters said that the 
Corps' estimate of 1,020 acres of impact to waters of the United States 
represents a significant impact.
    We disagree with this assertion. Pre-construction notification is 
required for certain approved categorical exclusions that apply to 
activities that have the potential to result in more than minimal 
individual and cumulative adverse effects on the aquatic environment. 
In general, impacts authorized by this NWP are not significant because 
they are individually minor, are widely distributed across a vast area, 
and are scattered across many watersheds. In addition, compensatory 
mitigation offsets the authorized losses, and helps ensure that the 
authorized activities result in minimal adverse effects on the aquatic 
environment.
    One commenter objected to the lack of specificity regarding the 
method of solicitation of public comments if new categorically excluded 
activities are proposed.
    When proposing to add categorical exclusions for use with this NWP, 
Corps Headquarters publishes a proposal in the ``Notices'' section of 
the Federal Register. Public comment will be solicited through this 
notice, and all comments received will be thoroughly considered when 
the Corps makes its determination regarding those proposed categorical 
exclusions.
    One commenter asked that the ``Note'' at the end of this NWP be 
expanded to list all of the agencies or departments that have 
categorical exclusions approved for use under this NWP. One commenter 
believed that referencing RGLs in the NWP is not sufficient, and 
suggested that the list of approved activities and pre-construction 
notification requirements be wholly included within the text of the 
permit rather than referenced to a separate document. Another commenter 
stated that the pre-construction notification requirements are vague, 
and recommended stating the pre-construction notification requirements 
within the text of the NWP or listing the specific RGL to refer to for 
those pre-construction notification requirements.
    We have modified the ``Note'' by adding a sentence listing the 
agencies with approved categorical exclusions. Listing the approved 
activities and pre-construction notification requirements in the text 
of the permit is impractical, because of the lengths of those lists. In 
addition, simply referencing the list of RGLs is more useful because 
additional RGLs may be issued if more categorical exclusions are 
approved for use with this NWP.
    One commenter asked that the text of this NWP be amended to 
acknowledge that state transportation agencies can legally assume the 
responsibility for categorical exclusion determinations for the Federal 
Highway Administration (FHWA).
    The current text of the NWP states that activities ``undertaken, 
assisted, authorized, regulated, funded, or financed'' in whole or in 
part by a Federal agency are eligible to be considered by the Corps for 
possible approval as a categorical exclusion. We

[[Page 11119]]

believe that the current text is sufficient and there is no need to 
restate or affirm the relationships between the FHWA and the state 
transportation agencies, which generally fall into one or more of these 
categories.
    This NWP is reissued as proposed.
    NWP 24. Indian Tribe or State Administered Section 404 Programs. We 
proposed to add Indian tribes to this NWP, since they can be approved 
by EPA to administer the section 404 program. No comments were 
received.
    This NWP is reissued as proposed.
    NWP 25. Structural Discharges. No changes to this NWP were 
proposed. One commenter stated that it is difficult to perform these 
types of activities without some minor related temporary construction 
activity. They suggest adding a statement that allows minor 
construction activities.
    The construction of these structural members is usually 
accomplished by installing sheeting or pilings to construct forms, 
which are then filled with concrete, sand, rock, or other materials. 
The installation of the sheeting or pilings usually does not result in 
a discharge of fill material that would require section 404 
authorization. However, in cases where temporary construction, access, 
and dewatering activities are necessary to complete the activities 
authorized by this NWP, those temporary activities may be authorized by 
NWP 33, a regional general permit, or an individual permit.
    The NWP is reissued as proposed.
    NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities. We proposed to modify this NWP by requiring reporting to 
the district engineer for those activities that do not require pre-
construction notification. We also proposed to add shellfish seeding to 
the list of examples of activities authorized by this NWP, and remove 
the restriction limiting the use of this NWP only to those mitigation 
banks that have been approved in accordance with the 1995 mitigation 
banking guidelines. In addition, we proposed to prohibit the use of the 
NWP to authorize the conversion of natural wetlands.
    We have modified the first paragraph of this NWP to more clearly 
present the general categories of authorized activities.
    One commenter supported the broadening of the title of this NWP to 
include all aquatic habitats. One commenter said that this NWP has the 
potential to authorize projects with significant adverse impacts. One 
commenter said that this NWP should be revoked, because it could result 
in losses of wetland function and habitat and other adverse impacts to 
the aquatic environment. One commenter stated that there should be an 
acreage limit on this NWP. Two commenters said that wetland impacts 
should be limited to 2 acres, and another commenter stated that stream 
impacts should be limited to 2,000 linear feet. Another commenter 
stated that the lack of an acreage limit on this NWP does not encourage 
applicants to minimize adverse impacts. This commenter suggested a \1/
2\ acre limit for wetland fills and a 300 linear foot limit for stream 
impacts.
    This NWP authorizes aquatic habitat restoration, establishment, and 
enhancement activities, provided those activities result in net 
increases in aquatic resource functions and services. Its use will not 
cause significant adverse effects on the overall aquatic environment. 
We do not believe there should be an acreage limit on this NWP, because 
of the requirement for these projects to result in net increases in 
aquatic resource functions and services. Moreover, all activities 
authorized under this NWP will be reviewed in advance by the Corps, 
either through the pre-construction notification requirement, or 
through the reporting requirement for projects conducted under 
authorities of other Federal agencies.
    One commenter recommended prohibiting establishment of open water 
areas in existing wetlands and streams, and prohibiting the relocation 
of all aquatic resources. One commenter recommended removing the 
references to waterfowl impoundments because those impoundments may be 
considered enhancements by some people. This commenter said the 
establishment of impoundments in streams or natural wetlands should not 
be allowed for any reason. One commenter requested clarification 
whether this NWP authorizes green-tree reservoirs. One commenter 
suggested allowing dam removal activities to be authorized by this NWP. 
One commenter said that this NWP should authorize stream establishment, 
in cases where impaired or degraded streams can be relocated to provide 
net benefits to the aquatic environment and the overall watershed.
    We have modified the text of this NWP, by removing the reference to 
establishing an impoundment for wildlife habitat. This NWP does not 
authorize green-tree reservoirs, because those activities generally 
degrade natural wetlands and would not result in a net increase in 
aquatic resource functions and services. Discharges of dredged or fill 
material into waters of the United States for the continued operation 
of existing green-tree reservoirs may be authorized by NWP 30. New 
green-tree reservoirs may be authorized by individual permits or 
regional general permits. This NWP prohibits the conversion of streams 
or natural wetlands to other aquatic habitat types or uplands, except 
for the relocation of non-tidal waters on the project site. We have 
also simplified the language regarding the relocation of non-tidal 
waters, including non-tidal wetlands, on the project site. The 
requirement that such relocations provide net gains in aquatic resource 
functions and services has been retained. Dam removal activities can be 
authorized by this NWP, provided they meet the requirements for its 
use, including that there is a net increase in aquatic resource 
functions and services. We have modified the third paragraph of this 
NWP to state that this NWP can be used to authorize the relocation of 
non-tidal streams, provided there are net increases to aquatic resource 
functions and services.
    One commenter stated that using this NWP to authorize the 
relocation of non-tidal waters, including non-tidal wetlands, on the 
project site as long as there are net gains in aquatic resource 
functions and services, appears to contradict the provision prohibiting 
the conversion of streams or natural wetlands to another aquatic use. 
This commenter indicated that there will be different interpretations 
of the relative value of certain aquatic resource functions and 
services. This commenter also said that temporal lags associated with 
replacing certain wetland types, such as forested wetlands, should be 
considered.
    The relocation of non-tidal waters on a project site does not 
necessarily contradict the provision prohibiting the conversion of 
streams or natural wetlands to another aquatic habitat type, if 
comparable streams or wetlands are restored or established elsewhere on 
the project site. District engineers will determine compliance with 
these provisions on a case-by-case basis, in response to a pre-
construction notification or a report. We recognize that relocating 
non-tidal waters may result in temporal losses of certain aquatic 
resource functions and services, while the relocated waters undergo 
ecosystem development. To comply with these provisions of this NWP, the 
net increases in aquatic resource functions and services does not need 
to occur immediately after the NWP 27 activity has been constructed. 
However, those net increases need to occur over time through ecosystem 
development processes as a result of a successful

[[Page 11120]]

aquatic habitat restoration, establishment, or enhancement activity.
    Two commenters noted that conversion of streams or wetlands to 
other aquatic uses is prohibited but conversions of waters to uplands 
are not prohibited. Three commenters supported the proposed language 
prohibiting conversion of streams or natural wetlands to other aquatic 
uses. Another commenter supported the language prohibiting conversion 
of wetlands to other aquatic uses, but said that it may limit the 
usefulness of this NWP, as it will not be able to authorize large 
ecosystem restoration projects that involve conversions of wetlands to 
other aquatic types, even where there are net benefits for the aquatic 
environment.
    We have modified this NWP to prohibit the conversion of streams or 
natural wetlands to uplands. This prohibition does not apply to 
projects involving the relocation of non-tidal waters on the project 
site, as long as those activities result in net increases in aquatic 
resource functions and services. Large ecosystem restoration projects 
that involve conversions of aquatic habitat to other aquatic uses are 
more appropriately authorized through either regional general permits 
or individual permits.
    To prevent re-arrangement of wetlands within a single development 
tract, one commenter asked that this NWP prohibit the relocation of 
aquatic habitat types on parcels where a local planning document exists 
for the development. One commenter objected to prohibiting the 
conversion of natural wetlands to other aquatic uses on the grounds 
that NWPs are intended to allow any activities with minimal adverse 
effects. This commenter stated that some conversions enhance ecosystem 
functions.
    This NWP can be used to authorize relocation of aquatic habitats on 
a project site, even those with development activities, provided there 
are net gains in aquatic resource functions and services. These 
activities can be beneficial in cases where the development activity 
could have indirect adverse effects on the functions of existing 
aquatic resources on the project site, and where relocating those 
aquatic resources would result in enhanced ecosystem functions. We have 
revised the text of this NWP to prohibit the conversion of natural 
wetlands to other uses, unless that conversion is part of relocating 
non-tidal waters on the project site. This NWP does not authorize 
stream channelization, which often involves extensive armoring and 
straightening of stream channels.
    One commenter suggested allowing the use of NWP 27 for the 
restoration and enhancement of tidal streams and tidal open waters. 
Another commenter said that this NWP should authorize the relocation 
and/or conversion of any tidal waters, provided the proposed work would 
result in net increases in aquatic resource functions and services. One 
commenter stated that this NWP should not authorize the construction of 
impoundments or partial impoundments in tidal wetlands or estuarine 
waters.
    This NWP does not authorize the restoration of tidal streams and 
tidal open waters, but may authorize the restoration of riparian areas 
next to such waters. The restoration of tidal streams and other tidal 
open waters that involve more than restoring riparian areas is more 
appropriately authorized by other Department of the Army permits, since 
those activities may result in more than minimal adverse effects on the 
aquatic environment. We do not believe it would be appropriate to 
modify this NWP to authorize those activities. We maintain our position 
that this NWP should not authorize the relocation or conversion of 
tidal waters. Those activities may be authorized by individual permits 
or regional general permits. This NWP does not authorize the conversion 
of tidal waters to other uses, such as impoundments or partial 
impoundments.
    One commenter said that many activities proposed as restoration 
actually degrade habitat or result in a net loss of habitat, and stated 
that pre-construction notification should be required for all 
activities authorized by this NWP, to determine the beneficial effects 
and whether the activity is protective of tribal resources.
    Pre-construction notification is required for activities authorized 
by this NWP, except for those activities conducted in accordance with 
binding agreements between certain Federal agencies or their designated 
state cooperating agencies, voluntary wetland activities documented by 
the NRCS or USDA Technical Service Provider pursuant to NRCS Field 
Office Technical Guide standards, or the reclamation of surface coal 
mining lands, in accordance with permits issued by the Office of 
Surface Mining or the applicable state agency. For those activities 
that do not require pre-construction notification, reporting to the 
district engineer is required. In the latter cases, the district 
engineer can review the documentation provided through reporting to 
ensure that the activity qualifies for NWP authorization. The reporting 
requirements provide district engineers with the opportunity to review 
aquatic habitat restoration, establishment, and enhancement activities 
conducted under the purview of other government entities, to ensure 
that those activities result in net increases in aquatic resource 
functions and services. The pre-construction notification requirements, 
as well as the reporting requirements, will help ensure that this NWP 
authorizes only activities that comply with the terms and conditions of 
this NWP, including general condition 16, Tribal Rights.
    One commenter stated that the reporting requirement for voluntary 
NRCS-related wetland projects would be burdensome, and suggested that 
requiring NRCS documentation could discourage voluntary wetland 
restoration activities. Another commenter said that there appears to be 
little difference between the reporting and pre-construction 
notification provisions, and suggested requiring pre-construction 
notifications for all NWP 27 activities. Two commenters supported the 
requirement that copies of restoration agreements be submitted. One 
commenter recommended requiring pre-construction notifications and 
interagency coordination for all projects using NWP 27, to ensure that 
development activities are not conducted as NWP 27 activities. A 
commenter objected to requiring the submittal of restoration agreements 
to fulfill the reporting requirement, citing privacy concerns. This 
commenter said that alternative types of information could be submitted 
instead to report proposed NWP 27 activities conducted under these 
agreements. One commenter stated that the Corps and other agencies 
should be required to approve wetland enhancement, restoration, or 
establishment agreements referenced in the reversion provisions of NWP 
27.
    The pre-construction notification requirements are sufficient to 
ensure proper implementation of NWP 27. We have clarified the language 
in the NWP to reduce confusion. To avoid duplicative efforts by the 
government, pre-construction notification is not required for 
activities conducted under agreements or arrangements with other state 
or Federal government agencies. Pre-construction notification is 
required for all other activities. The reporting requirement will 
provide a mechanism whereby the Corps can review proposed activities 
conducted under other agency programs, to ensure that they comply with 
the terms and conditions of this NWP. We are modifying the reporting 
requirement to allow the submittal of project descriptions and plans, 
in lieu of

[[Page 11121]]

binding agreements executed between agencies and landowners.
    It would be inappropriate to require Corps approval of wetland 
enhancement, restoration, or establishment agreements executed and 
administered by other agencies. For those activities that require pre-
construction notification and will result in the loss of greater than 
\1/2\ acre of waters of the United States, agency coordination is 
required (see paragraph (d) of general condition 27).
    One commenter suggested modifying the reversion, reporting, and 
notification provisions by referencing actions documented by ``NRCS or 
USDA Technical Service Provider pursuant to NRCS Field Office Technical 
Guide Standards'' instead of ``NRCS regulations,'' since many of these 
wetland restoration, enhancement, and establishment activities are 
performed by technical service providers, who must be certified by NRCS 
and comply with the Field Office Technical Guide standards. We concur 
with this recommendation, and have made appropriate changes to the text 
of this NWP.
    One commenter said that replacing the word ``values'' with 
``services'' demeans the functions provided by a healthy ecosystem, 
unless the term ``functions'' is specifically retained. Another 
commenter remarked that replacing the word ``values'' with ``services'' 
is inconsistent with the common industry vernacular. They suggest using 
the word ``functions'' instead of ``services.''
    We are retaining the term ``functions'' in the text of this NWP, 
and are replacing the word ``values'' with ``services'' because 
ecosystem services provide a more objective measure of the importance 
of aquatic resource functions to human populations. The terms 
``functions'' and ``services'' are not equivalent, and therefore it 
would not be appropriate to replace the term ``services'' with 
``functions.'' Services are the benefits that humans derive from the 
functions performed by wetlands and other aquatic resources. The term 
``services'' is now being used in place of ``values'' in the ecological 
economics literature, because of the difficulty in assigning value to 
ecosystem services. As discussed in the September 26, 2006, Federal 
Register notice, values may relate to either monetary or non-monetary 
measures, but services can be described in physical terms that are 
easier to evaluate and address, where necessary, in NWP authorization 
letters and special permit conditions.
    Two commenters supported allowing the use of NWP 27 to authorize 
the construction of mitigation banks. One commenter requested 
clarification that this NWP could be used for wetland mitigation banks, 
and one commenter asked that the NWP apply to all mitigation banking 
projects, not just those with a signed mitigation banking agreement. 
Two commenters said that the construction of mitigation banks should 
not be authorized by NWP 27, but should be authorized by individual 
permits instead. One commenter stated that it would be acceptable to 
allow the use of NWP 27 for mitigation bank construction with a caveat 
that impacts associated with mitigation bank construction be deducted 
from any available credit the mitigation bank develops. One commenter 
requested that this NWP contain language stating that compensatory 
mitigation is required for activities authorized by NWP 27, but another 
commenter suggested that no compensatory mitigation should be required 
for impacts associated with construction of compensatory mitigation 
projects.
    This NWP can be used to authorize aquatic resource restoration, 
establishment, and enhancement activities necessary for the 
construction of mitigation banks. It is not necessary for the 
mitigation bank proponent to obtain a signed mitigation banking 
instrument prior to conducting the NWP 27 activity, but the mitigation 
bank proponent needs to understand that activities conducted prior to 
approval of a banking instrument may or may not be approved in any 
final instrument. The Corps thus recommends that construction of 
mitigation banks not begin until a final instrument has been signed. 
Requiring compensatory mitigation for losses of waters of the United 
States as a result of NWP 27 is at the discretion of the district 
engineer. The crediting of a mitigation bank will be determined by the 
district engineer during the approval process for the mitigation 
banking instrument. Any adverse impacts to aquatic resources resulting 
from construction of the bank would certainly be considered in that 
determination.
    Two commenters said that this NWP should require permittees to 
plant native species at the site. They said that the proposed language 
contains too much flexibility. One commenter said that NWP 27 should 
not authorize activities in waters inhabited by anadromous fish. One 
commenter stated that the U.S. Fish and Wildlife Service must concur 
with projects in which machinery must work in waters where endangered 
or threatened species are present. One commenter indicated that this 
NWP should authorize work in flowing waters where the activity will 
result in long-term stability and habitat benefits.
    It would be inappropriate to require permittees to plant only 
native species at the project site. Native plant materials may not be 
available for all of these projects, and it is difficult to define 
precisely what constitutes a ``native'' species. The activities 
authorized by this NWP are required to result in net increases in 
aquatic resource functions and services, which should benefit 
anadromous fish species. However, district engineers will review pre-
construction notifications and other reported activities to determine 
if the proposed aquatic habitat restoration, establishment, or 
enhancement activity would have more than minimal adverse effects on 
anadromous fish species, or require consultation under Section 7 of the 
Endangered Species Act. In addition, division and district engineers 
can develop regional conditions or case-specific conditions to ensure 
that potential impacts to anadromous fish are minimal, or exercise 
discretionary authority to require an individual permit for the work if 
impacts are expected to be more than minimal. Compliance with the other 
general conditions for the NWPs, including general condition 9, 
Management of Water Flows, is required, though general condition 9 
specifically allows activities that alter the pre-construction course, 
condition, capacity, and location of open waters if they benefit the 
aquatic environment.
    One commenter requested clarification of what constitutes a 
``small'' nesting island, and requested that the NWP state that 
approved water quality standards cannot be violated during construction 
of small nesting islands. Another commenter said that pre-construction 
notification should be required for the construction of small nesting 
islands in special aquatic sites. One commenter asked for a definition 
of the term ``enhancement activities.'' One commenter suggested 
requiring monitoring of stream restoration projects, with mandatory 
corrective actions for projects that are not successful.
    The district engineer has the discretion to determine what a 
``small nesting island'' is for the purposes of this NWP. Either pre-
construction notification or reporting is required for all activities 
authorized by this NWP, which will provide district engineers with 
opportunities to review all proposed activities, including the 
construction of small nesting islands, to determine those activities 
comply with the terms and conditions of the NWP.

[[Page 11122]]

The term ``enhancement'' is defined in the ``Definitions'' section of 
the NWPs. District engineers have the authority to require additional 
monitoring or corrective measures on a case-specific basis. We believe 
it is unnecessary to restate those authorities in the text of this NWP.
    One commenter said that this NWP should prohibit the widening or 
straightening of stream channels, the removal of gravel bars, the 
destruction of woody vegetation, and the in-stream use of bulldozing or 
heavy equipment. Another commenter stated that NWP 27 should require 
the use of natural stream channel design for in-stream work. Two 
commenters suggested that this NWP should not authorize the use of 
riprap or other armoring. One commenter suggested limiting the use of 
this NWP to restoration of a stream to its historic non-degraded 
condition to prevent the use of this NWP for construction of flood 
control projects.
    This NWP does not authorize stream channelization activities. It 
may be necessary to temporarily impact gravel bars or vegetation during 
the construction of stream restoration and enhancement activities. 
After the construction of the stream restoration or enhancement 
project, the stream channel should move water and sediment in a manner 
that will result in a channel morphology that provides habitat for a 
diverse community of species. That restored or enhanced habitat will 
include gravel bars, if the bed load carried by the stream includes a 
sufficient proportion of gravel. In addition riparian vegetation will 
normally be planted or allowed to grow back to replace the impacted 
riparian vegetation after construction activities have been completed. 
In-stream use of heavy equipment is not prohibited, because such 
equipment is usually necessary to conduct stream restoration and 
enhancement activities. In response to a pre-construction notification, 
or the review of the other Federal agency agreement, the district 
engineer will determine whether the proposed activity complies with the 
terms and conditions of the NWP, including the requirement for the 
activity to result in net increases in aquatic resource functions and 
services. It would be inappropriate to require, in the text of this 
NWP, specific design or construction methods, or prohibit the use of 
riprap or other armoring. Armoring using riprap or other materials can 
be a necessary component of beneficial aquatic habitat restoration, 
establishment, and enhancement projects.
    We believe that limiting the use of this NWP for the sole purpose 
of restoring streams to historic conditions would be overly 
restrictive, and would effectively prohibit its use for other 
beneficial restoration activities. Further, the pre-construction 
notification and reporting requirements for this NWP will help ensure 
that activities conducted under this NWP comply with the purposes and 
intent of the NWP, as well as its terms and condition.
    Two commenters said that the prohibition against stream 
channelization conflicts with general condition 9, Management of Water 
Flows, which allows stream restoration and relocation for some NWP 
activities. One commenter suggested that the Corps remove the 
channelization restriction from NWP 27 and expand the definition of 
``stream channelization'' to authorize activities beneficial to the 
aquatic environment.
    As noted above, general condition 9 allows the use of any NWP for 
projects that alter the pre-construction course, condition, capacity, 
and location of open waters if they benefit the aquatic environment. 
The removal of the stream channelization prohibition from NWP 27 could 
inadvertently allow projects to proceed under this NWP that have more 
than minimal adverse impacts on the aquatic environment. We also 
believe that it is unnecessary to modify the definition of stream 
channelization as suggested because the definition provides an accurate 
and concise description of what constitutes stream channelization.
    One commenter recommended limiting the use of NWP 27 to projects 
conducted by or sponsored by state or federal agencies. One commenter 
recommended removing the reference to prior converted croplands.
    We disagree that use of this NWP should be limited to activities 
conducted or sponsored by state or federal agencies, however, projects 
not conducted pursuant to authorities of other agencies do require a 
pre-construction notification. The reference to prior converted 
croplands in the reversion provision is necessary, since prior 
converted croplands are not considered to be waters of the United 
States (see 33 CFR 328.3(a)(8)).
    One commenter suggested including a definition for shellfish 
seeding in the NWP. One commenter questioned whether the Corps has 
regulatory jurisdiction over shellfish aquaculture and restoration 
activities. Another commenter requested clarification whether pre-
construction notification is required for shellfish seeding authorized 
by this NWP. One commenter recommended removing the pre-construction 
notification requirement for shellfish activities that have the 
approval of other government agencies with resource management 
responsibilities. Two commenters said that state natural resource 
agencies should be exempted from the pre-construction notification 
requirements if the shellfish seeding activity is done over an 
unvegetated bottom, since those activities are already addressed by 
other state and Federal permit processes. Two other commenters 
expressed concern that the proposed changes to the NWP would adversely 
affect community-based shellfish restoration efforts, including 
locally-based oyster restoration programs. They said that the pre-
construction notification requirements, or requiring any permit for 
shellfish restoration, would be overly burdensome and would adversely 
affect community-based programs that are already operating with 
volunteer staffs, minimal budgets, and limited resources.
    We are providing a definition of ``shellfish seeding'' in the 
``Definitions'' section of the NWPs. This definition was derived from 
the definition provided in the preamble discussion for proposed NWP D, 
Commercial Shellfish Aquaculture Activities (see 71 FR 56275). 
Shellfish aquaculture and restoration activities require Department of 
the Army authorization, if they involve discharges of dredged or fill 
material into waters of the United States and/or structures or work in 
navigable waters of the United States. On-going commercial shellfish 
aquaculture activities may be authorized by NWP 48 and shellfish 
restoration activities may be authorized by NWP 27. New commercial 
shellfish aquiculture activities may be authorized by regional general 
permits or individual permits. The pre-construction notification 
requirement is necessary for shellfish habitat restoration activities, 
except those conducted under one of the other listed authorities, to 
ensure that those projects comply with the terms and conditions of this 
NWP and do not cause more than minimal adverse effects. However, the 
Corps does not believe that the PCN requirement is overly burdensome 
and it should not limit the ability of community-based programs to 
conduct such activities.
    One commenter opposed modifying this NWP to authorize shellfish 
restoration activities because they believe that these projects can 
have more than minimal impact on benthic habitat. One commenter said 
that shellfish seeding should not be authorized by this NWP. Another

[[Page 11123]]

commenter suggested that fill placement for shellfish seeding or 
shellfish bed preparation activities should not qualify for any NWP and 
should only be evaluated under individual permit processes. Several 
commenters recommended that shellfish seeding should be authorized by 
this NWP. A number of commenters stated that shellfish seeding can be 
used to protect or restore valuable aquatic habitats since construction 
of oyster reefs has been used to attenuate wave energy as part of 
coastal restoration strategies.
    The restoration of oyster habitat, as well as the habitat of other 
shellfish species, usually provides substantial benefits to the overall 
aquatic environment. Shellfish help improve water quality and other 
habitat characteristics of estuarine and marine waters. Shellfish 
seeding is often a necessary component of restoration activities, when 
the objective is to increase populations of shellfish. District 
engineers will review pre-construction notifications or agreements with 
other agencies to ensure that these activities result in minimal 
individual and cumulative effects on the aquatic environment and other 
public interest factors. In response to a pre-construction 
notification, the district engineer can add special conditions to the 
NWP authorization or exercise discretionary authority and require an 
individual permit.
    One commenter remarked that shellfish seeding practices could be 
considered an aquaculture activity, and said that the requirements of 
NWP 27 could be a significant barrier to aquaculture development. 
Another commenter indicated that projects solely associated with 
shellfish restoration could be authorized by NWP 27, but suggested that 
it would be more appropriate to authorize such activities under the 
proposed NWP for commercial shellfish aquaculture activities. One 
commenter expressed concern that NWP 27 may overlap with NWP 48. One 
commenter stated that some oyster restoration and enhancement is done 
by commercial shellfishing operations that harvest only wild oysters. 
In some cases, shellfish husbandry or restoration is required by other 
regulatory agencies, and the commenter stated that neither NWP 27 nor 
NWP 48 allow this activity. One commenter asked if each oyster bed 
restoration would require a separate permit, or could an entity apply 
for a single permit to cover all of their shellfish restoration 
projects. They recommended establishing a single permit that any state 
natural resource agency could use at any time to eliminate the need for 
those agencies to obtain separate permits for numerous individual 
projects.
    This NWP does not authorize commercial aquaculture activities. It 
authorizes shellfish habitat restoration activities, including 
shellfish seeding, that are conducted to restore populations of 
shellfish in navigable waters of the United States. Although these 
restored shellfish populations may be harvested at a later time by 
licensed fisherman, the objective of the activities authorized by this 
NWP must be to restore populations of shellfish in navigable waters of 
the United States. This NWP does not authorize structures or work, such 
as nets and anchors, that are used to reduce or eliminate predation of 
shellfish growing in these restored habitats. On-going commercial 
aquaculture activities may be authorized by NWP 48, regional general 
permits, or individual permits. New commercial aquaculture activities 
may be authorized by regional general permits or individual permits. 
This NWP authorizes single and complete shellfish habitat restoration 
activities. Regional general permits or individual permits may be 
issued by district engineers to authorize shellfish restoration 
programs.
    This NWP is reissued, with the modifications discussed above.
    NWP 28. Modifications of Existing Marinas. No changes were proposed 
for this NWP. One commenter said that modifications in special aquatic 
sites, such as vegetated shallows or coral reefs, should require pre-
construction notification. This commenter also requested clarification 
whether this NWP authorizes pile driving, and recommended requiring 
pre-construction notification for such activities.
    This NWP authorizes the installation of piles for the 
reconfiguration of marinas. The reconfiguration of existing marinas 
generally results in minimal individual and cumulative adverse effects, 
since these activities are limited to areas currently used for marinas. 
Therefore, it is unnecessary to require pre-construction notification 
for these activities. However, division engineers can regionally 
condition this NWP to require pre-construction notification for 
activities in certain areas.
    This NWP is reissued as proposed.
    NWP 29. Residential Developments. We proposed to modify this NWP by 
incorporating the residential development provisions of NWP 39, so that 
there would be one NWP to authorize single unit and multiple unit 
residential developments, including residential subdivisions. We also 
proposed to reduce the scope of applicable waters for this NWP, by 
prohibiting its use to authorize discharges of dredged or fill material 
into non-tidal wetlands adjacent to tidal waters. In addition, we 
proposed to require pre-construction notification for all activities.
    One commenter requested that a definition of ``residential 
property'' be provided. This commenter also said that this NWP should 
include a provision prohibiting its use with NWP 39 to authorize mixed 
use developments. Two commenters objected to including multiple-unit 
residential developments in NWP 29 because they felt it is inconsistent 
with the original intent of NWP 29. Several commenters stated that 
including multiple-unit residential development would lead to problems 
with water quality certifications or local government decisions. Two 
commenters said that single-family and multi-unit developments are not 
similar in nature while another questioned the need and the rational 
for the proposed change.
    This NWP utilizes the commonly accepted definition of what 
constitutes a residential property. We do not agree that there should 
be a prohibition against combining NWPs 29 and 39 to authorize mixed 
use developments, because the terms and conditions of those NWPs, 
including the pre-construction notification requirements and general 
condition 24, Use of Multiple Nationwide Permits, will help ensure that 
those activities will result in minimal individual and cumulative 
adverse effects on the aquatic environment and other public interest 
review factors. As discussed in the preamble of the September 26, 2006, 
Federal Register notice, the proposed changes effectively eliminate the 
previous NWP 29. Previously, single family residential projects could 
choose between NWPs 29 and 39. NWP 39 had a higher acreage limit, but 
NWP 29 could allowed activities in wetlands adjacent to tidal waters. 
We have determined that that all residential projects using an NWP, 
whether single-family or multi-family, should face the same set of 
requirements. In particular, we have determined that residential 
projects in wetlands adjacent to tidal waters should not be authorized 
through an NWP, so we are combining all residential development 
activities in NWP 29 and eliminating its use in wetlands adjacent to 
tidal waters. We believe the \1/2\ acre limit previously included in 
NWP 39 will ensure that projects undertaken only in non-tidal waters 
and their adjacent wetlands will not have more than minimal adverse 
effects. Limits for multi-family residential projects have not changed,

[[Page 11124]]

these activities have merely been shifted into NWP 29. States concerned 
with multiple unit residential developments may add stipulations to 
their water quality certifications that differentiate between single-
family and multi-unit developments. Local governments can address their 
concerns over residential development through their planning and zoning 
processes. Also, the Corps is expanding the pre-construction 
notification requirement to include all projects authorized under this 
NWP, to enhance our ability to identify projects that may have more 
than minimal adverse effects.
    One commenter suggested we add ``single-unit residential 
subdivision'' to the list of authorized activates in the first 
sentence.
    We have added the phrase ``residential subdivision'' to the list of 
activities authorized by this NWP. This NWP authorizes residential 
subdivisions with multiple single-family units or multiple-family 
units.
    Several commenters objected to raising the acreage limit from \1/4\ 
acre to \1/2\ acre. One commenter said that the \1/2\ acre limit will 
result in substantial cumulative losses of waters of the United States. 
Two comments recommended acreage limits of one or two acres. One 
commenter asked why the \1/2\ acre limit is not for associated multi-
unit developments when it is expressed as the limit for single-family 
residences.
    As noted above, the effective acreage limit for residential 
projects has not been raised. We have simply removed the option of 
using an NWP with a \1/4\ acre threshold to authorize single-family 
projects in wetlands adjacent to tidal waters. Through the review of 
pre-construction notifications, district engineers will monitor the use 
of this NWP so that more than minimal cumulative adverse effects do not 
occur. We disagree that increasing the acreage limit to one to two 
acres would result in activities that have minimal impacts on the 
aquatic environment. The \1/2\ acre limit applies to any type of 
residential subdivision (single-family, multi-family, or a combination 
of both), as it did previously when these projects were authorized by 
NWP 39.
    Some commenters objected to requiring pre-construction notification 
for all activities, and suggested changing the pre-construction 
notification threshold to \1/10\ acre. Three commenters proposed a \1/
10\ acre pre-construction notification threshold for single-family 
developments. Three commenters supported the proposed pre-construction 
notification threshold. One commenter suggested establishing a 
graduated pre-construction notification threshold based on the size of 
the overall development.
    We are retaining the requirement for pre-construction notification 
for all activities authorized by this NWP. Although this will result in 
an increase in the number of pre-construction notifications submitted 
to district engineers, we do not believe that it will be a substantial 
increase, since many permittees proposing to construct residential 
developments in the past have submitted verification requests for NWP 
39 authorization even when not required to do so. The NWP 29 issued in 
2002 require pre-construction notification for all proposed single 
family homes. The pre-construction notification threshold will also 
help ensure compliance with general condition 17, Endangered Species, 
and general condition 18, Historic Properties. A graduated pre-
construction notification requirement would be unnecessarily complex 
and would not provide as much assurance that only activities with no 
more than minimal adverse effects are authorized.
    Many commenters discussed the 300 linear foot limit for stream bed 
impacts. Those comments are discussed in a separate section of the 
preamble. We are retaining the 300 linear foot limit for stream bed 
impacts, as well as the ability for district engineers to provide 
written waivers of the 300 linear foot limit for losses of intermittent 
and ephemeral stream beds.
    Several commenters said that this NWP should retain the requirement 
to maintain sufficient buffers adjacent to all open water bodies, such 
as streams. Some commenters stated that a minimum buffer width should 
be required. One commenter supported the removal of the buffer 
requirement and addressing the need for riparian areas through general 
condition 20, Mitigation.
    The establishment and maintenance of riparian areas next to streams 
and other open waters will be required by district engineers as 
compensatory mitigation where necessary to ensure that the authorized 
work results in minimal individual and cumulative adverse effects on 
the aquatic environment. Although the NWP 29 issued in 2002 contained a 
requirement to establish sufficient vegetated buffers, the counterpart 
language in the 2002 NWP 39 reflected the use of vegetated buffers as 
components of the compensatory mitigation plan for the NWP 39 activity, 
if there were streams or other open waters on the project site. 
District engineers will make determinations regarding the 
appropriateness and practicability of requiring riparian areas, as well 
as their width, in the implementation of general condition 20, 
Mitigation.
    Three commenters said that residential developments are not water 
dependent activities, and therefore, under the Section 404(b)(1) 
Guidelines, an NWP should not be issued unless all practicable 
alternatives have been considered. Some commenters objected to 
authorizing attendant features by NWP 29, because they may not be water 
dependent or there may be secondary impacts associated with the 
development.
    An activity that is not water dependent may still be authorized by 
NWP as long as an appropriate Section 404(b)(1) Guidelines analysis is 
conducted when the NWP is issued. The decision documents for all NWPs, 
including this NWP, that authorize discharges under Section 404 of the 
Clean Water Act include a Section 404(b)(1) Guidelines analysis.
    Two commenters objected to including septic fields as attendant 
features and three commenters objected to including sports fields and 
golf courses as attendant features. One commenter requested a 
definition of the term ``integral part'' to reduce the potential for 
authorizing golf courses that are not directly associated with the 
residential development. One commenter objected to the use of the NWP 
for large subdivisions, because of potential impacts due to sprawl, 
traffic, and degradation of water quality.
    Septic fields are often necessary attendant features for 
residences, and should be authorized where part of a single and 
complete project. Sports fields and golf courses may also be integral 
attendant features of residential developments. District engineers will 
determine, in response to pre-construction notifications, whether golf 
courses are integral parts of the residential development. Impacts of 
large subdivisions will be considered during the pre-construction 
notification review process. If such projects would have more than 
minimal adverse effects, these will be addressed through project-
specific special conditions or by requiring an individual permit.
    One commenter requested that we define ``subdivision'' as an ``area 
that involves all residences that share the attendant features.'' One 
commenter urged that phased developments be prohibited since they can 
result in impacts to waters that otherwise can be avoided with 
comprehensive planning and permitting.
    Defining the term ``subdivision'' is unnecessary as there is little 
confusion

[[Page 11125]]

surrounding the term. Phased developments can be authorized by the NWP, 
provided that each phase is a single and complete project and has 
independent utility. When reviewing pre-construction notifications, 
district engineers will take into account individual and cumulative 
impacts of phased developments. We strongly support comprehensive 
planning efforts undertaken by local governments as a means of reducing 
impacts to the aquatic environment. Where the cumulative effects of 
phased projects would be more than minimal, these will be addressed 
through project-specific special conditions or by requiring an 
individual permit.
    Four commenters requested that the NWP authorize projects in non-
tidal wetlands adjacent to tidal waters, while two comments supported 
the proposal to prohibit the use of the NWP in those areas. One 
commenter requested a definition of the term ``adjacent.'' Two 
commenters objected to removal of language concerning minimization of 
on-site and off-site impacts, such as avoiding flooding of adjacent 
lands.
    Limiting the use of this NWP to non-tidal waters of the United 
States, and prohibiting its use in non-tidal wetlands adjacent to tidal 
waters is necessary to ensure that this NWP authorizes only those 
activities with minimal individual and cumulative adverse effects on 
the aquatic environment. Development along coastal waters is a growing 
concern with significant potential to cause more than minimal adverse 
effects, particularly cumulatively. Such projects can be authorized by 
an individual permit following appropriate environmental review. The 
term ``adjacency'' is defined at 33 CFR 328.3(c). For the NWPs, 
including NWP 29, requirements to avoid and minimize impacts to waters 
of the United States are addressed through general condition 20, 
Mitigation.
    District engineers will review pre-construction notifications to 
ensure that all practicable on-site avoidance and minimization has been 
accomplished. In response to a pre-construction notification, the 
district engineer may require compensatory mitigation to ensure that 
the authorized activity results in minimal adverse environmental 
effects (see 33 CFR 330.1(e)(3)).
    One commenter said that NWP 29 should not be issued because it 
results in more than minimal adverse impacts particularly when 
salmonids are present. One commenter stated that this NWP should not 
authorize impoundments. One commenter said that there should be an 
exemption for residential developments in coastal areas in the eastern 
United States.
    Potential impacts to salmon species are more appropriately 
addressed through regional conditions. Division engineers may 
regionally condition this NWP to restrict or prohibit its use in waters 
inhabited by salmonids. Impoundments may be authorized as attendant 
features, after reviewing the pre-construction notification. Section 
404 permits are required for discharges of dredged or fill material 
into waters of the United States to construct residential developments. 
Such activities do not qualify for exemptions under Section 404(f)(1) 
of the Clean Water Act.
    This NWP is reissued with the modifications discussed above.
    NWP 30. Moist Soil Management for Wildlife. We proposed to modify 
this NWP to allow any landowner to use this NWP to authorize discharges 
of dredged or fill material into non-tidal waters of the United States 
for the purpose of managing wildlife habitat and feeding areas.
    Some commenters supported the proposed changes to this NWP, since 
it will facilitate the production of large amounts of wetland/wildlife 
habitat and conserve the Nation's native wildlife populations. However, 
other commenters expressed concern about the use of this NWP by private 
landowners, because they may be creating impoundments to increase 
wildlife habitat. One commenter recommended requiring interagency 
coordination to provide guidance to landowners and to help ensure land 
cover types are not detrimentally converted to other land cover types. 
One commenter said that expanding the NWP to apply to all landowners 
would result in more than minimal cumulative adverse effects.
    We believe that it is appropriate to expand the use of this NWP to 
private landowners that have an interest in attracting and supporting 
various species of wildlife on their land. This NWP does not authorize 
the construction of impoundments, because it does not authorize new 
roads, dikes, and water control structures. We believe that it is not 
necessary to require interagency coordination for these activities 
because only activities that do not result in a net loss of aquatic 
resource functions and services are authorized. The terms and 
conditions and the ability of division 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.
    One commenter recommended imposing a \1/2\ acre limit on activities 
conducted by private landowners. One commenter recommended adding pre-
construction notification requirements to this NWP, so that district 
engineers can review proposed activities to ensure that they comply 
with the terms and conditions of the NWP. One commenter indicated that 
this NWP should authorize moist soil management activities for native 
vegetation that are not necessarily for wildlife use.
    Since this NWP authorizes only on-going wildlife management 
activities involving moist soil management, we do not believe it is 
necessary to impose an acreage limit or require pre-construction 
notification for these activities. Division engineers can regionally 
condition this NWP to require pre-construction notification, if there 
are concerns for the aquatic environment or other public interest 
review factors that may need to be addressed through case-specific 
review of these activities. Moist soil management activities conducted 
primarily for growing native plants may be authorized by other NWPs, 
regional general permits, or individual permits. Restoration of wetland 
meadows, forested wetlands, and other native plant communities may also 
be authorized by NWP 27.
    One commenter suggested changing the title of this NWP to 
``Maintenance of Existing Moist Soil Management Areas for Wildlife.'' 
One commenter recommended modifying the ``Note'' at the end of this NWP 
to acknowledge that maintenance may be exempt under Section 404(f) of 
the Clean Water Act.
    We do not agree that it is necessary to change the title of this 
NWP, because the text of the NWP clearly states that is authorizes only 
soil management for on-going, site-specific, wildlife management 
activities. We have modified the ``Note'' to include a statement 
concerning the section 404(f) exemption.
    This NWP is reissued with the modification discussed above.
    NWP 31. Maintenance of Existing Flood Control Facilities. We 
proposed to remove the last sentence of the first paragraph of this 
NWP. In addition, we proposed to add levees to the list of features 
that can be maintained through the authorization provided by this NWP.
    A few commenters stated support for the addition of levees to the 
list of features that can be maintained with authorization under this 
NWP. In addition, one commenter recommended that the Corps exempt or 
develop a streamlined NWP for federally

[[Page 11126]]

constructed or funded levees where maintenance responsibilities for 
those levees have reverted to a local agency.
    We believe that the NWP program is already a streamlined permit 
process and discharges associated with federally constructed and funded 
flood control projects which have reverted to a local agency should 
still be subject to the requirements of this NWP, including the 
establishment of a maintenance baseline. At this time, we believe it is 
necessary to conduct a site specific verification through the pre-
construction notification process to ensure that the adverse effects of 
the project are no more than minimal. The Corps has no authority to 
exempt discharges of dredged or fill material that occur in conjunction 
with the maintenance of the facility, or to waive any requirement for 
necessary mitigation. The inclusion of levees in this NWP does not 
preclude maintenance of levees that is allowed under other NWP 
authorizations, such as NWP 3.
    One commenter stated that, as flood control projects constructed by 
the Corps and transferred to a non-federal sponsor have a Corps-
developed Operations and Maintenance (O&M) manual, and the sponsor is 
obligated to perform maintenance according to the O&M manual, the 
project's as-built drawings and O&M manual should constitute the 
maintenance baseline. Therefore, no maintenance baseline submittal 
should be required.
    The intent of this NWP is to require the submittal of a maintenance 
baseline for all projects requesting authorization by this NWP. A non-
federal sponsor can submit the as-built drawings and O&M manual from a 
federally-constructed or funded flood control project. In any case the 
maintenance baseline must be approved by the district engineer.
    Another commenter suggested that the requirement to submit best 
management practices (BMPs) with the maintenance baseline documentation 
be eliminated, as BMPs are addressed by several general conditions. 
This commenter also requested that we clarify the important exception 
that applies to this NWP in regard to the general condition 27 
requirement that the district engineer must approve any compensatory 
mitigation proposal before the permittee commences work. The Corps 
disagrees that the requirement to submit BMPs is adequately addressed 
by general conditions. We believe that inclusion of the BMPs in the 
documentation is necessary so that the Corps can ensure that the 
impacts associated with the activity will be no more than minimal. In 
addition, the inclusion of certain BMPs may reduce the impacts to the 
aquatic environment and, as a result, the required one-time mitigation 
associated with establishing the baseline. The BMPs submitted with the 
maintenance baseline documentation do not preclude the Corps from 
requiring additional BMPs that might be necessary to ensure that the 
maintenance activity results in minimal adverse effects on the aquatic 
environment. Regarding mitigation approval, we believe the proposed 
text of this NWP clearly states that for this NWP, the district 
engineer will not delay necessary maintenance so long as the district 
engineer and permittee establish a schedule for identification, 
approval, development, construction and completion of any such required 
mitigation. It also states that work can begin before approval of the 
maintenance baseline in emergency situations.
    Two commenters opposed adding levees to the list of features that 
can be maintained through authorization by this NWP. One of these 
commenters believed that the change constitutes more than a wording 
change, because levees are large scale structures with impacts that 
require a thorough assessment. The other commenter stated that levees 
disrupt natural processes important to floodplains and habitat. They 
also noted that the presence of levees on a stream does not transform 
the stream into a flood control facility.
    While we agree that the construction of levees may require a 
thorough assessment of impacts on the watershed, the maintenance of 
existing levees is an activity that is appropriate for inclusion in 
this NWP since levees are often integral parts of flood control 
facilities. This NWP does not authorize the construction of levees. We 
believe that the limitations and general conditions associated with the 
NWP will ensure that authorized projects will have no more than minimal 
adverse effects. The requirement for an approved baseline and the 
ability to require mitigation provides a safeguard for valuable 
habitat. The Corps agrees that levees do not make a stream a flood 
control facility. However, levees are a flood control facility and this 
NWP should allow maintenance of the levees. In order for flood control 
activities to occur in the stream, they would have to be included in 
the maintenance baseline, as described in the text of the NWP.
    One commenter observed that the text of this NWP uses the phrase 
``significantly reduced capacity'' when discussing abandonment. They 
stated that Regulatory Guidance Letter 87-2 discusses the ramification 
of using the word ``significant'' in Corps documentation and suggested 
that it be changed. Another commenter said that this NWP should not 
authorize actions that need to be taken because of neglect.
    We believe that the use of the word ``significantly'' in this NWP 
is not contrary to the Regulatory Guidance Letter because it describes 
a level of reduction in flood capacity and does not relate to any 
determination of environmental impacts. If a flood control facility can 
be considered abandoned because of neglect, then the NWP would not 
authorize the work needed to reconstruct that facility.
    Another commenter requested that the fill associated with beaver 
dam control and maintenance be added to the list of features authorized 
by this NWP. While the Corps agrees that the maintenance of beaver dam 
control and maintenance structures may be authorized by this NWP, this 
NWP does not authorize fills associated with the construction of new 
structures.
    Two commenters opposed removing the last sentence in the first 
paragraph of this NWP (regarding types of maintenance activities that 
do not require section 404 permits) because they believe that the 
language clarified that vegetation maintenance does not require a 
section 404 permit. The Corps believes that this sentence is 
unnecessary, since Section 404 permits are only required for discharges 
of dredged or fill material, and, per the regulations at 33 CFR 
323.2(d)(3)(ii), vegetation removal above the ground, that does not 
disturb the root system or include redeposition of excavated soil 
material, is not a discharge of dredged or fill material.
    One commenter stated that many existing flood control facilities 
may not have met the criterion (i.e., it was previously permitted by 
the Corps, it did not require a permit at the time it was constructed, 
or it was constructed by the Corps and transferred to a non-federal 
sponsor), or the permittee cannot provide documentation that the 
criterion was met. Another commenter requested that this NWP authorize 
the maintenance of projects that were built by others but accepted as 
part of a federal flood control project or those that are authorized 
under state or local flood control laws. Both commenters requested that 
the Corps modify or eliminate the criterion listed in the first 
sentence of this paragraph and authorize maintenance of any flood 
control facility after approving the maintenance baseline and reviewing 
the activity through the pre-construction notification process. In 
addition, one commenter stated that the Corps should

[[Page 11127]]

not consider a flood control facility to be abandoned because 
vegetation has become established in the facility. That commenter also 
said that the NWP should compel agencies to perform maintenance more 
frequently by requiring mitigation for temporal losses in vegetation or 
habitat. Another commenter stated that agencies should be encouraged to 
reduce the frequency of maintenance where feasible by approving 
maintenance baselines that allow for less frequent maintenance. One 
commenter said that this NWP should also authorize temporary 
stockpiling as authorized by NWP 12.
    The criteria in the first sentence of this NWP cover all properly 
authorized flood control facilities. Unless a flood control facility 
was constructed as a result of a Corps Civil Works project, it would 
have required a Corps permit unless it was constructed in a manner that 
did not require Corps authorization or it was exempt from permit 
requirements. If it should have had Corps authorization but did not, we 
do not think it is appropriate to authorize maintenance under this NWP. 
The Corps will not generally require documentation of compliance with 
these criteria, unless there is reason to believe that these criteria 
are not met.
    We believe that the current text accurately describes how a site 
should be determined to be abandoned. The presence of vegetation does 
not necessarily indicate that a flood control facility has been 
abandoned. However, a site may be determined to be abandoned when 
vegetation has substantially diminished the capacity of the channel. We 
do not believe it is necessary to require permittees to conduct 
maintenance more frequently, to prevent the establishment of vegetation 
within the flood control facility. The one-time mitigation requirement 
is sufficient to offset the losses of aquatic resource functions and 
services that will occur as a result of keeping the facility within the 
maintenance baseline. 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. The frequency of maintenance will depend on 
the characteristics of the flood control facility and the surrounding 
area. Those flood control facilities that were constructed in more 
dynamic environments generally require more frequent maintenance. 
Because of the various environmental factors affecting the need for 
maintenance and the physical parameters that apply to an existing 
facility, it would be difficult to establish a maintenance baseline 
that lessens the frequency of maintenance. We do not believe it would 
be appropriate to modify this NWP to authorize temporary stockpiling of 
sediments and other materials in waters of the United States. Sediments 
and other materials removed during the maintenance of flood control 
facilities must be deposited at non-jurisdictional areas, unless the 
district engineer authorizes temporary stockpiling through a separate 
Department of the Army authorization.
    The previous commenter also remarked that the provisions for 
emergency situations still require that the permittee submit a pre-
construction notification and wait for Corps approval before conducting 
any emergency work within the flood control facility. They stated that 
this requirement could compromise public health and safety, as it 
typically takes one or two days, minimum, to obtain the necessary 
approval to proceed. They requested deferral of the pre-construction 
notification requirement until after the emergency maintenance 
activities have been conducted. We believe that NWP 31, as proposed, is 
a reasonable and prudent way to minimize the burdens imposed on 
permittees, within the constraints of applicable law and regulation. It 
is not appropriate to defer the submittal of a pre-construction 
notification, due to the fact that the Corps must determine if 
authorization by this NWP is applicable. The Corps has developed 
specific procedures for dealing with emergency situations. Entities 
responsible for maintaining flood control facilities should contact 
their local Corps office well in advance of the rainy season, to 
familiarize themselves with the available emergency processing 
procedures for that district.
    One commenter suggested that activities authorized by this NWP 
instead be authorized by NWP 3. We believe that the specific 
requirements of this NWP are necessary to ensure that impacts to the 
aquatic environment are minimal. Incorporating these requirements into 
NWP 3 would be confusing and make implementation of that NWP more 
difficult.
    Another commenter asserted that this NWP has the potential for more 
than minimal impacts, based on the fact that there are no limits on 
acreage or volume of discharges. The commenter also commented that one-
time mitigation does not adequately ensure that aquatic functions will 
be restored, and that limiting mitigation to one-time will result in 
more than minimal adverse impacts if mature wildlife habitat is 
destroyed repeatedly. The Corps believes that activities authorized by 
NWP 31 that comply with the maintenance baseline provision do not 
result in more than minimal impacts, even without acreage limitations. 
The establishment of the maintenance baseline, in effect, identifies 
the location and physical dimensions of waters of the United States 
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. The 
intent of the one-time mitigation is to replace the aquatic functions 
that may be lost each time maintenance is performed. Once the 
mitigation is in place, any aquatic functions that develop between 
maintenance activities, are over and above the level of function that 
existed before the initial maintenance occurred. For areas or projects 
with specific issues, the division and district engineer may choose to 
add regional conditions or special conditions to the NWP authorization.
    One commenter made reference to a particular project containing 
salmonids and stated that an NWP should not have been issued for that 
particular project. The commenter objected to this NWP authorizing the 
continued maintenance of the project because the salmonid habitat may 
have partially recovered and would be repeatedly impacted. While we 
agree that this can occur, we do not agree that requiring mitigation 
over and over for what is, in effect, the same impact is appropriate. 
We believe that the limitations and general conditions included within 
this NWP will ensure that it will result in no more than minimal 
effects. The requirement for an approved baseline and the ability to 
require mitigation provides a way to safeguard valuable habitat.
    This NWP is reissued as proposed.
    NWP 32. Completed Enforcement Actions. We proposed to eliminate the 
phrase ``For either (i), (ii), or (iii) above,'' from the last 
paragraph of this NWP. In addition, we proposed to remove the phrase 
``or fails to complete the work by the specified completion date.''
    Two commenters suggested that the five-acre non-tidal water or one-
acre tidal water limits be eliminated. They believe that if the NWP 
applied to enforcement actions with greater impacts, then the 
mitigation could be completed earlier which would reduce

[[Page 11128]]

temporal losses. One commenter said that the NWP should have a limit of 
two acres for wetland impacts, since the permit process, including the 
opportunity for public comment, has been avoided. One commenter stated 
that individual permits should be required for activities undertaken as 
a result of an enforcement action. They believe that greater oversight 
is appropriate for a party that broke the law.
    We believe that if the unauthorized activity impacts more than five 
acres of non-tidal waters or one acre of tidal waters that it may be 
more appropriate to either require an individual permit review or to 
pursue a judicial settlement or judgment. In cases where judicial 
settlements are pursued, there is usually a comprehensive evaluation of 
the environmental damage associated with the unauthorized work and 
substantial mitigation and penalties. In addition, we recognize that 
the limits for this NWP exceed the limits for the majority of the NWPs. 
We believe however, that the requirement that non-judicial settlements 
provide for environmental benefits equal to or greater than the 
environmental harm caused by the unauthorized activity ensures that the 
net impacts caused by the unauthorized work are no more than minimal. 
The thresholds limit the maximum size of the impact area and, wherever 
appropriate and practicable, restoration of this area will be required 
to undo the impacts. In any case, full compensation for the impacts in 
some form is required.
    One commenter requested we delete the sentence stating that the NWP 
does not apply to any activities occurring after the date of the court 
decision, decree or agreement that are not for the purpose of 
mitigation, restoration or environmental benefit. The commenter 
believes that this provision limits the ability of the Corps to enter 
into a settlement agreement. Another commenter requested that language 
be added to the NWP to expressly prohibit its use for any future 
impacts related to the existing project that is under the enforcement 
action.
    The Corps believes that the NWP as proposed is appropriate. 
Proposed additional project impacts (e.g., impacts necessary to 
complete the project that was initiated without a permit) must be 
evaluated under other NWPs, regional general permits, or individual 
permit review processes. This permit is intended only to authorize past 
discharges along with the required compensatory activities, not to 
substitute for applicable permit requirements for future activities.
    One commenter remarked that the activities authorized by this NWP 
do not correlate with the programmatic general permits in the 
commenter's state.
    The Corps acknowledges this comment, however, we believe it is 
simply a statement and does not warrant any changes to the proposed 
NWP.
    This NWP is reissued as proposed.
    NWP 33. Temporary Construction, Access, and Dewatering. We proposed 
to divide the first sentence of this NWP into two sentences, to clarify 
that the NWP can be used to authorize temporary activities associated 
with both construction projects that do not otherwise require permits 
from the Corps or the U.S. Coast Guard, and those that do require and 
have obtained such permits. We also proposed to move the requirement 
for a restoration plan from the ``pre-construction notification'' 
general condition (general condition 13 of the 2002 NWPs) to the 
``Notification'' paragraph of this NWP, because it only applies to this 
NWP. We inadvertently used the term ``mitigation plan'' in the 
``Notification'' paragraph in the proposed NWP, and have changed it to 
``restoration plan'' in the final permit. The pre-construction 
notification must include a restoration plan showing how all temporary 
fills and structures will be removed and the area will be restored to 
pre-project conditions. The restoration plan should also describe 
reasonable measures for avoidance and minimization of adverse effects 
to aquatic resources. Please note that this restoration plan is 
different from the mitigation requirements in general condition 20 for 
permanent losses of waters of the United States. We proposed to remove 
the sentence that states that the district engineer will add special 
conditions to ensure minimal adverse effects, since the addition of 
special conditions where necessary to ensure minimal adverse effects is 
a condition of all NWPs.
    One commenter suggested that NWP 33 should also be used to 
authorize temporary stockpiles and temporary fills that are related to 
construction activities.
    The Corps agrees that this work could potentially be authorized 
under NWP 33 as long as all other conditions are met and the work is 
the minimum necessary to complete the project. However, the districts 
have discretion in determining if the work is the minimum necessary.
    One commenter expressed concern about the last statement in this 
NWP, which requires a Section 10 permit for structures left in place. 
The commenter indicated this statement is contradictory since any 
structures left in place would be permanent and would not qualify for 
the NWP 33 anyway. The commenter recommends removing or clarifying this 
statement.
    This statement is intended to reiterate that if any structures are 
left in place, separate authorization is required, however we have 
broadened it to cover all situations where structures left in place 
require separate Section 10 authorization.
    Another commenter generally supported NWP 33 as proposed, but 
recommended changing the word ``conditions'' to ``contours'' in the 
sentence stating ``Following completion of construction, temporary fill 
must be entirely removed to upland areas, dredged material must be 
returned to its original location, and the affected areas must be 
restored to the pre-project conditions.'' Several commenters indicated 
that requiring the area to be restored to pre-project conditions may 
not be beneficial when the pre-project conditions were degraded. One 
commenter suggested we require the affected areas be restored to the 
pre-project conditions or to a condition with greater than pre-project 
habitat functions and services. Another commenter suggested saying that 
the area should be returned to appropriate pre-existing stable 
elevations and slope and restored with vegetation species matching the 
adjacent undisturbed areas, but consistent with the purposes of the 
associated project for which the temporary construction is necessary.
    We agree that returning a degraded area to better than pre-existing 
conditions is beneficial and we support this concept. We will not 
require the area to be restored to create better habitat functions and 
services, but we are not precluding this work from occurring. Removal 
of temporary fills is also addressed in general condition 13 and the 
language in NWP 33 has been slightly modified to match this general 
condition. Any fill left in place will require separate authorization.
    One commenter questioned whether the restoration plan for temporary 
and permanent impacts could be included in a single plan, with any 
proposed mitigation, and whether the mitigation plan must be submitted 
concurrently with the pre-construction notification. Another commenter 
opposed the provision requiring that a restoration plan be included in 
the pre-construction notification that shows how the area will be 
restored to pre-project conditions. The commenter was concerned that a 
restoration plan is not always developed up front because a contractor 
is often not selected until after a permit has been issued.

[[Page 11129]]

    The pre-construction notification must contain a restoration plan 
showing how all temporary fills and structures will be removed and the 
areas restored to pre-project conditions. The restoration plan must, at 
a minimum, include a general description of how restoration will be 
accomplished, with as much detail as is practicable when the pre-
construction notification is submitted. We do not believe that 
selection of a contractor is necessary for the development of an 
appropriate restoration plan.
    Several commenters requested that we clarify or define some of the 
terms in NWP 33, such as cofferdam, access fill, and temporary 
structure. One of the commenters also asked if the Corps considers 
temporary construction pads to be a form of access that requires 
authorization. They also asked if cofferdam includes structures that 
only partially isolate a portion of the streambed but still allow water 
to pass.
    The Corps believes that cofferdam, access fill, and temporary 
structure are widely used and accepted terms. The Corps is hesitant to 
place strict definitions on these terms. The Corps does consider 
temporary construction pads to be a form of access that can be 
authorized under NWP 33 and we do consider a structure that partially 
blocks a portion of the streambed to be a cofferdam that could be 
authorized by NWP 33.
    One commenter suggested that notification should not be required 
for temporary impacts that last less than 24 hours, when used with Best 
Management Practices. Another commenter requested we include a limit on 
the duration of impacts, such as 48 hours. Another commenter requested 
that the Corps consider an exemption to the pre-construction 
notification requirement if the temporary fill is a mat instead of 
dirt, or a stabilized material, and it is in place for only a short 
time, such as 48 hours. This commenter also suggested that the Corps 
allow an exemption to the pre-construction notification requirement for 
minor amounts of temporary impacts. A commenter questioned whether a 
water-inflated cofferdam would be considered de minimus and be exempt 
from submitting a pre-construction notification. Several commenters 
recommended that a PCN should not be required for temporary 
construction access roads and other construction activities covered 
under NWP 33, unless the discharge causes the temporary loss of greater 
than \1/10\ acre of waters of the United States.
    We have modified NWPs 3, 12, and 14 to address concerns regarding 
pre-construction notification and temporary impacts to waters of the 
United States. In particular, we are not requiring separate 
authorization under NWP 33 for temporary impacts associated with 
activities authorized under these three NWPs. Therefore, we are 
retaining the pre-construction notification requirements from the 
September 26, 2006, proposal for NWP 33. We have modified the text of 
this NWP to require restoration of affected areas to pre-construction 
elevations, with revegetation, as appropriate, to be consistent with 
the changes to general condition 13, Removal of Temporary Fills.
    This NWP is reissued with the modification discussed above.
    NWP 34. Cranberry Production Activities. We proposed to rearrange 
the text of the NWP and to eliminate the phrase ``provided the activity 
meets all of the following criteria''. In addition, we proposed to 
eliminate the requirement for delineations of special aquatic sites 
from the text of the NWP, since this is a requirement of general 
condition 27.
    One commenter requested clarification of the last part of the last 
sentence which reads ``. . .and the NWP would authorize that existing 
operation, provided the 10-acre limit is not exceeded.'' Another 
commenter recommended reducing the acreage limit to \1/2\ acre. This 
commenter also said that pre-construction notifications must clearly 
indicate areas to be impacted by the proposed activity.
    We believe that the text of this NWP is clear. This NWP only 
authorizes activities associated with existing cranberry production 
operations, such as expansion, reconfiguration or leveling. The NWP 
provides authorization for these types of activities, provided the 
total impacts to waters of the United States during the 5-year term of 
the NWP do not exceed 10 acres. It does not authorize the construction 
of new cranberry production operations. Since this NWP authorizes only 
existing cranberry production activities, the 10-acre limit is 
appropriate because these areas remain as wetlands, even though they 
are managed to improve cranberry production. General condition 27 
requires prospective permittees to submit delineations of waters of the 
United States with their pre-construction notifications, so that the 
impacts of the proposed activity can be assessed.
    Some commenters asserted that the activities authorized by this NWP 
will result in more than minimal adverse impacts, individually and 
cumulatively. These commenters also requested that the Corps not 
reissue this permit as it violates section 404(e) of the CWA and the 
section 404(b)(1) Guidelines. In addition, they remarked that it is 
unclear how the permittee would determine whether a net loss occurs. 
They were concerned that permittees would claim that converting a 
natural wetland to a cranberry bog does not result in a net loss of 
wetlands and as a result these losses would not be counted. In 
addition, one commenter remarked that the Corps should not rely on 
compensatory mitigation to offset the potential adverse impacts 
associated with conversion of wetlands to cranberry bogs.
    We believe that the activities authorized by this NWP will not have 
more than minimal impacts both individually and cumulatively. This NWP 
authorizes activities associated with the expansion, enhancement, or 
modification of existing cranberry operations. This NWP does not 
authorize new operations. Regarding the determination of net loss, this 
NWP requires pre-construction notification. The district engineer will 
determine if the proposed project would result in a net loss of wetland 
acreage, not the permittee. In making this determination, the Corps 
would consider conversion of natural wetlands to cranberry bogs a loss 
of waters. We believe the pre-construction notification requirement 
gives district engineers the ability to assess the impacts to aquatic 
resources and, if the acreage limit is exceeded or if otherwise 
warranted, exercise discretionary authority and require an individual 
permit. The individual permit process includes case-specific reviews to 
ensure compliance with the Section 404(b)(1) Guidelines. 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 Corps believes that this NWP is fully in compliance 
with section 404(e) of the Clean Water Act.
    One commenter stated that the Corps' limited cumulative effects 
data suggests a reduction in average impacts associated with this NWP. 
They added that this reduction appears to be due to cranberry 
production activities being authorized under state or regional general 
permits.
    We believe that the use of state programmatic and regional general 
permits to authorize cranberry operations are appropriate. All general 
permits must have no more than minimal adverse effect. Regional general

[[Page 11130]]

permits developed in consideration of local and regional issues have 
been determined to have minimal impacts both individually and 
cumulatively. As with the NWPs, regional general permits also enable 
the district engineer to exercise discretionary authority to require 
individual permit review, where appropriate.
    The NWP is reissued as proposed.
    NWP 35. Maintenance Dredging of Existing Basins. We proposed to 
change the phrase ``disposed of'' to ``deposited at'' in the text of 
this NWP.
    One commenter suggested the NWP be modified to allow disposal of 
dredged material (e.g., sand and gravel) in the littoral system.
    We believe the placement of dredged material at upland sites with 
the implementation of proper siltation controls helps to ensure minimal 
impacts on the aquatic environment, individually and cumulatively. We 
agree that beneficial use of dredged material, including placement of 
suitable material on beaches or in the littoral zone, can provide 
environmental benefits. However, such activities can result in 
unintended adverse environmental effects, and therefore require 
detailed and comprehensive analysis of sediment and littoral processes. 
We believe that an individual permit is the appropriate mechanism for 
authorizing this use of dredged material and that it should not be 
permitted under this NWP.
    Another commenter requested that we require pre-construction 
notification to help determine whether dredging activities authorized 
under this NWP may indirectly adversely impact adjacent beaches and 
near shore habitat.
    Generally, dredging of existing basins does not result in 
substantial adverse impacts to adjacent beaches and/or near shore 
habitat when proper siltation controls are used, as required by this 
NWP. We disagree that pre-construction notification is necessary for 
these dredging activities since division engineers have the ability to 
impose regional conditions, including the requirement for pre-
construction notifications for certain activities, to ensure minimal 
adverse effects on the aquatic environment, individually and 
cumulatively.
    One commenter remarked that we should provide clarification on the 
applicability of this NWP to existing access channels and mooring 
facilities.
    This NWP authorizes excavation and removal of accumulated sediment 
for maintenance of existing basins provided that the activity complies 
with its terms and conditions.
    This NWP is reissued as proposed.
    NWP 36. Boat Ramps. We proposed to modify this NWP to allow 
district engineers to waiver the 50 cubic yard limit for discharges of 
dredged or fill material into waters of the United States to construct 
a boat ramp. We also proposed to allow district engineers to waiver the 
20 foot width limit for boat ramps. These waivers can be issued only 
if, after reviewing a pre-construction notification, the district 
engineer determines that adverse effects on the aquatic environment and 
other factors of the public interest will be minimal.
    Many commenters supported the discretion vested in district 
engineers to waive the limitations imposed by this NWP, however one 
commenter objected to the flexibility provided to the district 
engineers and suggested activities that exceed 50 cubic yards or 20 
feet in width be evaluated under an individual permit process. Another 
commenter requested we include guidelines for when and to what degree 
the district engineer would apply waivers to the 50 cubic yard fill 
limit and/or 20-foot width limit to avoid inconsistencies.
    We believe deference must be given to district engineers' expertise 
and knowledge of the local aquatic environment, as well as his/her 
assessment of information submitted in pre-construction notifications, 
to make case-specific determinations on the effects to the aquatic 
environment. The proposed pre-construction notification requirement for 
discharges that exceed 50 cubic yards or 20 feet in width will enable 
the district engineer to evaluate the direct, indirect and cumulative 
effects of a proposed activity to determine whether a waiver is 
appropriate or an individual permit is required. Because of the 
inherent variability across the nation, we disagree that it is 
necessary or appropriate to establish guidelines for the application of 
the waiver. We expect district engineers to formulate their case-
specific determinations on the appropriateness of the waiver based on 
the unique characteristics of the local aquatic environment and in 
consideration of the specific circumstances of the proposed activity.
    One commenter noted that boat ramps are hardened surfaces that 
diminish near shore or bank habitat and asserted that pre-construction 
notification should be required along with mitigation.
    We believe that the discretion vested in district engineers to 
issue special conditions on a case-specific basis, including 
requirements for appropriate and practicable mitigation (see general 
condition 20), will ensure that losses to the aquatic environment are 
adequately offset. We also believe that the ability of division 
engineers to impose regional conditions for certain activities will 
ensure minimal adverse effects on the aquatic environment, individually 
and cumulatively.
    Two commenters indicated that the case-by-case waiver of the 50 
cubic yard and 20-foot width discharge limits should also require the 
Corps to coordinate with appropriate federal and state natural resource 
agencies.
    We disagree it is necessary to coordinate with federal and state 
natural resource agencies prior to the district engineer determining 
whether to grant a waiver for those activities that exceed the 50 cubic 
yard fill limit and/or 20-foot width limit. District engineers have the 
aquatic resources expertise to determine whether activities will result 
in more than minimal adverse effect on the aquatic environment.
    One commenter noted that activities authorized under this NWP do 
not require Department of the Army authorization in Section 404-only 
waters unless there is more than incidental fallback.
    Discharges in waters of the United States that are not otherwise 
exempt from regulation require Corps authorization. We acknowledge that 
the Corps does not regulate excavation under section 404 in instances 
when there is only incidental fallback.
    This NWP is reissued as proposed.
    NWP 37. Emergency Watershed Protection and Rehabilitation. We 
proposed to rearrange the text of this NWP to match the other permits. 
In the final permit, we have added two additional types of activity 
(reclamation of abandoned mine lands pursuant to Title IV of SMCRA and 
the Emergency Conservation Program administered by the Farm Service 
Agency) that may be authorized.
    One commenter supported the reissuance of this NWP without change, 
since they regularly partner with the Natural Resources Conservation 
Service on emergency projects. Another commenter expressed concerns 
that NWP 37 does not contain specific requirements for conducting 
repair work and it only includes generic references to environmentally 
defensible approaches. The commenter agreed that allowing the work to 
commence immediately (with follow-up permitting as necessary) may be 
desirable due to the urgency of some disaster responses; however, they 
indicated that the process may be prone to uncertainty about 
requirements and may cause more than minimal harm to the aquatic 
resources. The commenter indicated that activities

[[Page 11131]]

are funded by the Natural Resources Conservation Service but not always 
implemented by the agency, so people with limited experience may be 
completing the work. The commenter suggested that work should only be 
allowed to proceed prior to verification where a damage response team 
comprised of federal and state agencies have developed the site 
specific plans for damage repair.
    We believe that in some cases the urgency of the activities 
authorized by this NWP requires an expedited process. All activities 
require pre-construction notification, and as a general matter, the 
prospective permittee should wait until the district engineer issues an 
NWP verification before proceeding with the watershed protection and 
rehabilitation activity. A watershed protection and rehabilitation 
activity may proceed immediately only in those cases of true 
emergencies (i.e., where there is an unacceptable hazard to life or a 
significant loss of property or economic hardship will occur). Where 
practicable, permittees are encouraged to consult informally with the 
Corps before proceeding with emergency activities. In cases where 
emergency watershed protection and rehabilitation activities were 
conducted prior to receiving an NWP verification, the district 
engineer, after reviewing the pre-construction notification, may 
modify, suspend, or revoke the NWP authorization through the procedures 
at 33 CFR 330.5. All of the projects authorized by this permit are 
conducted under the sponsorship of another Federal resource management 
agency. Those agencies, not the Corps, have the responsibility to 
determine whether the project complies with their program authority. 
The Corps must determine the applicability of the NWP to the specific 
project, but for the most part, the Corps only reviews the proposed 
work to determine compliance with the requirements of the NWP and the 
general conditions. We believe that any specific concerns should be 
addressed through regional conditions or through consultation with the 
sponsoring agency.
    A couple of commenters recommended adding Title IV of the Surface 
Mining Control and Reclamation Act, which governs the abandoned mine 
land reclamation program, to proposed NWP E, Coal Remining Activities. 
One commenter suggested adding to NWP 37 work funded by the Farm 
Service Agency under its Emergency Conservation Program, which 
rehabilitates farmland damaged by natural disasters.
    As discussed below, we have revised proposed NWP E (now designated 
as NWP 49), to authorize abandoned mined land reclamation activities 
that also involve coal extraction activities. However, for those 
abandoned mine land reclamation activities that do not involve coal 
extraction, we believe it is more appropriate to authorize these 
activities under NWP 37, since they help protect and rehabilitate 
watersheds, and have revised the text of the NWP accordingly. In cases 
where it is necessary to conduct an emergency abandoned mine 
reclamation activity immediately, the project proponent may proceed 
with the work (see paragraph (d)(3) of general condition 27) while the 
district engineer reviews the pre-construction notification. For 
clarity, we have also added a new paragraph to this NWP that is 
consistent with paragraph (d)(3) of general condition 27. We have also 
added Emergency Conservation Program activities funded by the Farm 
Service Agency, which provides cost-share assistance to eligible 
participants to rehabilitate farmland damaged by floods, hurricanes, or 
other natural disasters. The implementing regulations for the Emergency 
Conservation Program are found at 7 CFR part 701.
    The NWP is reissued, with the modifications discussed above.
    NWP 38. Cleanup of Hazardous and Toxic Waste. We proposed to modify 
this NWP by moving the requirement to submit a delineation of waters of 
the United States to paragraph (b)(4) of the ``pre-construction 
notification'' general condition (GC 27). We also proposed to move the 
last sentence of this NWP to a ``Note'' at the end of the NWP.
    One commenter requested this NWP be revoked, because the cleanup of 
hazardous waste has the potential to cause adverse effects during and 
after the activities. The commenter indicated that remedial activities 
in navigable waters and wetlands need site-specific review, evaluation 
and permitting to ensure proper design, appropriate restoration, and 
long term stability.
    This NWP requires pre-construction notification to the Corps. We 
believe our review under this NWP is sufficient, since the activities 
authorized must be performed, ordered, or sponsored by a government 
agency with established legal or regulatory authority.
    Another commenter suggested the expansion of this NWP to allow 
removal of waste material, such as trash, debris, detritus, or rubble, 
in waters of the United States. The commenter suggested that the NWP 
should be modified to authorize the immediate removal of the waste and 
the notification to the Corps after the material has been removed.
    In general, the removal of waste material should not require Corps 
authorization, unless the activity involves discharges of dredged or 
fill material into waters of the United States and/or structures or 
work in navigable waters of the United States. Temporary access to 
remove the material may be authorized by NWP 33. Restoration of the 
affected area may be authorized under NWP 27.
    One commenter requested clarification regarding the applicability 
of NWP 38 for emergency response to an oil release in waters of the 
United States from electrical equipment that is not covered by a Spill 
Prevention, Control, and Countermeasure (SPCC). The releases are 
governed by EPA's polychlorinated biphenyl spill response regulations 
(40 CFR part 761). Because the activities are not included in a SPCC 
Plan, they are not authorized by NWP 20. The work that is required must 
be initiated within 24 or 48 hours of discovery of the release, so the 
commenter requested that either NWP 20 be modified or the pre-
construction notification requirement under NWP 38 be removed in 
situations where the response time is critical.
    Instead of modifying this NWP, we have modified NWP 20 to include 
coverage of response to spills not covered by a SPCC Plan, but 
otherwise required to be initiated in a short time frame by another 
government agency, such as EPA's polychlorinated biphenyl spill 
response regulations at 40 CFR part 761.
    This NWP is reissued as proposed.
    NWP 39. Commercial and Institutional Developments. We proposed to 
modify this NWP by moving the provisions authorizing residential 
developments to NWP 29, requiring pre-construction notification for all 
activities authorized by this NWP, and applying the 300 linear foot 
limit to ephemeral streams.
    Three commenters objected to moving residential developments from 
NWP 39 to NWP 29 because these developments are inconsistent with the 
original intent of NWP 29. Six commenters supported removing 
residential developments stating that the impacts associated with 
residential developments are not the same as commercial and 
institutional developments. Three commenters desired the ability to use 
multiple NWPs with NWP 39 for mixed-use developments, such as housing 
and commercial. One commenter did not support removing residential 
development from this NWP because mixed-use developments would lead to 
more than minimal impacts if multiple NWPs were used.
    As discussed in the preamble to the September 26, 2006, Federal 
Register

[[Page 11132]]

notice, the proposed changes effectively eliminates the previous NWP 
29. We do not believe that NWP 39 will result in more than minimal 
individual and cumulative adverse effects, on the aquatic environment 
if it is used with other NWPs in accordance with general condition 24, 
Use of Multiple Nationwide Permits.
    Two commenters recommended allowing the NWP to be used in non-tidal 
wetlands adjacent to tidal waters, while another agreed with the 
proposed language to exclude its use from these wetlands. One commenter 
declared that the NWP should not be used in wetlands accessible to 
anadromous fish or in difficult-to-replace aquatic environments. One 
commenter wanted the acreage limit increased to 5 acres and another 
recommended it be decreased to \1/4\ acre so that it reflects the 
limits in the previous version of NWP 29.
    We believe that restricting the types of wetlands the NWP applies 
to is an appropriate method of assuring that minimal adverse impacts 
are not exceeded. Division engineers may regionally condition or revoke 
this NWP in certain areas or for certain activities if they believe the 
NWP would result in more than minimal impacts. Increasing the acreage 
limit to 5 acres would likely result in activities that will have more 
than minimal individual and cumulative adverse effects on the aquatic 
environment. Reducing the acreage limit to \1/4\ acre would cause many 
projects that do have minimal adverse impacts to be evaluated under the 
individual permit process.
    Many commenters supported retaining the language requiring 
sufficient vegetated buffers to be maintained adjacent to all open 
water bodies, such as streams. One commenter requested an unspecified 
minimum vegetated buffer width while two commenters suggested a 200 
foot setback from streams containing anadromous fish. One commenter 
supported removing of the buffer language and relying on paragraph (d) 
(now designated as paragraph (f)) of general condition 20.
    In general, the Corps agrees that buffers (i.e., riparian areas) 
are necessary to protect streams and other open waters. District 
engineers will make determinations regarding the need for and amount of 
required riparian areas in the context of general condition 20, 
Mitigation.
    One commenter stated that including the expansion of commercial or 
institutional buildings will lead to piecemealing projects and result 
in more than minimal impacts on the aquatic environment. Five objected 
to removing language concerning avoidance and minimization to the 
maximum extent practicable. Two commenters suggested maintaining 
language requiring a conceptual mitigation plan. Several commenters 
recommended retaining the language concerning single and complete 
projects. Two commenters asserted that maintaining language addressing 
minimal change to flow and water quality was necessary. Two commenters 
objected to removal of language concerning minimizing on-site and off-
site impacts, such as avoiding flooding of adjacent lands. Another 
commenter objected to removing ``many'' of the restrictions in the 
NWPs, including this one. One commenter suggested that problems will 
occur without the language about ``single and complete projects.''
    We disagree with these comments. Requirements for avoidance and 
minimization, management of water flows, and water quality are provided 
in the NWP general conditions. Removal of language from the permit text 
itself does not affect the applicability of requirements contained in 
Corps regulations and in the NWP general conditions. We have repeatedly 
emphasized in this preamble that permittees must review the general 
conditions before using any NWP to ensure that they are meeting all 
requirements for its use. District engineers will review pre-
construction notifications to ensure that all practicable on-site 
avoidance and minimization has been accomplished. In response to a pre-
construction notification, the district engineer may require 
compensatory mitigation to ensure that the authorized activity results 
in minimal adverse environmental effects (see 33 CFR 330.1(e)(3)).
    Several commenters objected to the mandatory pre-construction 
notification requirement and suggested a pre-construction notification 
threshold of \1/10\ acre or greater than 300 feet of stream loss. Some 
of these commenters reasoned that eliminating the \1/10\ acre pre-
construction notification threshold would be a disincentive to avoid 
the loss of waters of the United States. Two commenters supported the 
proposed pre-construction notification requirement.
    We disagree that the pre-construction notification threshold should 
be \1/10\ acre. We acknowledge that this will result in an increase in 
the number of pre-construction notifications district engineers 
receive, however, we are proposing to simplify the information required 
in a pre-construction notification (see general condition 27) to reduce 
the paperwork burden on prospective permittees. Requiring notification 
for all activities authorized under NWP 39 will help ensure adverse 
minimal effects.
    Thirteen commenters wrote concerning impacts to streams and the use 
of waivers. See the discussion regarding this topic, above.
    One commenter stated that projects authorized by this NWP are not 
water-dependent and should not be permitted.
    We agree that most commercial and institutional developments are 
not water dependent activities. This does not mean that they cannot be 
permitted, only that they undergo an alternatives analysis (see the 
EPA's 404(b)(1) Guidelines at 40 CFR part 230). Although analysis of 
off-site alternatives is not required for general permits, each 
proposed project is evaluated to determine whether avoidance and 
minimization has been accomplished on the project site to the maximum 
extent practicable (see general condition 20, Mitigation). In addition, 
the activity is not authorized under an NWP if the adverse impacts to 
waters of the United States are more than minimal.
    This NWP is reissued as proposed.
    NWP 40. Agricultural Activities. We proposed to modify this NWP to 
require pre-construction notification for all activities, authorize the 
construction of farm ponds in waters other than perennial streams, and 
remove certain restrictions on who could use the NWP.
    One commenter wanted to retain the paragraph numbering of the 2002 
NWP. Another commenter said that this NWP should be limited to USDA 
program participants.
    The Corps believes the revised numbering system is appropriate and 
easy to understand. This NWP should not be limited to USDA program 
participants, since there are agricultural activities being conducted 
by non-participants that result in minimal adverse effects on the 
aquatic environment which are appropriately authorized by NWP.
    One commenter opposed reissuance of NWP 40 because of unacceptable 
impacts to wetlands. Two commenters did not support eliminating the \1/
2\ acre limit per farm tract on impacts to waters of the United States, 
and one commenter recommended reducing the acreage limit to \1/10\ 
acre. One commenter expressed concern that removing farm tracts as the 
basis for the acreage limit would result in use of this NWP to 
authorize discharges of dredged or fill material for non-agricultural 
activities. One commenter stated that

[[Page 11133]]

roadside stands should not be considered farm buildings for 
authorization under this NWP. One commenter recommended retaining the 
\1/10\ acre threshold for pre-construction notification. One commenter 
stated that pre-construction notification should not be required for 
projects conducted under USDA programs.
    We believe the requirement for pre-construction notifications for 
all activities and the case-by-case review by district engineers will 
ensure that activities authorized by this NWP result in no more than 
minimal individual and cumulative adverse effects to the aquatic 
environment and other public interest review factors. The district 
engineer will add case specific conditions and require mitigation when 
needed to ensure impacts do not exceed the minimal level, and will 
assert discretionary authority to require an individual permit when 
impacts are more than minimal. Due to differences in program 
requirements between USDA programs and Section 404 of the Clean Water 
Act, it is not possible to ensure that activities conducted under USDA 
programs will necessarily comply with Section 404 requirements and have 
minimal adverse impact to waters of the United States. Therefore, we 
are retaining the pre-construction notification requirement for USDA 
program participants and projects. We have removed the reference to 
``farm tracts'' because we have found that it caused confusion in the 
past. The limit applies to each single and complete project (see 
definitions section). District engineers will determine during the pre-
construction notification process whether the acreage limit is 
satisfied. Eliminating the use of farm tracts would not expand the use 
of this NWP to non-agricultural activities. The text of this NWP 
clearly states that it authorizes only agricultural activities.
    One commenter objected to authorizing farm ponds in wetlands and 
two objected to authorizing farm ponds in non-tidal waters excluding 
perennial streams. One commenter supported the use of NWP 40 for 
construction of farm ponds only in streams without aquatic life use 
designations. Another commenter said that the proposed modification was 
unnecessary, since many farm ponds are constructed outside of waters of 
the United States or they are exempt from section 404 permit 
requirements because of the exemption at Section 404(f)(1)(C) of the 
Clean Water Act. This commenter expressed concern that the proposed 
changes to NWP 40 would require landowners to submit pre-construction 
notifications for all farm ponds, even if they are not constructed in 
waters of the United States or they qualify for the section 404(f) 
exemption.
    We are limiting the construction of farm ponds to certain types of 
waters where the adverse effects to the aquatic environment are likely 
to be minimal, individually and cumulatively. This NWP does not 
authorize the construction of farm ponds in perennial streams. Under 
this NWP, farm ponds may be constructed in non-tidal wetlands, 
intermittent streams, and ephemeral streams. Pre-construction 
notification is required for all activities authorized by this NWP, so 
that district engineers will have the opportunity to review each 
proposed activity to determine whether the adverse effects on the 
aquatic environment will be minimal. If the construction of a farm pond 
does not involve discharges of dredged or fill material into waters of 
the United States, or if it qualifies for a Section 404(f) exemption, 
the project proponent is not required to submit a pre-construction 
notification. This NWP authorizes the construction of farm ponds that 
involve discharges of dredged or fill material into waters of the 
United States and do not qualify for the Section 404(f)(1)(C) 
exemption, because of the recapture provision at Section 404(f)(2). We 
have added a sentence to the ``Note'' at the end of this NWP to clarify 
that this NWP is used to authorize the construction of farm ponds that 
are not exempt under Section 404(f).
    One commenter was concerned about negative impacts to salmonids 
from agriculture activities. Of main concern was placement of farm 
buildings in wetlands and streams, discharges from drainage tiles into 
farm ditches that were built in salmonid streams, and levee maintenance 
that degrades salmonid habitat and riparian areas.
    Potential adverse impacts from these activities will be addressed 
during the pre-construction notification review. Water quality issues 
are also addressed during Section 401 water quality certification or by 
a Clean Water Act Section 402 permit.
    Two commenters stated that the proposed permit will destroy wetland 
acres. One commenter stated that the loss of prairie potholes and 
western glaciated potholes will be staggering. Another commenter stated 
that discharges into playas, prairie potholes, and vernal pools should 
not be allowed under NWP 40.
    The \1/2\-acre limit for this NWP applies to the loss of waters 
associated with activities authorized by this NWP. During the pre-
construction notification review process, if the district engineer 
determines that adverse effects to aquatic resources are more than 
minimal, individually or cumulatively, he or she will impose special 
conditions to reduce the impacts to the minimal level or assert 
discretionary authority and require an individual permit. In addition, 
division engineers may add regional conditions to this NWP to restrict 
or prohibit its use in certain types of waters, if discharges into 
those waters for agricultural activities would result in more than 
minimal adverse effects on the aquatic environment. General condition 
20, Mitigation, requires district engineers to determine appropriate 
and practicable mitigation necessary to ensure that impacts are no more 
than minimal. The Corps believes the pre-construction notification 
requirement for all activities and the case-by-case review by district 
engineers will ensure that activities authorized under this NWP will 
result in no more than minimal individual and cumulative adverse 
effects to the aquatic environment. The Corps notes that the acreage 
and linear foot limits in the NWPs apply only to waters that are 
jurisdictional under the Clean Water Act.
    One commenter stated that the Corps now proposes to ignore impacts 
to waters of the United States associated with agricultural dredge and 
fill activities that are deemed exempt under Section 404(f) of the 
Clean Water Act.
    This NWP authorizes certain agriculture activities that are not 
eligible for the exemptions under Section 404(f) of the Clean Water 
Act. Those agricultural activities that qualify for the Section 404(f) 
exemptions do not require a Section 404 permit. This has always been 
the case; it is not a change from current practice.
    One commenter stated that the possible waiver for the relocation of 
greater than 300 linear feet of existing serviceable drainage ditches 
constructed in intermittent and ephemeral streams would result in more 
than minimal adverse impacts. Another commenter said that the provision 
authorizing the relocation of existing serviceable drainage ditches 
constructed in non-tidal streams should be conditioned to ensure that 
the activity does not result in a reduction in base flow to the stream.
    In response to a pre-construction notification for the proposed 
relocation of greater than 300 linear feet of existing serviceable 
drainage ditches constructed in intermittent or ephemeral streams, the 
activity is not authorized unless the district engineer issues a 
written waiver after determining that the activity will result in 
minimal adverse effects on the aquatic environment. The relocation of

[[Page 11134]]

drainage ditches must also comply with general condition 9, Management 
of Water Flows, to maintain the capacity of those waters to the maximum 
extent practicable.
    Several commenters stated that some language in the NWP was 
confusing or needed clarifying. This included the phrase ``ditches 
constructed in waters of the United States'', whether the permit 
applies to farm tracts or the entire farm, and the concept of 
``necessary for agriculture production''.
    We have removed the definition of ''farm tract'' and the conditions 
limiting the use of NWP 40 on a particular site, since district 
engineers will receive pre-construction notifications for all 
activities authorized by this NWP. District engineers will review pre-
construction notifications for those NWPs to ensure that the proposed 
work results in minimal individual and cumulative adverse environmental 
effects. We believe that the other terms are self-explanatory. 
Determining whether an activity is necessary for agriculture production 
involves some discretion, which the district engineer will apply when 
evaluating pre-construction notifications for proposed projects.
    One commenter said that this NWP should not authorize the 
construction of livestock watering ponds unless the applicant submits 
documentation showing that he or she has obtained government assistance 
for the construction of the pond, and that no feasible alternatives are 
available that would avoid discharges into waters of the United States. 
This commenter supported the proposed prohibition against constructing 
farm ponds in perennial streams, but also recommended that the NWP 
prohibit the construction of farm ponds in oxbows or lakes. Another 
commenter stated that NWP 40 should authorize the construction of 
aquaculture ponds.
    We do not agree that it is necessary to require prospective 
permittees to obtain government assistance as a condition of 
authorization under this NWP. General condition 20, Mitigation, 
requires permittees to avoid and minimize adverse effects to waters of 
the United States to the maximum extent practicable on the project 
site. District engineers will also review pre-construction 
notifications to ensure compliance with the terms and conditions of 
this NWP, including general condition 20. If a farm pond is proposed to 
be constructed in an oxbow or a lake, the district engineer will review 
the pre-construction notification to determine if the activity will 
result in minimal adverse effects. In addition, division engineers may 
also regionally condition this NWP to restrict or prohibit its use to 
construct farm ponds in certain categories of non-tidal waters of the 
United States. We believe that construction of aquaculture ponds is a 
distinct activity that should not be authorized under this NWP because 
there may be unique issues associated with it (e.g., invasive species 
concerns, changes in water quality). Ponds constructed for purposes 
other than conventional agriculture may be authorized under other 
general permits or individual permits.
    This NWP is reissued as proposed.
    NWP 41. Reshaping Existing Drainage Ditches. We proposed to modify 
this NWP to clarify that it authorizes only the reshaping of drainage 
ditches constructed in waters of the United States where the purpose of 
reshaping the ditch is to improve water quality. As a result of this 
modification, we also proposed to remove the sentence that states why 
compensatory mitigation is not required for the activities authorized 
by this NWP.
    The purpose of this NWP is to encourage landowners who need to 
maintain drainage ditches constructed in waters of the United States to 
do so in a manner that benefits the aquatic environment. The 
maintenance of a drainage ditch is exempt under Section 404(f)(1)(C) of 
the Clean Water Act, and does not require a section 404 permit. This 
exemption does not apply to the reshaping of existing drainage ditches, 
so landowners have a disincentive to reshape their ditches, even though 
such reshaping can be beneficial to the aquatic environment. This NWP 
authorizes those reshaping activities that benefit the aquatic 
environment.
    This NWP was first issued on March 9, 2000, (65 FR 12818) to 
authorize, to the extent that a section 404 permit is required, the 
grading of the banks of a currently serviceable ditch to gentler 
(shallower) slopes than its current or original configuration. 
Reshaping a drainage ditch so that it has shallower side slopes can 
help improve water quality by decreasing the velocity of water flowing 
through the ditch and by spreading out water flow over a greater area 
of soil surface. It should also provide more area for plants to become 
established and grow within the ditch. These changes are likely to help 
improve water quality by increasing water contact with vegetation and 
soil microbes, which facilitates the removal of nutrients and other 
chemical compounds through biogeochemical processes. Slower water flow 
rates through the ditch should also decrease erosion, further improving 
water quality.
    We proposed to remove the prohibition against permanent sidecasting 
of excavated material into waters of the United States, where the 
excavated material results from the ditch reshaping activity. In cases 
where there are jurisdictional wetlands or other waters next to the 
ditch to be reshaped, this prohibition is likely to cause many 
landowners to maintain the ditch at its originally designed 
configuration to qualify for the exemption, since the 404(f)(1)(C) 
exemption allows discharges of dredged or fill material into waters of 
the United States resulting from ditch maintenance activities.
    Some commenters supported the modifications to this NWP because 
they encourage landowners to maintain drainage ditches in a manner that 
benefits the aquatic environment. Several commenters also agreed with 
the proposal to remove the prohibition against permanent sidecasting of 
excavated materials into waters of the United States. Several other 
commenters did not support allowing permanent sidecasting of material 
excavated from reshaped ditches. These commenters suggested that the 
sidecasting would have adverse impacts that exceed the water quality 
improvements. One commenter suggested we provide conditions on the 
sidecast material, such as requiring the fill to be no higher than 18 
inches, so that the hydric soils will retain their hydric 
characteristics. They also suggested requiring random distribution of 
the material and that the sidecast should not interfere with surface 
water flows. Another commenter indicated that permanent sidecasting 
that isolates wetlands on-site, rendering them non-jurisdictional, 
should not be allowed.
    The exemption at 404(f)(1)(C) allows sidecasting, but prohibits 
reshaping drainage ditches. This NWP provides an incentive to improve 
water quality through reshaping the drainage ditches while still 
allowing sidecasting of the material. The Corps believes that allowing 
the sidecasting under this NWP will encourage landowners to reshape 
existing drainage ditches in favor of water quality improvements 
instead of conducting traditional maintenance activities. The Corps 
recognizes the need to ensure that the sidecasting has minor impacts on 
the aquatic environment and does not isolate wetlands. Regional 
conditions may be added to ensure that the individual and cumulative 
impacts are minimal. We note that the presence of a man-made berm 
between wetlands

[[Page 11135]]

and adjacent waters does not necessarily make the wetlands non-
jurisdictional.
    Some commenters suggested that many drainage ditches are within 
what was a historical stream that has been straightened and many of 
these drainage ditches are used by anadromous salmonids as transport to 
upstream spawning grounds and for juvenile rearing. One commenter 
suggested this NWP should not be used in waterbodies bearing salmon 
where a state or federal watershed analysis or limiting factors 
analysis has determined that off-channel rearing habitat is limiting or 
potentially limiting to salmonid production. The commenters indicated 
that an individual permit should be required for work in ditches that 
are accessible to anadromous salmonids. The commenter suggested if this 
NWP is utilized in such waterbodies, a regional condition should 
require a delineation of pools and riffles and that reshaping be 
conducted in a manner that does not reduce volume and surface area of 
pools or other suitable low velocity habitat.
    The Corps agrees that these are important concerns but they only 
relate to certain areas. Division and district engineers will impose 
regional conditions or case-specific conditions, so that adverse 
effects to salmon species that utilize these drainage ditches are 
minimal, individually and cumulatively.
    One commenter suggested this NWP should allow for the restoration 
of ditches that lose their original shape, become vegetated, and obtain 
characteristics of wetlands due to long ditch maintenance cycles, which 
are often greater than 20 years.
    The Corps believes that this NWP may potentially be used in such 
areas in cases where the purpose of the work is to improve water 
quality. However, to be eligible to use this NWP, the drainage ditches 
must be currently serviceable and not so degraded that the area appears 
to have more the characteristics of a wetland than those of a drainage 
ditch.
    One commenter suggested this NWP should authorize reshaping of 
natural drainage features. The commenter indicated that reshaping 
unvegetated streambeds, channels, and watercourses with vertical banks 
subject to continuous erosion would provide flatter and vegetated side 
slopes, which would improve water quality.
    We do not agree that this NWP should be modified to authorize 
alterations to the geomorphology of natural streams and other waters of 
the United States. Such changes to natural waterbodies may result in 
more than minimal adverse effects to the aquatic environment. Other 
forms of Department of the Army authorization may be more appropriate 
to authorize this type of work.
    Another commenter indicated that the amount of change in reshaping 
is not specified.
    We do not believe it is necessary to place a limit on the cubic 
yards of change that can occur with this permit. We believe if the 
purpose is to reshape the ditch and improve water quality, an upper 
limit does not need to be specified.
    One commenter indicated that the term ``* * * ditches constructed 
in waters of the United States'' is confusing and suggested changing it 
to ``serviceable drainage ditches which were constructed in regulated 
wetlands or by channelizing waters of the United States.'' Another 
commenter stated that the Corps has too narrowly defined what 
constitutes a drainage ditch. The commenter indicated that a large 
number of streams in the United States have had some channelization and 
some people refer to these water bodies as drainage ditches. The 
commenter is concerned that some natural waterbodies will be reshaped, 
which would actually reduce water quality.
    We believe the current phrasing is simple and concise, since 
jurisdictional wetlands are waters of the United States. This NWP is 
intended for currently serviceable drainage ditches and the 
applicability of the NWP can be determined on a case-by-case basis by 
the district engineers. This NWP does not authorize the channelization 
of existing streams and it does not authorize the relocation of those 
streams. In addition, this NWP does not authorize the reshaping of 
natural waterbodies. If a ditch has become incised, this NWP may 
potentially be used to reshape the ditch, thereby making it more 
stable.
    Another commenter is concerned about the lack of required 
documentation or demonstration of how the proposed reshaping will meet 
this basic condition of NWP eligibility. The commenter also questioned 
why the Corps does not define the term ``improving water quality'' and 
does not explain how to evaluate a project that improves some aspects 
of water quality, but harms others. One commenter suggested a wording 
change to say, ``for the purpose of stabilizing eroded banks'' instead 
of ``for the purpose of water quality.'' The commenter indicated that 
saying the work is for the purpose of improving water quality is vague 
and subject to misinterpretation.
    The work authorized by this permit is designed to improve water 
quality by regrading the drainage ditch with gentler slopes, which can 
reduce erosion, increase growth of vegetation, and increase uptake of 
nutrients and other substances by vegetation. We have added this 
language to the NWP. More stable banks may result from these 
activities, but the primary objective of these projects is to improve 
water quality. We recognize that the environmental benefits of these 
activities usually need to be determined subjectively.
    A commenter was also concerned that the NWP does not require an 
applicant to prove the proposed ditch reshaping activity will not 
increase the area drained by the ditch. The commenter is concerned this 
NWP has a high potential for abuse and will attract landowners looking 
for authorization to make their ditches larger to drain wetlands more 
thoroughly and they suggest that the Corps will need to dedicate more 
resources to track and monitor the use of this permit. The commenter 
also indicated there must be a limit on the extent of impacts 
authorized under this permit and that extensive reshaping of drainage 
ditches should be subject to individual permit review.
    The Corps believes that the pre-construction notification 
requirement for this NWP will allow us to review larger-scale proposals 
and ensure that additional wetlands are not drained by the work. We 
have modified the text of this NWP, to prevent drainage of additional 
wetlands. We have replaced the phrase ``original design capacity'' with 
``original as-built capacity'' to reflect the extent of drainage that 
occurred when the drainage ditches were originally constructed. We have 
also changed the word ``designed'' to ``constructed'' in that sentence 
to ensure that the reshaping activity does not drain additional waters. 
We believe these changes will help prevent increases in the area 
drained by these ditches, especially in those cases where the ditch did 
not achieve its design capacity when it was originally constructed.
    A commenter recommended modifying the requirement that the capacity 
of the ditch must be the same as originally designed. The commenter is 
concerned that the only way for the capacity to remain the same is if 
the side slopes are increased is to narrow the bottom of the existing 
ditch. The commenter expressed concern about narrowing the bottom of 
the ditch and still having a stable system. The commenter suggested 
requiring the bottom width and depth of the ditch to be the same as 
originally designed.

[[Page 11136]]

    We do not agree that this language should be changed, except to 
refer to the as-built capacity or the original construction of the 
ditch, for the reasons discussed above. The Corps believes that 
changing the language as recommended in the previous paragraph may 
unduly restrict the design criteria, because there may be some cases 
where the bottom width and depth would change, but the capacity would 
remain the same; therefore, we are keeping the current language. The 
important point is that this NWP may not be used to increase the 
capacity of the ditch.
    A commenter requested that some provisions be made to allow for an 
increase in capacity to accommodate increased drainage in the 
watershed. Due to increased runoff, ditches may have become incised and 
restoring stable slopes may require increased capacity. The commenter 
suggested not restricting the permit to original design capacity, since 
this does not allow for laying back the side slopes without decreasing 
maximum depth to avoid increasing cross sectional area. Another 
commenter indicated that there may be constricted conditions that do 
not allow for shallow side slopes and wanted to know if there would be 
flexibility in the use of NWP 41.
    Modifying this NWP to allow increased drainage capacity would be 
contrary to the intent of the NWP, which is to authorize changes in the 
ditch that help improve water quality. If the site characteristics do 
not support reshaping the ditch in a manner that improves water 
quality, without increasing drainage capacity, then this NWP cannot be 
used. Modifications of drainage ditches to accommodate changes in 
watershed hydrology or site limitations may be authorized by other 
types of Department of the Army permits.
    One commenter asked if the NWP 41 would authorize the reshaping of 
existing drainage ditches that were not constructed in waters of the 
United States but now contain an ordinary high water mark or wetlands.
    This NWP may be used in currently serviceable drainage ditches to 
the extent that they are jurisdictional. Division or district engineers 
can make a determination on the applicability of this NWP on a case-by-
case basis.
    A commenter was concerned about the prohibition against stream 
channelization activities. The commenter suggested that activities that 
modify the cross sectional configuration of drainage ditches could 
easily be interpreted as manipulation of a stream's condition that 
causes more than minimal interruption of normal stream processes. The 
commenter encouraged the Corps to remove the channelization restriction 
from NWP 41.
    The intent of this NWP is to authorize the reshaping of ditches to 
provide more stable conditions, which will improve water quality. The 
Corps does not believe this permit should allow channelization of 
streams.
    Several commenters questioned why this NWP excludes non-tidal 
wetlands adjacent to tidal waters. The commenters asked why it matters 
whether currently serviceable drainage ditches were originally 
constructed in non-tidal wetland adjacent to tidal waters or in upland 
settings.
    We believe that excluding ditch reshaping activities in non-tidal 
wetlands adjacent to tidal waters is necessary to ensure that the 
adverse effects on the aquatic environment will be minimal, 
individually and cumulatively. Wetlands adjacent to tidal waters tend 
to have a high level of ecological and hydrologic connectivity with 
tidal waters. Ditch reshaping activities in these areas may have more 
than minimal adverse effects and can be better addressed by other 
general permits or individual permits.
    One commenter stated that this NWP should have a 500 linear foot 
limit and a 250-foot pre-construction notification threshold and that 
mitigation must be required for all adverse impacts to the aquatic 
environment authorized under this permit. Another commenter said that 
the activities authorized by this NWP would result in more than minimal 
adverse effects.
    The Corps believes that the pre-construction notification threshold 
is sufficient. Since we will see all proposals that are over 500 linear 
feet, we will have the opportunity to determine if the impacts are more 
than minimal. The Corps does not believe this NWP will cause a 
permanent loss of waters, since the work involves reshaping existing 
drainage ditches to improve water quality, therefore, mitigation is not 
required.
    Several commenters suggested that removing some of the language 
from the NWP 41 issued in 2002 made the permit less clear. One 
commenter suggested that the Corps add language stating indicating that 
this NWP is limited to reshaping activities that would restore more 
natural stream characteristics such as increasing the area of riparian 
vegetation through regrading or recreating stream meanders.
    The Corps believes that including this type of language would go 
beyond the intent of this NWP, which is to authorize the reshaping of 
existing drainage ditches that may not have ever contained meanders or 
other natural stream characteristics.
    Other commenters suggested putting the language from the 2002 NWP 
41 about compensatory mitigation back in the NWP.
    The Corps agrees and the following language has been placed in the 
final version of NWP 41: ``Compensatory mitigation is not required 
because the work is designed to improve water quality.''
    This NWP is reissued with the modifications discussed above.
    NWP 42. Recreational Facilities. We proposed to modify this NWP by 
removing the language that limits its use to those recreational 
facilities that are integrated into the existing landscape and do not 
substantially change pre-construction grades or deviate from natural 
landscape contours. We also proposed to modify this NWP to require pre-
construction notifications for all activities, and apply the 300 linear 
foot limit for losses of stream bed to ephemeral streams. In addition, 
we proposed to modify this NWP, to authorize the construction of ski 
areas, playing fields, and basketball and tennis courts.
    One commenter suggested that the Corps change the word ``loss'' to 
``fill'' or ``impact'' (including temporary and permanent impacts). 
Another commenter suggested rewording a sentence to address the Rapanos 
and Carabell decisions.
    The Corps believes that the term ``loss'' is the appropriate term. 
The term ``loss of waters of the United States'' is defined in the 
``Definitions'' section of the NWPs. Issues related to the 
jurisdictional reach of the CWA are not addressed in the NWPs or this 
preamble. Department of the Army Section 404 permits are required only 
for activities involving discharges of dredged or fill material into 
jurisdictional waters.
    Three commenters stated that the activities authorized by this NWP 
are not similar in nature, and will not result in minimal adverse 
effects to water quality and the aquatic environment.
    This NWP authorizes recreational facilities. The activities 
authorized by this NWP are all recreational facilities, which is a 
category of activity that is similar in nature. The pre-construction 
notification requirement gives district engineers the ability to assess 
the impacts to aquatic resources and, if warranted, exercise 
discretionary authority to add special conditions or require individual 
permits. Division and district engineers will condition such activities 
where necessary to ensure that these activities will have no more than

[[Page 11137]]

minimal adverse effects on the aquatic environment, individually and 
cumulatively.
    Two commenters supported the removal of the limits on the types of 
recreational activities that can be authorized by this NWP. A number of 
commenters objected to allowing changes in preconstruction grades and 
deviations in natural landscape contours. Two commenters requested we 
prohibit the use of this NWP for golf courses, ski areas, playing 
fields, and basketball and tennis courts because these types of 
facilities are likely to alter natural landscape contours. One 
commenter stated that projects such as golf courses that require 
filling large valleys to create flatter areas, will change the 
hydrology of the area. One commenter requested that the Corps revoke 
this NWP or exclude golf courses, ski slopes, campgrounds and 
associated structures from this NWP. A couple of commenters suggested 
prohibiting the use of this NWP for habitat conversion, and the 
construction of buildings, stables and parking lots. Another commenter 
supported excluding hotels, racetracks, stadiums, and arenas from 
authorization by this NWP. A few commenters stated the proposed NWP 
encourages development of recreational facilities in wetlands, which 
creates maintenance problems, and they requested the NWP not be 
modified.
    The Corps believes that recreational facilities that result in 
minimal individual and cumulative adverse effects on the aquatic 
environment should be authorized by this NWP, regardless of the changes 
that might occur to pre-construction grades or natural landscape 
contours in areas not subject to section 404 jurisdiction. This is 
consistent with activities authorized by other NWPs, which do not 
restrict grading and landscape contouring in uplands. Because of the 
pre-construction notification requirement for this permit, the district 
engineer will have the opportunity to review proposed recreational 
facilities to determine if they will result in more than minimal 
individual and cumulative adverse effects.
    Six commenters objected to the proposal to allow district engineers 
to waive the 300 linear foot limit in ephemeral and intermittent 
streams. The district engineer will only waive the 300-linear foot 
limit in ephemeral and intermittent streams if he or she determines 
that the individual and cumulative adverse effects on the aquatic 
environment are minimal. Any waivers must be issued in writing from the 
district engineer.
    Two commenters requested that the NWP be clarified so that acreage 
limits are applied cumulatively for both the original construction and 
expansion. One commenter said that this NWP should not be used with 
NWPs 29 or 39, to authorize recreational facilities within residential, 
commercial, or institutional developments, and that the \1/2\ acre 
should apply to such projects.
    The NWPs authorize single and complete projects, as defined in the 
``Definitions'' section of the NWPs. The \1/2\-acre limit associated 
with this NWP applies to a single and complete project. In any case, if 
the district engineer determines that the impacts of a proposed project 
are more than minimal, individually or cumulatively, he or she will 
assert discretionary authority and require an individual permit. It is 
not necessary to prohibit the use of NWP 42 with NWPs 29 or 39. Even 
though NWPs 29 and 39 may be used to authorize recreational facilities 
as attendant features of residential, commercial, or institutional 
developments, any use of NWP 42 with NWPs 29 or 39 would be limited by 
general condition 24, Use of Multiple Nationwide Permits. Under that 
general condition, the \1/2\ acre limit would apply to such projects.
    Two commenters supported requiring pre-construction notification 
for all activities authorized by this NWP. In addition, they stated 
that the Corps should require documentation in the pre-construction 
notification that the facilities will result in unaltered surface and 
groundwater regimes and will not alter flow into open waters or 
streams. Another commenter supported retaining the \1/10\ acre 
threshold for pre-construction notifications and eliminating it 
completely for projects conducted under USDA programs. The commenter 
believed requiring pre-construction notifications for all activities 
makes more work for both the public and the Corps.
    The Corps believes that pre-construction notifications are 
necessary to ensure that proposed activities will result in no more 
than minimal individual and cumulative adverse impacts. If the district 
engineer determines that the construction or expansion of recreational 
facilities will result in adverse effects on aquatic resources, 
including water regimes and flow, he or she can impose special 
conditions or require an individual permit.
    One commenter opposed the prohibition on use of this NWP in non-
tidal wetlands adjacent to tidal wetlands, stating that it is 
arbitrary.
    We believe that prohibiting the use of this NWP to authorize 
discharges of dredged or fill material into non-tidal wetlands adjacent 
to tidal waters to construct or expand recreational facilities is 
necessary to ensure that the NWP authorizes only those activities that 
result in minimal individual and cumulative adverse effects on the 
aquatic environment. Non-tidal wetlands adjacent to tidal waters 
warrant greater protection because of their interactions with those 
tidal waters and the functions and services they provide to coastal 
ecosystems. Construction activities resulting in discharges of dredged 
or fill material into those waters are more appropriately addressed 
through the individual permit process or regional general permits.
    One commenter stated that recreation facilities proposing impacts 
in streams accessible to anadromous salmonids should not be authorized 
by this NWP. Another commenter request that the Corps place regional 
conditions on this NWP such that it will not authorize the construction 
of trails or paths along the top bank of a stream unless there is no 
loss of riparian vegetation or the riparian vegetation can grow back. 
That commenter also suggested that this NWP should not be used with NWP 
13, since activities authorized by these two NWPs may adversely affect 
the addition of woody material in stream channels.
    Division engineers can impose regional conditions on this NWP to 
address cumulative impacts, including impacts to salmon habitat. We do 
not agree that NWP 13 should be prohibited from being used with this 
NWP for a single and complete project. Bank stabilization may be 
required to maintain the integrity and safety of a recreational 
facility and to protect aquatic resources.
    One commenter stated that the pre-construction notification 
requirement is not enough to ensure minimal impacts and that the Corps 
position that adverse impacts will be offset by compensatory mitigation 
is unfounded. This commenter also opposed eliminating the requirement 
to submit avoidance and minimization statements and water quality 
management measures.
    The pre-construction notification requirement allows the Corps to 
evaluate recreational facilities on a case-by-case basis and determine 
if the project, as proposed, will result in more than minimal impact. 
The Corps believes that compensatory mitigation is an appropriate means 
of ensuring that adverse effects on the aquatic environment are 
minimal. The requirement to demonstrate avoidance

[[Page 11138]]

and minimization is part of general condition 20, Mitigation.
    One commenter said that this NWP should be conditioned to require 
the establishment and maintenance of buffers adjacent to all open 
waters, streams, and wetlands on the site, to prevent water quality 
degradation due to erosion and sedimentation, protect stream banks, 
provide wildlife habitat, and to enhance watershed functions and 
values.
    The establishment and maintenance of riparian areas next to streams 
and other open waters is addressed through the requirements of general 
condition 20, Mitigation. Please see the preamble discussion for 
general condition 20, where we address comments concerning requirements 
and recommended widths for riparian areas.
    This NWP is reissued as proposed.
    NWP 43. Stormwater Management Facilities. We proposed to modify 
this NWP to require pre-construction notification for the construction 
or expansion of stormwater management facilities, but not for 
maintenance activities. We also proposed to modify the 300 linear foot 
limit for the loss of stream bed by applying that limit to ephemeral 
streams. We proposed to allow district engineers to waive the 300 
linear foot limit if the stream bed is intermittent or ephemeral and 
the filling and/or excavation of that stream bed will result in minimal 
individual and cumulative adverse effects on the aquatic environment. 
In addition, we proposed to remove the requirement for prospective 
permittees to submit maintenance plans and the permit text requiring 
the submission of compensatory mitigation proposals with pre-
construction notifications.
    One commenter suggested we refer to the definition of ``stormwater 
management facilities'' rather than furnish examples of the types of 
stormwater management facilities in the description of the NWP.
    The text of the proposed NWP describes the type and nature of 
activities that are authorized in various stormwater management 
facilities (e.g., construction, maintenance, excavation, installation), 
rather than defining what constitutes a stormwater management facility. 
Therefore, we do not agree that the language within the text of the NWP 
is redundant or superfluous.
    Several commenters requested we add restrictions to this NWP to 
exclude its use in special aquatic sites and/or prohibit construction 
of in-stream retention or detention basins and construction of hardened 
channels (e.g., concrete or riprap).
    We do not agree it is necessary to prohibit the construction of in-
stream retention or detention basins and/or hardened channels since 
division engineers can impose regional conditions to this NWP to 
exclude certain types of activities in specific streams, watersheds, or 
other designated aquatic resources to ensure impacts to the aquatic 
environment are minimal, individually and cumulatively. In addition, 
since construction and expansion activities require pre-construction 
notification, the district engineer can either require case-specific 
special conditions or exercise discretionary authority to require an 
individual permit if the proposed activity, such as construction of in-
stream basins and/or hardened channels, would result in more than 
minimal adverse impact on the aquatic environment. All new construction 
and expansion of existing facilities requires a pre-construction 
notification.
    Several commenters objected to the application of a 300 linear foot 
threshold for intermittent and ephemeral streams, while other 
commenters indicated the activities authorized under this NWP should 
apply exclusively to ephemeral streams and prohibit work in 
intermittent and perennial streams. One commenter stated that no 
stormwater management facilities should be constructed in waters of the 
United States.
    We agree that intermittent and ephemeral streams often provide 
important functions, services, and values, although there are 
situations where activities in these streams will result only in 
minimal adverse effects on the aquatic environment. In many cases, the 
only practicable alternatives involve constructing stormwater 
management facilities in waters of the United States. The pre-
construction notification process allows district engineers to review 
proposed construction and expansion activities on a case-by-case basis 
to ensure that those activities result in minimal individual and 
cumulative adverse effects on the aquatic environment.
    In order for the 300 linear foot threshold for intermittent and 
ephemeral streams to be waived, 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 remains in place and the prospective 
permittee must obtain another type of authorization for the proposed 
activity. As an added level of protection, division engineers can 
impose regional conditions to further restrict or prohibit the use of 
NWP 43 in high value perennial, intermittent and ephemeral streams. 
Please note that this NWP prohibits discharges of dredged or fill 
material to construct new stormwater management facilities in perennial 
streams.
    Some commenters asserted that activities authorized under this NWP 
would result in adverse environmental impacts on spawning habitat or 
cause more than minimal adverse impacts to the aquatic environment if 
the 300 linear foot limit is waived, and, as a result should be 
evaluated under the Corps individual permit process.
    In general, we believe the activities authorized under NWP 43 would 
result in minimal adverse impacts to the aquatic environment, including 
spawning habitat. Requiring individual permits for all activities that 
would otherwise qualify for authorization under NWP 43 based solely on 
the fact that they involve the loss of greater than 300 linear feet of 
ephemeral or intermittent stream bed would place an unnecessary burden 
on the Corps and the permittee, with negligible added environmental 
benefits. District engineers will use their knowledge of the local 
aquatic environments and case-specific circumstances to determine when 
proposed activities would result in more than minimal adverse effects 
on the aquatic environment and consequently require an individual 
permit. In addition, general conditions 2 and 3 provide for the 
protection of aquatic life movement and spawning habitat, respectively, 
which collectively we believe will help to ensure overall minimal 
impacts.
    One of the commenters requested we establish criteria for the 
district engineer's determination to waive the 300 linear foot limit. 
One other commenter expressed concerns that in the absence of such 
guidelines there would be inconsistencies within the Corps as to how or 
to what degree the waiver is applied.
    We believe deference must be given to the district engineers' 
expertise and knowledge of the local aquatic environment, as well as 
their assessment of information submitted in pre-construction 
notifications, to make case-specific determinations on the effects to 
the aquatic environment. Based on the inherent variability across the 
nation, we disagree that it is necessary or appropriate to establish 
nationally applicable criteria for the application of the waiver. 
Aquatic resource functions, services, and values differ across the 
United States and,

[[Page 11139]]

accordingly, there will be corresponding differences in the criteria 
considered for implementation of the waiver consistent with regional 
and/or local variations. District engineers will make their case-
specific determinations on the appropriateness of the waiver based on 
the characteristics of the local aquatic environment and in 
consideration of the specific circumstances of the proposed activity.
    Some commenters suggested we combine this NWP with NWP 3, 
Maintenance, since both include maintenance activities.
    We believe the specific requirements of NWP 43 are necessary to 
allow for specific types of maintenance activities that may not be 
authorized by NWP 3. For example, NWP 43 authorizes activities 
necessary to return the storm water management facility to its original 
design capacities, which may include basins that are not considered 
structures or fills. In contrast, NWP 3 is limited to the repair, 
rehabilitation, or replacement of structures or fills, or the removal 
of accumulated sediments in the vicinity of existing structures.
    A few commenters requested we provide clarifications to NWP 43, 
including whether maintenance and mitigation plans for these facilities 
would be required. Several commenters requested we retain the 
requirement for submittal of maintenance plans for stormwater 
management facilities. Other commenters indicated the pre-construction 
notifications should include maintenance plans, avoidance and 
minimization measures, and water quality management measures.
    The removal of the requirement for prospective permittees to submit 
maintenance plans and compensatory mitigation plans with pre-
construction notifications simplifies this NWP and eliminates 
redundancy with general condition 20, Mitigation. Maintenance plans are 
not necessary if maintenance does not increase the design capacity of 
the facility. For new construction or expansion of existing facilities, 
compensatory mitigation requirements are addressed in general condition 
20, Mitigation. Division engineers also have the ability to impose 
regional conditions to ensure specific activities authorized under this 
NWP result in minimal adverse impacts on the aquatic environment.
    One commenter indicated maintenance of an existing stormwater 
management facility should not require Department of the Army 
authorization.
    We disagree with this comment. Unless an exempted activity, all 
work and/or actions that result in the discharge of dredged or fill 
material into waters of the United States require Department of the 
Army authorization.
    One commenter opposed the elimination of the \1/10\ acre pre-
construction notification threshold.
    We believe that pre-construction notification should be required 
for all new construction and expansion of existing facilities in order 
for the Corps to ensure that the individual and cumulative adverse 
environmental impacts associated with the project are minimal.
    One commenter indicated this NWP should not apply to specific 
watersheds, while another commenter insisted we not re-issue this NWP.
    We believe the stormwater management facilities authorized under 
NWP 43 often constitute vital development or improvement projects that 
serve important public functions, including protection of aquatic 
resources. While such activities may need to be located in waters of 
the United States, we believe the underlying provisions of the NWP 
program that require all authorized activities to have minimal impacts 
on the aquatic environment, coupled with the ability of division 
engineers to impose regional conditions on specific activities, will 
provide effective regulatory mechanisms for protecting the aquatic 
environment without adding further restrictions on the use of NWP 43.
    One commenter indicated the prohibition on use in non-tidal 
wetlands adjacent to tidal waters is an unfair limitation to 
prospective permittees in coastal plains.
    In consideration of the relatively high functions, services, and 
values these wetlands contribute to the overall health of the aquatic 
environment on a national basis, we do not agree that the prohibition 
on the use of NWP 43 in non-tidal wetlands adjacent to tidal waters is 
unfair to those perspective permittees located in coastal plains. More 
importantly, this prohibition is necessary to ensure that this NWP 
authorize only activities with minimal adverse effects, individually 
and cumulatively.
    We have slightly revised the wording of this NWP to clarify that 
activities which increase existing capacity may be authorized as 
``expansion'' of existing facilities if pre-construction notification 
is submitted.
    This NWP is reissued as modified above.
    NWP 44. Mining Activities. We proposed to simplify this NWP and 
modify it to authorize all types of mining activities except for coal 
mining. Surface coal mining activities may be authorized by NWP 21. 
Other types of coal mining activities may be authorized by NWP 49 (Coal 
Remining Activities) or NWP 50 (Underground Coal Mining Activities). 
This NWP continues to authorize aggregate mining and hard rock/mineral 
mining activities. We proposed to retain the \1/2\ acre limit for this 
NWP.
    A number of commenters supported reissuance of NWP 44, but opposed 
the \1/2\ acre limit, stating that it is arbitrary and duplicative of 
other existing regulatory requirements, or is too stringent for the 
permit to be useable. Several commenters expressed support for the \1/
2\-acre limit and recommended adding a linear foot limit for stream 
impacts. One commenter recommended a \1/4\ acre limit for this NWP, to 
protect anadromous fish. One commenter recommended a 2,000 linear foot 
limit for impacts to streams.
    We believe that the terms and conditions of this NWP, including the 
\1/2\-acre limit, will ensure that activities authorized by this NWP 
result in no more than minimal adverse effects to the aquatic 
environment, individually and cumulatively. Aggregate and hard rock/
mineral mining activities that do not qualify for authorization under 
this NWP can be authorized by individual permits. We believe the \1/2\ 
acre limit is appropriate. We have modified the text of this NWP to 
clarify that the \1/2\ acre limit applies to all non-tidal waters of 
the United States. This NWP only authorizes discharges of dredged or 
fill material into certain non-tidal waters of the United States. It 
does not authorize discharges into tidal waters, or non-tidal wetlands 
adjacent to tidal waters. As a pre-construction notification must be 
submitted for all activities, a specific linear foot threshold for 
streams is not necessary, as the district engineer can exercise 
discretionary authority or include special conditions to ensure that 
impacts to streams are no more than minimal. District or division 
engineers can condition this NWP on a case-by-case or regional basis to 
protect anadromous fish.
    One commenter stated that ephemeral streams, isolated waters, and 
artificially created wetlands should not be considered in the acreage 
limitations.
    The acreage limit for this NWP applies to waters of the United 
States. Impacts to non-jurisdictional waters are not considered as 
losses of waters of the United States, and are not counted towards the 
acreage limit for this NWP.
    A couple of commenters stated that the reclamation plan should not 
be required as part of the pre-construction notification. Pre-
construction notifications are frequently submitted to the Corps before 
reclamation plans are

[[Page 11140]]

required and the Corps has no authority over mining reclamation.
    The Corps needs to review the reclamation plan to ensure that the 
authorized activities, including any required reclamation, do not 
result in more than minimal adverse environmental impact. In addition, 
reclamation activities may affect the need to require compensatory 
mitigation.
    Several commenters opposed the removal of the prohibition on using 
NWP 44 in 100-year floodplains, while one commenter stated that certain 
mining activities will increase the flood storage capacity of 
floodplains and streams and thereby reduce flooding, which would 
benefit local communities.
    In accordance with general condition 10, permittees must comply 
with applicable state or local floodplain management requirements that 
have been approved by the Federal Emergency Management Agency. In 
addition, the Corps will address impacts to 100-year floodplains 
through the case-by-case review that occurs through the pre-
construction notification process.
    Several commenters supported the simplification of NWP 44 by 
eliminating redundant terms and conditions. One commenter questioned 
whether the permittee could mine the same area over and over for 
aggregates as new deposits accumulate each year. This commenter also 
asked whether there is a limit on the number of times or locations that 
the permit can be used by one mining company, what kind of separation 
is necessary between mining sites, and whether this NWP can be used by 
one mining company on multiple streams.
    This NWP can be used for any single and complete mining activity 
that has independent utility. The definitions of ``single and complete 
project'' and ``independent utility'' are provided in the 
``Definitions'' section. Therefore, it is possible for an applicant to 
use this NWP each year or on multiple sites, provided each activity is 
a single and complete project that complies with the terms and 
conditions of the NWP, including the requirement that the individual 
and cumulative adverse environmental impacts are minimal. In response 
to pre-construction notifications, district engineers will determine 
whether proposed mining activities constitute separate single and 
complete projects that qualify for NWP authorization.
    A number of commenters were opposed to the reissuance of NWP 44 
because they believe the environmental impacts associated with the 
permit are more than minimal, and could result in significant adverse 
effects to rivers and streams, including those with important fish and 
mussel species. One commenter stated that this NWP does not satisfy the 
``similar in nature'' requirement for general permits. One commenter 
recommended that the Corps establish an activity-specific NWP for the 
aggregates industry. One commenter recommended excluding peat mining 
and in-stream gravel mining, due to the environmental damage produced 
by these types of mining.
    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. All activities 
authorized by this NWP require pre-construction 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 minimal adverse effects on the aquatic 
environment. The district engineer can add special conditions to the 
NWP authorization to ensure that any adverse effects on the aquatic 
environment are no more than minimal, or exercise discretionary 
authority to require an individual permit for the work. This NWP 
complies with the ``similar in nature'' requirement of general permits 
because it authorizes a specific category of activities (i.e., mining 
activities, except for coal mining activities).
    One commenter recommended that the NWP be revoked in Montana 
because these activities would have more than minimal adverse 
environmental effects. One commenter also stated that the permit is not 
adequately coordinated with state and federal resource agencies and 
eliminates the public interest review.
    Division engineers may add regional conditions to this NWP to 
enhance protection of the aquatic environment and address local 
concerns. Division engineers can also revoke this NWP in a specific 
geographic area if the use of that NWP would result in more than 
minimal adverse effects on the aquatic environment, especially in high 
value or unique wetlands and other waters.
    This NWP is reissued with the modification discussed above.
    NWP 45. Repair of Uplands Damaged by Discrete Events. This was 
proposed as NWP A. We proposed to remove paragraph (iii) and portions 
of paragraph (i) from NWP 3 to this new NWP, to authorize emergency 
repair activities. This was intended to simplify NWP 3 and limit that 
NWP to routine maintenance activities.
    Numerous commenters supported the issuance of this new NWP.
    The majority of the comments received in response to the proposed 
NWP involved general concerns regarding the way in which this permit 
could affect time critical responses for emergency situations. Many 
commenters stated that authorization of the repair, rehabilitation, or 
replacement of structures or fills destroyed or damaged by storms or 
other discrete events should remain in NWP 3, since NWP 3 did not 
require pre-construction notification for those activities. Therefore, 
NWP 3 would allow expeditious maintenance activities, especially for 
infrastructure and other important features.
    We agree, and have returned the language to NWP 3 that authorizes 
the repair, rehabilitation, or replacement of structures or fills 
destroyed or damaged by storms or other discrete events. We wish to 
clarify that this NWP is not intended to serve as an emergency permit. 
An ``emergency'' is a situation which would result in an unacceptable 
hazard to life, a significant loss of property, or an immediate, 
unforeseen, and significant economic hardship if corrective action is 
not undertaken within a time period that does not allow the Corps to 
process the application under standard procedures. As many commenters 
pointed out, pursuant to 33 CFR 325.2(e)(4), the Corps has already 
developed special permitting and permit application processing 
procedures for emergency situations, which are applicable to all types 
of DA permits. Further, as several commenters indicated, in accordance 
with 33 CFR 323.4(a)(2), certain emergency response activities are 
exempted from the permitting requirements of Section 404 of the Clean 
Water Act. As a result of the changes discussed above, this NWP 
authorizes only the restoration of upland areas damaged by storms, 
floods, or other discrete events. Those repairs may or may not require 
emergency processing, though in most cases we believe they will not. We 
believe that the confusion regarding the purpose of this NWP was caused 
by the inclusion of the word ``Emergency'' in its name. In order to 
remove that confusion, we are renaming this NWP ``Repair of Uplands 
Damaged by Discrete Events.''
    Several commenters expressed concerns over the lack of clear limits 
for this NWP, and recommended

[[Page 11141]]

establishing acreage or linear-foot limits in order to prevent more 
than minimal impacts to the aquatic environment. On the other hand, 
several commenters suggested establishing thresholds that would require 
pre-construction notification only for large-scale activities. One 
commenter asked how ``pre-event'' bottom contours of waterbodies would 
be determined, particularly on those sites with limited or no data, 
aerial photos, or other information.
    This NWP only authorizes the restoration of damaged uplands to the 
extent that existed before the damage occurred, along with any bank 
stabilization necessary to protect the restored uplands. This NWP may 
also authorize minor dredging where necessary to restore material that 
has washed from the uplands into a neighboring waterbody. Since this 
NWP only authorizes activities to restore damaged areas to previously 
existing conditions, we do not believe that it will result in adverse 
effects that did not previously exist. We believe that the pre-
construction notification requirements established for this NWP are 
necessary to ensure that the proposed activities will result in no more 
than minimal adverse effects. We recognize that the pre-construction 
notification requirement imposes an additional burden on project 
proponents, but we do not believe that it is inequitable or, in most 
circumstances, substantial. The district engineer has discretionary 
authority to require an individual permit for any proposed activity 
that will have more than minimal individual or cumulative adverse 
effects on the environment, and the pre-construction notification 
requirement is necessary for the effective use of this authority. When 
reviewing pre-construction notifications, district engineers will use 
available information, including documentation provided by permit 
applicants in accordance with the ``Notification'' provision of this 
NWP, to determine the pre-existing conditions. If maps or photographs 
are not available, the district engineer's judgment will be used.
    One commenter stated that this NWP could interfere with tribal 
rights, including treaty fishing access, and that it could severely 
impact anadromous salmonid habitat.
    District engineers can impose special conditions or assert 
discretionary authority and require an individual permit for projects 
that have more than minimal adverse effect on the aquatic environment 
or other public interest factors. Furthermore, activities authorized 
under this NWP must comply with the NWP general conditions, including 
general condition 16, Tribal Rights, and general condition 2, Aquatic 
Life Movements.
    One commenter requested clarification regarding the effects of 
changes in the ordinary high water mark after discrete storm or flood 
events on the scope of activities authorized under this NWP.
    Discrete storm or flood events may result in erosion, which can 
change the ordinary high water mark (OHWM) in non-tidal waters or high 
tide line (HTL) in tidal waters. For the purposes of this NWP, 
determinations regarding the location of the OHWM or HTL will be made 
by the district engineer upon receipt of the pre-construction 
notification.
    One commenter stated that this NWP is unnecessary since repair 
activities that do not exceed the original scope of the project should 
be covered by the original authorization. One commenter stated that the 
Corps should not allow rebuilding of structures located in floodplains 
which are likely to be damaged again by subsequent storm events.
    This NWP authorizes the restoration of uplands damaged by a 
discrete event, in cases where there is no available authorization to 
restore those areas. There would be no original authorization for 
natural uplands that were damaged by a discrete event. Man-made uplands 
may have been constructed without the need to obtain a Department of 
the Army permit.
    Activities authorized by NWP must comply with general condition 10, 
Fills within 100-year Floodplains, which requires all NWP activities to 
comply with any applicable FEMA-approved state or local floodplain 
management requirements. We do not agree that there should be a 
prohibition against rebuilding structures in floodplains. Such 
decisions should be made by the appropriate state or local authorities, 
in accordance with FEMA-approved floodplain management requirements.
    A number of commenters stated that the terms of the NWP were 
contradictory with regards to the start date of the authorized 
activity. These commenters requested clarification as to whether the 
work must commence within two years from the date of the damages or 
from the date the pre-construction notification is filed.
    We have modified the text of this NWP to clarify that activities 
authorized by this permit must commence, or be under contract to 
commence, within two years of the date of damage. This change will make 
the second paragraph of this NWP consistent with the pre-construction 
notification requirements for this NWP. This requirement may be waived 
by the district engineer if the permittee can show that delays were 
unavoidable.
    One commenter indicated that this NWP should also authorize 
temporary impacts that are necessary to repair or provide maintenance 
to damaged structures.
    This NWP does not authorize temporary fills, structures, or work 
required to conduct the upland restoration activities. Those temporary 
activities may be authorized by NWP 33.
    Proposed NWP A is issued as NWP 45, with the modifications 
discussed above.
    NWP 46. Discharges in Ditches. This NWP was proposed as NWP B to 
authorize discharges of dredged or fill material into certain types of 
ditches and canals. This NWP allows a landowner to return his or her 
land to its prior condition, but only in those cases where the ditches 
or canals meet all four criteria specified in the NWP. To qualify for 
this NWP, those ditches and canals must: (1) Be constructed in uplands, 
(2) receive water from another water of the United States, (3) divert 
water to another water of the United States, and (4) be determined to 
be waters of the United States. These four criteria will limit the use 
of this NWP to those ditches and canals that generally provide few 
aquatic resource functions. This proposed NWP does not authorize 
discharges of dredged or fill material into ditches or canals that were 
constructed in waters of the United States, such as streams.
    Several commenters supported the new NWP. Several commenters stated 
that the limits for this NWP are too high to prevent more than minimal 
impacts on the aquatic ecosystem, particularly to flood storage and 
water quality. Several commenters recommended establishing a 300 linear 
foot threshold for pre-construction notification and a \1/2\ acre limit 
on permitted impacts, in order to be consistent with other NWPs. 
Another commenter stated that filling ditches should not be allowed 
without an assessment of how the hydrology was altered when the ditch 
was created and how the hydrology and water quality would be affected 
if it is filled. Another commenter recommended requiring pre-
construction notification for all activities under this NWP, because 
authorized activities could result in isolating wetlands that are 
adjacent to the ditches and severing the migratory pathways of aquatic 
organisms. On the other hand, one commenter stated that since the 
ditches regulated by this

[[Page 11142]]

permit have been determined to provide few aquatic resource functions, 
the thresholds for pre-construction notification and limits for 
permitted impacts should be increased. Similarly, one commenter 
suggested that this NWP should not have any limits, because the 
regulated ditches are not natural.
    This NWP authorizes discharges of dredged or fill material into 
certain types of ditches. Those ditches must meet all of the criteria 
listed in the first paragraph of the NWP. To ensure that this NWP is 
used only to authorize discharges into those types of ditches, and to 
ensure that those activities result in minimal adverse effects on the 
aquatic environment, we are requiring pre-construction notification for 
all activities. To address concerns regarding the jurisdictional status 
of the waters of the United States other than the ditch to be filled, 
we have changed the text of this NWP to state that those other waters 
had to have been waters of the United States prior to the construction 
of the ditch. Therefore, the jurisdictional status of those waters 
should remain unchanged after the ditch is filled.
    We are retaining the proposed one acre limit for this NWP. We 
believe that the applicable provisions and terms and conditions, 
including the general conditions, the pre-construction notification 
requirements, and the ability of division and district engineers to 
assert discretionary authority and impose regional and case-specific 
conditions on this NWP, will ensure that the activities authorized will 
result in no more than minimal individual and cumulative adverse 
effects on the aquatic environment.
    One commenter stated that a determination of absence or presence of 
salmonids should be required in channels potentially accessible by 
anadromous salmonids. Another commenter said that this NWP should not 
authorize discharges of dredged or fill material into streams.
    Potential impacts to salmon species will be considered by district 
engineers during the review of pre-construction notifications. General 
condition 2, Aquatic Life Movements, prohibits activities which could 
disrupt the necessary life cycle movements of aquatic species. If 
deemed appropriated, this NWP can be regionally conditioned by division 
engineers to limit or restrict the use of this NWP in waters accessible 
to anadromous salmonid species. The text of this NWP clearly states 
that it does not authorize discharges into streams, or streams that 
have been relocated into uplands.
    Several commenters stated that the proposed NWP is contrary to 
Section 404(e) of the Clean Water Act because it is not a general 
permit for a category of activities that are similar in nature but 
rather a permit for a category of waters, and that the Corps has no 
authority to issue a permit for a category of waters. One commenter 
suggested that the Corps clarify that the NWP is not limited to 
situations where the landowner seeks to return his or her land to its 
prior condition. One commenter requested clarification on whether 
impacts to roadside ditches for road improvements can be permitted 
under this NWP, or if NWP 14 would be applicable. Similarly, another 
commenter suggested that fill for access roads should be included in 
this NWP.
    We expect that this NWP will be mostly used by landowners to return 
ditches or portions of ditches to their prior upland condition. 
However, this NWP may also authorize ditch relocation and reshaping 
activities. To help ensure that this NWP only authorizes activities 
with minimal individual and cumulative adverse effects on the aquatic 
environment, we have added language stating that this NWP does not 
authorize discharges of dredged or fill material that will increase the 
drainage capacity of the ditch and will drain other waters of the 
United States. In the event that the ditch is returned to its prior 
upland condition, the Corps would no longer have regulatory 
jurisdiction over that ditch. This NWP may authorize discharges of 
dredged or fill material into roadside ditches, provided those ditches 
meet all four criteria specified in the first paragraph of this NWP. 
Access roads may be authorized by other NWPs, regional general permits, 
or individual permits.
    One commenter requested clarification as to whether all four or 
only one of the four eligibility criteria are needed for a project to 
be authorized under this NWP. The same commenter requested 
clarification on the eligibility criterion ``receive water from another 
waters of the United States.'' One commenter asked whether this NWP 
could be used to authorize discharges of dredged or fill material into 
both tidal and non-tidal waters of the United States. One commenter 
said that this NWP should not authorize discharges into canals, because 
canals can be large aquatic systems and the adverse environmental 
effects could be more than minimal.
    This NWP applies only to those ditches that meet all four criteria 
specified in the first paragraph of the NWP. The second criterion for 
eligible ditches refers to situations where the ditch constructed in 
uplands receives surface water flow from another water of the United 
States that existed prior to the construction of that upland ditch.
    To ensure that this NWP authorizes only those activities with 
minimal individual and cumulative adverse effects on the aquatic 
environment, we have limited this NWP to discharges of dredged or fill 
material into non-tidal ditches. In addition, it does not authorize 
discharges of dredged or fill material into navigable waters of the 
United States (i.e., section 10 waters). We have removed the word 
``canal'' from this NWP, to provide further clarity since canals may be 
navigable waters of the United States. Discharges into a non-tidal 
ditch that flows into a tidal water could be covered under NWP 46, but 
not discharges into a ``tidal'' ditch, i.e., one into which tidal 
waters flow.
    A number of commenters questioned or requested clarification of 
Corps jurisdiction over ditches following the Supreme Court decisions 
in Rapanos and Carabell. One commenter requested clarification on 
whether the term ``water of the United States'' includes wetlands or 
only waterbodies, and whether a ditch connecting two wetlands would 
qualify for authorization under this NWP. One commenter suggested 
providing guidelines for or examples of the information required to 
determine that a ditch was constructed in uplands.
    This NWP can be used to authorize discharges of dredged or fill 
material into ditches that meet the four criteria in the first 
paragraph, as well as the other terms and conditions of this NWP. The 
waters of the United States other than the ditch constructed in uplands 
may consist of wetlands, open waters, or both. This preamble does not 
address the limits of jurisdiction after Rapanos and Carabell.
    Data used to determine whether a ditch was constructed in uplands 
may be obtained from a variety of sources, such as aerial photographs, 
soil surveys, property maps, plans, plots or plats, previous 
jurisdictional determinations and data sheets, topographical maps, 
wetland inventory maps, and photographs.
    One commenter stated that mitigation should be required for impacts 
to wetlands and aquatic life that may be established in those ditches. 
In contrast, another commenter stated that requiring mitigation for 
reversion to a prior upland condition is excessive and unreasonable.
    We do not believe that it would be appropriate or practical to 
establish a national standard requiring mitigation

[[Page 11143]]

for all activities authorized by this NWP. The need for compensatory 
mitigation to ensure minimal individual and cumulative adverse effects 
will be made by district engineers on a case-by-case basis, in response 
to pre-construction notifications. We believe that the provisions of 
general conditions 27 and 20 will allow the district engineer to 
determine if any compensatory mitigation is needed to reduce the 
effects of the activities authorized under this permit to the minimal 
level.
    One commenter suggested that the one-acre limit should not apply if 
the impacted ditch is replaced with another ditch that would perform 
the same functions.
    Although this NWP may be used to authorize discharges of dredged or 
fill material into ditches for the purpose of relocating those ditches, 
the one acre limit applies to the loss of waters of the United States 
that results from the discharge of dredged or fill material into the 
existing ditch.
    One commenter requested clarification on how the ``constructed in 
uplands'' criterion reconciles with Corps policy at 51 FR 41217, under 
which ditches excavated on dry land are generally not waters of the 
United States.
    The proposed NWP is consistent with the policy established in the 
November 13, 1986 Federal Register Notice (51 FR 41217), because that 
policy also states that the Corps reserves the right on a case-by-case 
basis to determine whether non-tidal ditches excavated on dry land or 
other features constitute waters of the United States.
    One commenter requested clarification on how this NWP reconciles 
with the Section 404 exemption for construction and maintenance of 
irrigation ditches at 33 CFR 323.4(a)(3).
    The Section 404 exemption at 33 CFR 323.4(a)(3) applies to 
construction and maintenance of irrigation ditches or the maintenance 
of drainage ditches. This NWP authorizes activities not covered in the 
exemption, such as discharges of dredged or fill material to restore 
the area to its previous upland condition.
    One commenter stated that this NWP should not be issued because it 
is contrary to the Congressional intention that ditches should be 
regulated as point sources and not as navigable waters.
    This preamble does not address the limits of Clean Water Act 
jurisdiction. To the extent that ditches are determined to be waters of 
the United States, this permit provides authorization for discharges of 
dredged or fill material into them provided all conditions for its use 
are met.
    One commenter recommended providing definitions for ``ditch'' and 
``canal''.
    We believe that district engineers should maintain the discretion 
to determine on a case-by-case basis whether particular features are 
ditches or canals and also are waters of the United States.
    Proposed NWP B is issued as NWP 46 with the modifications discussed 
above.
    NWP 47. Pipeline Safety Program Designated Time Sensitive 
Inspections and Repairs. In the September 26, 2006, Federal Register 
notice, we proposed this NWP (as proposed NWP C) to authorize the 
inspection, repair, rehabilitation, or replacement of any currently 
serviceable structure or fill for pipelines that are determined to be 
time-sensitive in accordance with the Pipeline and Hazardous Materials 
Safety Administration's Pipeline Safety Program (PHP), including its 
criteria at 49 CFR parts 192 and 195.
    Thirteen comment letters were received concerning this proposed NWP 
with six expressing strong support for its issuance but also inquiring 
about the applicability of general conditions 17 (Endangered Species) 
and 18 (Historic Properties) to the use of the permit. Six commenters 
recommended that the Corps enter into programmatic ESA consultation 
with PHP and the U.S. Fish and Wildlife Service and the National Marine 
Fisheries Service.
    This NWP only authorizes activities that are included in the U.S. 
Department of Transportation's Pipeline Repair and Environmental 
Guidance System (PREGS). The PHP is the lead Federal agency for these 
activities and, as such, conducts any Section 7 consultation required 
under the Endangered Species Act and consultation required under 
Section 106 of the National Historic Preservation Act. In cases where 
PHP has not conducted consultation required by either Section 7 of the 
Endangered Species Act, or Section 106 of the National Historic 
Preservation Act, permittees are required by 33 CFR 330.4(f) and (g) to 
notify the Corps if there are threatened or endangered species or 
critical habitat, or historic properties that might be affected or are 
in the vicinity of the project.
    One commenter declared that ``inspections'' should be removed from 
the list of authorized activities since technology exists which allows 
pipeline operators to evaluate a pipeline without the need to visually 
inspect it. One commenter said that this NWP should not authorize the 
repair of pipelines that have deteriorated as a result of neglect. Two 
commenters stated that acreage limits should be placed on the NWP. One 
commenter remarked that access roads should be authorized by the NWP 
because problems will occur when an activity requires use of multiple 
NWPs and one of the other NWPs has an acreage limit.
    We disagree with the first two comments of the preceding paragraph. 
Pipeline inspections are critical activities related to the repair of 
these pipelines. In certain instances it is necessary that the pipeline 
be visually inspected, and this permit allows excavation to expose the 
pipeline. Impacts authorized under this NWP will be temporary in nature 
so the aquatic resources will recover over time. This NWP provides 
Department of the Army authorization for the repair, rehabilitation, or 
replacement of currently serviceable pipelines. These pipelines are 
unlikely to become unserviceable as a result of neglect, since 
operators are required to periodically inspect these pipelines and make 
necessary repairs or replacements. We do not believe acreage limits are 
necessary, given the nature of the category of activities authorized by 
this NWP. Access roads will not generally need to be constructed to 
conduct the pipeline inspection and repair, since access roads would 
likely have been built at the time the pipeline was constructed, or the 
terrain will not impede access to the pipeline. If temporary access 
roads are necessary to conduct the pipeline inspection and repair 
activity, they are authorized by this NWP as long as they are removed 
upon completion of the work. This NWP requires that all temporary 
structures and fill be removed and the area restored to preconstruction 
elevations. We have modified paragraph (c) of this NWP so that it is 
consistent with general condition 13, Removal of Temporary Fills.
    One commenter inquired as to why temporary activities are included 
in the proposed NWP when this work is being removed from other NWPs 
that authorize maintenance. Two commenters requested we add a pre-
construction notification requirement for environmentally sensitive 
areas. One commenter said the pre-construction notification should be 
required for all activities. Two commenters were against and one 
commenter supported prohibiting division engineers from placing 
regional conditions on the NWP.
    Since the objective of this NWP is to authorize inspections and 
repairs for eligible pipelines in a timely manner, the NWP authorizes 
temporary activities necessary to conduct the inspection,

[[Page 11144]]

repair, rehabilitation, or replacement activity. We do not agree that 
it is necessary to require pre-construction notification for these 
activities, since PHP is the lead Federal agency for these activities. 
Submitting a pre-construction notification when a pipeline is in 
critical need for repair will delay the repair and increase the risk 
that the pipeline will leak and cause more damage to the aquatic 
environment, particularly environmentally sensitive areas. Given the 
nature of the activities authorized by this NWP, as well as its 
objective of authorizing these activities in a timely manner, we 
believe it is unnecessary for division engineers to regionally 
condition this NWP. However, division engineers can impose regional 
conditions on this NWP that are limited to measures necessary to 
minimize adverse effects to the aquatic environment, as long as those 
regional conditions do not require pre-construction notification or 
cause delays to inspection and repair activities. We have added a 
``Note'' to this NWP to explain what types of regional conditions may 
be added by division engineers.
    Two commenters suggested that in order for water quality 
certifications to be issued, a list of ``time-sensitive'' activities as 
well as appropriate best management practices must be provided by PHP 
and an opportunity for public comment should be given for the best 
management practices. One commenter stated PHP has not made all the 
best management practices available to the pipeline operators yet.
    We do not agree that it is either necessary or feasible to provide 
a list of time-sensitive activities or best management practices for 
states, Indian tribes, and EPA to make their water quality 
certification decisions for this NWP. In response to concerns raised by 
states or tribes through the water quality certification process, 
districts may add regional conditions as long as they do not preclude 
its use for time sensitive repairs. Identification of time-sensitive 
activities will be made in the future, as the program is implemented. 
Best management practices may vary by region, and we do not believe it 
is necessary for PHP to solicit public comment on those best management 
practices prior to implementing this NWP.
    Proposed NWP C is issued as NWP 47 with the modifications discussed 
above.
    NWP 48. Existing Commercial Shellfish Aquaculture Activities. We 
proposed to issue this new NWP to authorize ongoing shellfish 
aquaculture activities throughout the United States.
    The majority of commenters expressed their support for this new 
NWP, stating that existing commercial shellfish operations do not have 
more than minimal adverse impacts on the aquatic environment and 
contribute benefits to the ecosystem that balance any adverse impact. 
Referencing numerous scientific studies as evidence of the beneficial 
aspects of shellfish culture, many of these commenters expressed their 
desire for the 25-acre threshold for pre-construction notification to 
be raised considerably, or eliminated entirely, stating it was 
arbitrary and created an unnecessary bureaucratic paperwork burden for 
the operators and the Corps. In addition, many commenters recommended 
that the NWP not be limited only to existing operations but also be 
available for the expansion of existing operations and for new 
operations. One commenter supported limiting this NWP to existing 
operations. A few commenters objected to the issuance of this NWP, 
stating that commercial shellfish aquaculture operations of unlimited 
size threaten submerged aquatic vegetation, shorebirds, and other 
estuarine resources, and potentially exceed the minimal impact 
threshold, both individually and cumulatively. Several commenters 
believed that potential for adverse impacts was related more to 
specific activities than to the geographic extent of an operation, and 
that whether an operation engaged in these activities was thus a better 
basis for limits or pre-construction notification thresholds. One 
commenter recommended requiring pre-construction notification for the 
use of canopy predator nets that cover broad areas of an aquaculture 
operation because of potential impacts to a variety of aquatic species. 
One commenter recommended requiring pre-construction notification for 
all activities authorized by this NWP, while another commenter 
suggested a simple reporting requirement in lieu of a pre-construction 
notification.
    Since shellfish improve water quality and increase food production, 
we believe that there is generally a net increase in aquatic resource 
functions in estuaries or bays where shellfish are produced. We do not 
believe it is necessary to require pre-construction notification for 
all activities authorized by this NWP, including those that involve 
canopy predator nets. Concerns regarding the use of canopy predator 
nets are more appropriately address through regional conditions imposed 
by division engineers, or by special conditions added to NWP 
authorizations by district engineers. After review of the comments and 
of scientific literature, we have modified the pre-construction 
notification requirements. Pre-construction notification will be 
required if the project area is greater than 100 acres or if the 
operation conducts any of the following activities: any reconfiguration 
of the aquaculture activity, such as relocating existing operations 
into portions of the project area not previously used for aquaculture 
activities; a change in species being cultivated; a change in culture 
methods (e.g., from bottom culture to off-bottom culture); or dredge 
harvesting, tilling, or harrowing in areas inhabited by submerged 
aquatic vegetation. We do not believe it is necessary to require pre-
construction notification for on-going operations, unless the project 
area is greater than 100 acres or the operation involves dredge 
harvesting, tilling, or harrowing in areas inhabited by submerged 
aquatic vegetation, since on-going operations not meeting these 
criteria are unlikely to result in significant adverse environmental 
effects. However, in order to generate better information for future 
permitting decisions, for those activities that do not require pre-
construction notification, we are requiring operators to submit a brief 
report that will provide the district engineer with basic information 
on the activity. The report must include the size of the project area, 
the location of the aquaculture operations, a brief description of the 
culture methods used, a brief description of the harvesting method(s) 
used, the name(s) of the cultivated species, and a statement addressing 
whether canopy predator nets will be used. For each existing operation 
not submitting a pre-construction notification, the report needs to be 
submitted within 90 days of the effective date of this NWP. Following 
submission of this one-time report, no further reporting is necessary. 
However, if there are any changes to the operation that require 
Department of the Army (DA) authorization, then pre-construction 
notification is required if the proposed changes meet any of the pre-
construction notification triggers. Depending on the region and culture 
method used, there may be additional restrictions (e.g., limits on 
timing of certain activities) that are necessary to further minimize 
impacts to aquatic resources. These regional concerns are best 
addressed by district engineers in coordination with State and local 
agencies and handled through regional conditioning.
    Many commenters were confused about the definitions of ``existing

[[Page 11145]]

operation'' and ``project area'' and requested clarification of these 
terms.
    For the purposes of this NWP, an existing operation is one that has 
been granted a permit, license, or lease from a state or local agency 
specifically authorizing commercial aquaculture activities and which 
has undertaken such activities prior to the date of issuance of this 
NWP. For the purposes of this NWP, the project area is defined as the 
area of waters of the United States occupied by the existing operation. 
In most cases, the project area will consist of the area covered by the 
state or local aquaculture permit, license, or lease. The project area 
may consist of several sites that are not contiguous. The project area 
may include areas in which there has been no previous aquaculture 
activity and/or areas that periodically are allowed to lie fallow as 
part of normal operations. Relocation of existing operations into 
portions of the project area not previously used for aquaculture 
activities may be authorized by this NWP but will require a pre-
construction notification. Cultivation in areas that were previously 
used but allowed to lie fallow does not require a pre-construction 
notification. Operators should maintain appropriate documentation 
showing which areas were previously cultivated.
    This NWP is limited to work associated with the continued operation 
of existing commercial shellfish operations, many of which have been in 
place for hundreds of years. The potential for adverse environmental 
impacts from such existing operations is minimal, and we support the 
objectives of the U.S. Department of Commerce's Aquaculture Policy to 
increase shellfish productivity in this country. Although we believe 
new projects and the expansion of existing operations are also unlikely 
to have a high potential for adverse affects on the aquatic 
environment, without an established data set from which to work, we are 
not prepared to include them in this NWP at this time. Although new 
projects and the expansion of existing operations are not authorized 
initially by this NWP, once authorized by another form of DA permit, 
such as a regional general permit or an individual permit, the 
commercial shellfish activities may continue in accordance with the 
terms and conditions of the issued permit and/or this NWP. Division 
engineers will conduct regional reviews of commercial shellfish 
aquaculture activities in coordination with interested agencies and 
shellfish producers over the next 5 years. After these reviews are 
completed, we may be prepared to propose an NWP to authorize new 
commercial shellfish aquaculture operations and the expansion of 
existing operations in the next NWP re-issuance cycle. The information 
gathered through the pre-construction notification process and 
reporting requirement for existing operations in the current NWP will 
support this effort.
    Several commenters expressed confusion regarding whether ongoing 
commercial shellfish operations require reauthorization under this NWP, 
if those existing operations have previously been permitted by the 
Corps.
    Existing operations previously authorized by another NWP or another 
form of DA permit, such as a regional general permit or an individual 
permit, are covered until the expiration of the original permit. If the 
operator wishes to continue, and the operation's size, conditions, and/
or practices trigger the pre-construction notification requirements of 
this NWP, then a pre-construction notification must be submitted to the 
appropriate district office for review prior to the expiration date of 
the original permit in order to remain in compliance with Federal laws. 
If the pre-construction notification requirements are not triggered, 
the operator must submit the required brief report within 90 days of 
the beginning of coverage under this NWP.
    This NWP authorizes the continued operation of existing commercial 
shellfish aquaculture operations. The continued operation of an 
aquaculture activity may involve removing and replacing structures in 
navigable waters of the United States on a recurring basis and requires 
a current DA permit. However, if an operator is installing a fixed 
structure, the construction period for a DA permit is the period of 
time where the permittee is authorized to conduct work in navigable 
waters of the United States and/or discharge dredged or fill material 
into waters of the United States. Once the DA permit expires, further 
authorization is not required to maintain the structures or fills, but 
if additional work in navigable waters or discharges of dredged or fill 
material in jurisdictional waters are necessary for the continued 
operation of those activities, then another DA permit is required.
    Many commenters were confused about the requirement to submit a 
pre-construction notification, assuming that having to submit a pre-
construction notification meant that an individual permit would be 
required. The requirement to submit a pre-construction notification 
does not mean that an individual permit will be required. Instead, it 
means that a district office will review the project, in coordination 
with appropriate resource agencies, within a 45-day timeframe and 
respond to the applicant with either a verification of the 
applicability of the NWP or a determination that an individual permit, 
or other type of DA permit, is required. If the applicant does not hear 
back from the Corps within 45 days, he or she may assume that the 
operation is authorized by the NWP.
    A pre-construction notification is a brief document that is 
intended to provide the district engineer with enough information to 
determine whether an activity is authorized by NWP. The information 
requirements for a pre-construction notification are listed in 
paragraph (b) of general condition 27, Pre-Construction Notification. 
Detailed studies or analyses are not required for pre-construction 
notifications. The required description of the direct and indirect 
adverse environmental effects that are expected to result from the NWP 
activity should be brief, but with sufficient detail to allow the 
district engineer to determine whether the adverse environmental 
effects will be minimal and assess the need for compensatory 
mitigation. The description for the pre-construction notification 
should include the size of the project area, the name(s) of the species 
being cultivated, the types of cultivation methods (e.g., long lines, 
bottom culture, rack and bags), and the harvesting method (e.g., hand 
pick, dredge, long line harvest). The description should also state 
when dredge harvesting, harrowing, or tilling will occur in waters with 
SAV.
    For all projects that do not trigger the pre-construction 
notification requirements of the NWP, submission of a brief report is 
required. This reporting requirement will help us monitor the use of 
this NWP, to help ensure that it authorizes only those activities that 
have minimal individual and cumulative adverse effects on the aquatic 
environment and other public interest review factors. We have attempted 
to keep the reporting requirement as simple as possible, to minimize 
administrative burdens on operators.
    A few commenters suggested that NWP 48 is unnecessary because NWPs 
4 and 27 adequately cover all the needs of commercial shellfish 
operations.
    Although shellfish seeding activities were authorized by previous 
versions of NWP 4, that NWP did not authorize additional structures or 
work in navigable waters commonly associated with commercial shellfish 
aquaculture activities, such as the installation of stakes and netting 
in navigable waters to

[[Page 11146]]

prevent predators from feeding upon the shellfish. Because of the 
issuance of this NWP and the modification of NWP 27, it is no longer 
necessary to include shellfish seeding in the list of activities 
authorized by NWP 4 and we have removed it. NWP 27 does not cover 
commercial shellfish operations. It covers shellfish habitat 
restoration activities, including shellfish seeding, that are conducted 
to restore shellfish populations. Restored populations may, at some 
future date, be subject to recreational harvesting; but the purpose of 
activities conducted under NWP 27 is restoration, not commercial 
aquaculture. Although NWP 48 represents a change in how commercial 
shellfishing operations are being regulated by the Corps, structures 
and other work in navigable waters of the United States have been 
regulated activities for decades. Discharges of dredged or fill 
material into waters of the United States have been regulated under 
Section 404 of the Clean Water Act since 1972, but the definitions of 
these terms have changed over the years. Individual permits remain a 
permitting tool that will be necessary in some circumstances. There are 
several districts that currently have regional general permits in place 
to authorize aquaculture activities and more general permits are 
expected to be developed.
    In the preamble to the September 26, 2006, proposal, we solicited 
comments on whether to impose limits on the quantity of dredged or fill 
material that could be discharged into navigable waters under this NWP. 
One commenter said that this NWP should be conditioned to prohibit 
discharges of dredged or fill material or to require pre-construction 
notification for each activity involving such discharges. Many 
commenters stated that there should be no limitation on the quantity of 
dredged or fill material that could be discharged into navigable waters 
because the cost of such material is limiting and also because most of 
the material is removed during harvest. Many mentioned large Federal 
restoration projects that have utilized shellfish seeding methods to 
enhance estuaries. Several commenters objected to having no limits and 
several suggested limiting the discharge to 3 to 6 inches or a certain 
percentage of the water column. Several others indicated that materials 
such as marl, concrete, and gravel, in addition to shell and shell 
fragments, should be included in the material authorized for discharge.
    It would be illogical to prohibit discharges of dredged or fill 
material under this permit, since without such discharges, no permit is 
required anyway. This NWP authorizes discharges of dredged or fill 
material into waters of the United States only for shellfish seeding, 
rearing, cultivating, transplanting, and harvesting activities for on-
going commercial shellfish aquaculture activities. With the exception 
of harvesting activities, such discharges usually enhance habitat 
characteristics to support the growth of shellfish. As for harvesting 
activities, pre-construction notification is required for dredge 
harvesting in areas inhabited by submerged aquatic vegetation, so case-
by-case review will be conducted to determine if the activity results 
in more than minimal adverse effects on the aquatic environment. Pre-
construction notification is also required for tilling and harrowing in 
submerged aquatic vegetation. Other harvesting activities that are part 
of on-going activities are unlikely to result in more than minimal 
adverse effects. Division engineers may impose regional conditions on 
this NWP to further restrict cultivation or harvesting practices or to 
require pre-construction notification for additional practices that may 
be of concern within a particular area.
    Many commenters expressed concern over whether the gear associated 
with commercial shellfish culture would be authorized by this NWP, 
noting that much of the in-water gear serves as habitat for other 
aquatic species and is necessary for the success of a commercial 
shellfish venture. Other commenters expressed concern over the waste 
and trash left by geoduck operations and the adverse impacts that 
litter has on the surrounding intertidal environment.
    This NWP authorizes structures or work in navigable waters of the 
United States, as well as discharges of dredged or fill material into 
all waters of the United States for the purposes of the commercial 
seeding, rearing, cultivating, transplanting, and harvesting of 
shellfish, which may involve the installation of buoys, floats, racks, 
trays, nets, lines, tubes, and containers, as well as other associated 
structures and work. The language of the NWP has been modified to 
clarify that it does not authorize the discharge of dredged or fill 
material into waters of the United States for attendant features of 
commercial aquaculture operations such as boat ramps, stockpiles, 
staging areas, and moorings or for the deposition of shell material 
back into tidal waters as a waste material. As stated above, discharges 
of dredged or fill material below the high tide line/ordinary high 
water mark must be of the minimum necessary to provide suitable 
planting substrate. Examples of commercial shellfish species for which 
this NWP may be used to authorize existing commercial aquaculture 
activities include oysters, clams, geoducks, mussels, and scallops. The 
proposed NWP does not authorize commercial aquaculture activities for 
crustaceans or finfish. Types of gear specific to a particular region 
or species are best evaluated on a regional basis by the district 
engineer and can be addressed through regional conditions.
    There are different types of shellfish seed that can be used to 
increase shellfish production. Shellfish seed may consist of immature 
individual shellfish, an individual shellfish attached to a shell or 
shell fragment (i.e., spat on shell) and shellfish shells, shell 
fragments, and/or shell fragments mixed with gravel/concrete/limestone 
placed into waters to provide a substrate for attachment by free 
swimming shellfish larvae (i.e., natural catch). Several commenters 
asked that we clarify the definition of shellfish seeding. We have 
provided a definition of shellfish seeding in the ``Definitions'' 
section of the NWPs. This definition was based on the definition 
provided in the preamble to the September 26, 2006, Federal Register 
notice (71 FR 56275).
    Most commenters asked that we clarify our definition of submerged 
aquatic vegetation (SAV) and asked that we limit our concern to those 
species of aquatic vegetation that have been shown to have beneficial 
environmental effects. Some commenters expressed concern that any 
commercial aquaculture activity would have a negative impact on SAV and 
therefore this NWP should not be issued. Many commenters asked that we 
remove the pre-construction notification requirement for operations 
having more than 10 acres of the project area occupied by SAV, stating 
that shellfish beds clarify the water thereby increasing the likelihood 
that SAV would colonize their project area. A few commenters suggested 
that we define the density of bed and length of time present (i.e., 
recognize seasonal population fluctuation) necessary to trigger the 
reporting requirement.
    Commercial shellfish aquaculture activities often take place in, 
and are found to co-exist with, intertidal areas that are occupied by 
submerged aquatic vegetation (i.e., vegetated shallows). The definition 
of vegetated shallows (see Part D, Definitions) clarifies that 
vegetated shallows are those 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

[[Page 11147]]

freshwater systems. Macroalgae are not included in our definition of 
SAV nor is it our intent to provide protection for noxious or invasive 
species such as Zostera japonica. However, to minimize adverse effects 
to valuable aquatic habitat, such as shallows vegetated by species such 
as Zostera marina, we are requiring pre-construction notification for 
dredge harvesting, tilling, or harrowing in areas inhabited by SAV. To 
capture the regional variances, such as colonization rate, population 
shifts, density, and species composition, districts may choose to 
further refine the definition of SAV in their regional conditions to 
better reflect environmental circumstances in their region. We are 
removing the proposed requirement to submit a pre-construction 
notification if the project area includes 10 acres or more of SAV 
because we have determined that only certain types of activities 
(dredge harvesting, tilling, harrowing) in SAV areas have the potential 
to cause more than minimal adverse impacts.
    The majority of commenters objected to the proposed prohibition 
against the cultivation of new species by an operation while 
recognizing the need to protect the environment from invasive species 
colonization. A few commenters were in favor of the prohibition citing 
concerns about invasive species and changing culture methods. One 
commenter said that this NWP should not authorize experimental 
cultivation of new species in a waterbody.
    Upon review of the comments, the proposed NWP has been modified 
slightly. The NWP does not authorize aquaculture activities for any 
species that were not previously cultivated in the waterbody. However, 
under this NWP, an individual operator can change the species grown 
under this NWP within the project area, provided the change is limited 
to species that have been previously cultivated in the water body. Such 
a change would require pre-construction notification. The commercial 
production of a shellfish species that has not been previously 
commercially produced in the waterbody, including new exotic (non-
native) species, may only be authorized by an individual permit or a 
regional general permit if applicable. Also, this NWP does not 
authorize experimental cultivation of new species. It only authorizes 
on-going commercial shellfish aquaculture activities, provided those 
activities satisfy the terms and conditions of this NWP. Experimental 
cultivation is considered to be a new activity, and may be authorized 
by other DA permits if it involves activities subject to the Corps 
regulatory jurisdiction.
    Producers must be licensed, as required, through their State's 
regulatory agency. Commercial harvest will only commence under each 
State's Shellfish Authority, as delegated by the U.S. Food and Drug 
Administration under the National Shellfish Sanitation Program. To be 
eligible for coverage under this NWP, producers must obtain all 
required permits or licenses required for their culture activities, 
such as transfer permits, development permits, and land-use permits.
    In response to commenters concerned about the individual and 
cumulative adverse effects to the environment and the many commenters 
who stated that acreage limits were not an adequate way of establishing 
or evaluating the interaction of the shellfish operation with the 
aquatic environment, an additional pre-construction notification 
threshold has been added. When an existing operation decides to change 
culture methods, for example to go from bottom-culture to long-line or 
from long-line to bottom culture, pre-construction notification is 
required. These existing operations may be authorized by this NWP, 
after the district engineer has reviewed the pre-construction 
notification and determined that the new activity complies with the 
terms and conditions of the NWP and will have minimal adverse effects.
    We are also committed to conducting programmatic reviews of 
commercial shellfish activities generally to ensure that the Corps is 
authorizing only those activities that result in minimal individual or 
cumulative adverse effects on the aquatic environment with this NWP or 
other general permits for aquaculture activities. These reviews will 
begin as soon as possible in all divisions, and will involve Federal, 
State and local agencies, stakeholders, and the general public to help 
the Corps develop future regional and special conditions to mitigate 
impacts to the aquatic environment or other aspects of the public 
interest which may result from commercial shellfish aquaculture 
activities. Completion of these programmatic reviews is not necessary 
for authorization under this NWP. The data collected through the pre-
construction notification and reporting requirements will support these 
reviews.
    One commenter said that this NWP should include conditions 
prohibiting the use of pesticides. A commenter stated that this NWP 
should require pre-construction notification for any activity located 
in National Park Service units, and that review by the National Park 
Service should be conducted before the activity is authorized by this 
NWP.
    The Corps does not regulate application of pesticides under Section 
10 of the Rivers and Harbors Act of 1899 or Section 404 of the Clean 
Water Act. The application of pesticides into aquatic environments is 
regulated by other agencies through other authorities. We do not agree 
that pre-construction notification should be required for on-going 
commercial shellfish aquaculture activities being conducted in areas 
under the purview of the National Park Service. The National Park 
Service has the authority to control the activities conducted in its 
units, to ensure that those activities are consistent with any 
management requirements or objectives established for those units.
    Proposed NWP D is issued as NWP 48, with the modifications 
discussed above.
    NWP 49. Coal Remining Activities. This is a new NWP. It provides 
for authorization of projects associated with the remining and 
reclamation of lands that were previously mined for coal. New mining 
may be conducted on adjacent areas provided that the area mined is 
smaller than 40 percent of the previously mined lands plus the unmined 
lands required to reclaim the previously mined lands as determined by 
SMCRA. Pre-construction notification is required for all activities 
proposed to be authorized by this permit, and the permittee must 
receive written notification from the District Engineer prior to 
commencing the activity. Additionally, the projects must be authorized 
by OSM or by states with approved programs under Title IV or V of 
SMCRA.
    One commenter requested that the proposed NWP be changed to include 
Abandoned Mine Land (AML) projects that are government funded or 
contracted. They believed that the aquatic benefits resulting from the 
AML projects are similar in nature to those that would be covered by 
this NWP, and that since this NWP requires notification, any adverse 
impacts to high-quality waters could be avoided. Another commenter 
suggested that the Corps clarify the extent to which NWPs are required 
for AML projects, and another commenter stated that the Corps should 
clearly state that no NWP of any kind is required for projects that 
fall under Title IV of SMCRA. One commenter stated that it is 
imperative that the new NWP 49 proposed by the Corps not inhibit 
efforts but rather support recent actions by states, EPA, and OSM to 
encourage opportunities for remining AML impacted lands and waters.

[[Page 11148]]

    We agree that this NWP should support and encourage opportunities 
for remining AML impacted lands and waters. We are thus modifying the 
text of this NWP to authorize AML projects that include coal extraction 
authorized by Title IV of SMCRA, in addition to remining authorized 
under Title V. To authorize Title IV AML projects that do not involve 
coal extraction, we have modified NWP 37, which authorizes emergency 
watershed protection and rehabilitation activities. In response to the 
comment that projects conducted under Title IV of SMCRA should not 
require Section 404 authorization, any discharge of dredged or fill 
material into waters of the United States, requires an authorization 
under Section 404 of the Clean Water Act unless the activity is 
specifically exempt.
    Several commenters agreed that the Corps should issue an NWP to 
authorize remining activities. They stated that until recently the 
Corps has not recognized the environmental benefits of remining and 
basically ignored remining incentives developed by Congress and other 
Federal agencies such as OSM and USEPA. However, these commenters 
believe that the requirement that any newly mined land not exceed 40 
percent of previously mined land plus any unmined land necessary for 
reclamation is inappropriate. They state that the ratio should be left 
up to the SMCRA agency on a case-by-case basis and that a rigid 40 
percent ratio may not allow enough material to be generated to reclaim 
the previously mined land. One commenter stated that the Corps should 
reconsider the proposed limitations since an overall improvement in 
aquatic resources is guaranteed and, as proposed, the ratio threshold 
only serves to limit the reclamation of abandoned mine lands. One 
commenter recommended that the ratio limitation be removed and that the 
Corps rely solely on the demonstration that the overall project, 
including the reclamation activity and any new mining, will result in a 
net increase in aquatic functions. One commenter stated that the Corps 
should reconsider basing permit eligibility on uplands area (acreage), 
which is outside the jurisdiction of the Corps, and instead focus on 
the improvement that such activities would have on the aquatic 
resources within the project area, which is within Corps jurisdiction. 
Another commenter said that this NWP should not authorize coal mining 
in any new areas, because of the potential for those activities to 
cause more than minimal adverse effects on the aquatic environment.
    We would like to clarify that the ``remined'' area on which the 40 
percent ratio is based includes any unmined lands required to reclaim 
the previously mined lands, as determined by the SMCRA agency. The 
allowance for an additional 40 percent of newly mined area is above and 
beyond the area required to complete the restoration of the previously 
mined land. This NWP was intended to authorize single and complete 
projects where a clear majority of the mining would be considered 
remining, and therefore offer operators incentives to reclaim 
previously mined lands. We thus believe that there needs to be both a 
limit on new mining and a requirement for an overall increase in 
aquatic resource functions for this NWP. We believe it is appropriate 
to authorize a limited amount of coal mining in new areas, as long as 
the remining and reclamation activities are conducted. In addition, the 
adverse effects of any new mining will be reviewed through the pre-
construction notification process, and the permittee cannot begin work 
until written verification is received from the district engineer, 
after determining that the remining activity, plus any new mining, will 
result in minimal adverse effects on the aquatic environment.

Proposed Limits

    One commenter suggested that while some impact limits may be 
appropriate, the limit should not be based on drainage area, because 
such an approach fails to recognize that small impacts that occur in 
the lower reaches of a watershed may result in more than minimal 
adverse effects on the aquatic environment. One commenter stated they 
supported the concept of this NWP but believe it should have the same 
restrictions as NWP 21. Several commenters recommended that if the 
Corps does issue this NWP, it should include limitations on the linear 
feet of stream that can be filled. One commenter suggested a limit of 
\1/2\-acre per use (which is the same as that proposed for NWP 50 and 
other NWPs), and stated that without such a limit this NWP would allow 
impacts that far exceed those allowed under other NWPs. One commenter 
recommended imposing a 300 linear foot limit for losses of stream bed. 
Several commenters recommended limiting this NWP to activities that 
result in the loss of less than 300 linear feet of streams, to be 
consistent with other NWPs.
    We did not propose impact limits based on drainage area. We also do 
not believe that specific acreage or linear feet of stream limits 
should be included on a national basis for this NWP and did not 
proposed such limits. If division engineers believe they need to add 
limits at a regional level to ensure that this NWP authorizes only 
activities with minimal adverse effects on the aquatic environment and 
which satisfy other public interest review factors, they may do so. We 
believe that at a national level the ratio limitation and the 
requirement for an overall increase in aquatic function are sufficient 
to ensure that this NWP authorize only activities that produce no more 
than minimal adverse impacts, both individually and cumulatively. 
Furthermore, this NWP is used to provide Section 404 authorization for 
surface coal mining activities that have also been authorized by OSM or 
states with approved programs under Title IV or Title V of SMCRA. The 
Corps believes that the analyses and environmental protection standards 
required by SMCRA in conjunction with the pre-construction notification 
review further ensure that the NWP activities result in minimal 
individual and cumulative adverse impacts on the aquatic environment. 
In fact, this NWP requires a net environmental benefit in the form of 
increased aquatic resource functions, which will be identified through 
functional assessment methods. Through the pre-construction 
notification process, district engineers can also impose special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal. Also, if the district engineer 
determines through this case-by-case review that the activity has the 
potential to result in more than minimal adverse effects to the aquatic 
environment, he or she can exercise discretionary authority to require 
an individual permit.

Functional Analysis

    A couple of commenters stated that the Corps should not require a 
functional analysis of the pre-mining aquatic conditions. They state 
that in these cases, water quality is poor and can only be improved by 
completion of the authorized activities. Furthermore, many of the sites 
are located on waters that are listed on a state's 303(d) impaired 
waters lists. A couple of commenters stated that the Corps' requirement 
for a quantified prediction of the environmental benefits that will 
result is unnecessary because EPA data shows that remining operations 
will result in a net increase in aquatic resource functions. One 
commenter stated that, as the Corps has the data to show that 
reclamation projects in

[[Page 11149]]

formerly mined areas have a beneficial environment effect, every 
permittee should not need to prove this again, in a duplication of the 
SMCRA requirements. One commenter stated that the Corps should not 
specify that a net overall improvement to the site's aquatic functions 
is required, but should focus on whether the project will have minimal 
impacts to aquatic resources in the project area.
    We agree that remining projects are generally beneficial, which is 
one of the reasons for proposing to issue this new NWP. However, we 
must track impacts and mitigation and show both on an individual and a 
cumulative basis that each project has a minimal impact on the aquatic 
environment. This can only be done by the applicant submitting 
information on pre-mining conditions as well as what they anticipate 
the post mining conditions will be. This permit requires that the 
reclamation plan result in a ``net increase in aquatic resource 
functions''. Studies typically show that remining operations do improve 
areas that were degraded by past mining. However, landscape 
characteristics vary, as do mining and reclamation practices. 
Furthermore, as an incentive, this permit also authorizes a limited 
amount of new mining in previously unmined areas adjoining the remined 
area. Therefore, improvements to aquatic resource functions must be 
demonstrated for any project authorized under this NWP. To do this, the 
permittee must submit functional assessments showing that the project 
as a whole, including remining, reclamation and any new mining, will 
result in improved functions, such as water quality, sediment transport 
or retention, and habitat, as appropriate for the specific type of 
aquatic habitat (e.g., stream or wetland). The functional assessments 
can be based on information developed as part of the SMCRA process, and 
should clearly identify and, if possible, quantify, the functional lift 
that will be achieved for each function. We realize the often poor 
quality of the environment where these projects are proposed and 
appreciate the benefits to the aquatic environment that can be achieved 
by completing these projects.
    We understand coal mining is covered by many environmental 
regulations, however the Corps has determined that the current SMCRA 
process does not adequately address impacts to the aquatic environment 
as required under Section 404 of the Clean Water Act. Accordingly, this 
NWP does not duplicate the SMCRA permit process, but we rely on that 
process for information that is useful in our Section 404 analyses. We 
work with the other agencies to avoid potential duplication of effort, 
and currently uses appropriate work and studies done by or for others 
(i.e., ESA or SHPO surveys/findings) in our analyses of proposed 
projects.

Mitigation

    A couple of commenters stated that the Corps should not require 
additional mitigation beyond what is already required of the applicant 
pursuant to the SMCRA permit, since the permitted activities will lead 
to significant water quality improvements both at the site and in the 
watershed. A number of commenters asserted that the Corps has not 
demonstrated that compensatory mitigation offsets the adverse impacts 
of this NWP. Several commenters also stated that mitigation must be 
based on an assessment of stream functions, for which the Corps has no 
approved methods. One commenter recommended that mitigation should 
result in at least a 1:1 replacement of acres lost in order to achieve 
no net loss of waters of the United States from this NWP. Two 
commenters stated that the CWA does not allow the Corps to issue 
general permits based on the use of compensatory mitigation to reduce 
the environmental impacts to minimal.
    As a result of the pre-construction notification process the Corps 
will review each project proposed for authorization by this NWP on a 
case-by-case basis. Additional mitigation may not be required for a 
project. However, this will be determined through the district 
engineer's minimal impact determination. As stated in our regulations, 
we can rely on mitigation in making a minimal adverse environmental 
effects determination (see 33 CFR 330.1(e)(3)).
    The Corps will review the impacts from the proposed final design 
using a functional assessment method. If the functions gained by the 
proposed project exceed the functions lost as a result of proposed 
activities then additional mitigation may not be required. We are 
currently developing new stream functional assessment protocols for 
identifying the functions lost through impacts and the functions gained 
or enhanced through mitigation.
    General condition 20 establishes the framework for determining 
appropriate mitigation and achieving no net loss of aquatic resources. 
The Corps takes into account the fact that, in certain areas and 
circumstances, any compensatory mitigation required by the Corps may be 
fully encompassed or exceeded by requirements of others (e.g., 
reclamation requirements under SMCRA). As long as the impacts to the 
aquatic environment are fully mitigated, the Corps will not require 
additional compensation.

Pre-Construction Notification Requirement

    One commenter requested the pre-construction notification 
requirement be removed. One commenter expressed approval of the 
requirement that the applicant receive written authorization from the 
district engineer prior to commencing the activity.
    We believe that the pre-construction notification requirement helps 
ensure that no activity authorized by this permit will result in 
greater than minimal adverse impacts, either individually or 
cumulatively, on the aquatic environment, because it requires a 
specific case-by-case review of each project. If the district engineer 
determines through this case-by-case review that the activity has the 
potential to result in more than minimal adverse effects to the aquatic 
environment, he or she can exercise discretionary authority to require 
an individual permit.

Minimal Adverse Effects

    A number of commenters stated that this NWP would result in more 
than minimal adverse environmental effects, particularly on a 
cumulative basis, and would result in significant degradation of 
streams. Therefore, the commenters believe NWPs should not be used to 
authorize these activities, and these activities should require 
individual permits. Several commenters cited the 2002 programmatic 
Environmental Impact Statement on surface coal mining, which documented 
impacts to waters, particularly in Appalachia. A few commenters cited 
studies conducted by EPA and other research on the ecological impacts 
of valley fill on streams and on fish populations.
    We believe that a careful case-specific minimal impact 
determination is necessary for this NWP. In addition, as with NWP 21, 
this NWP requires a written verification before the project proponent 
may proceed with the work. The applicant must clearly demonstrate that 
the reclamation plan will result in a net increase in aquatic resource 
functions, and that any adverse impacts to the aquatic environment are 
minimal. If the district engineer determines through this case-by-case 
review that the activity has the potential to result in more than 
minimal adverse effects to the aquatic environment, he or she can 
exercise discretionary authority to require an individual permit.
    Since the functions of aquatic resources vary widely across the 
country, assessment of cumulative impacts is conducted by Corps 
districts

[[Page 11150]]

on a watershed basis, based on regional and local conditions and 
procedures. If the use of this NWP results in more than minimal 
cumulative adverse effects on the aquatic environment in a watershed, 
the division engineer may modify, suspend, or revoke this NWP in that 
watershed. We believe the pre-construction notification requirements 
for this NWP ensures that authorized activities result in no more than 
minimal adverse impacts to the aquatic environment because each project 
is reviewed on a case-by-case basis and the district engineer either 
makes a minimal impacts determination on the project or asserts 
discretionary authority and requires an individual permit. 
Additionally, as noted above, division engineers can add regional 
conditions to any NWP to further restrict the use of the NWP to ensure 
that the NWP authorizes only activities with no more than minimal 
adverse effects on the aquatic environment in a particular watershed or 
other geographic region. Each district tracks losses of waters of the 
United States authorized by Department of the Army permits, including 
verified NWPs, as well as compensatory mitigation achieved through 
aquatic resource restoration, creation, and enhancement.

Impoundments

    Several commenters stated that coal slurry impoundments should not 
be authorized by this NWP. The commenters also stated that NWPs 21, 49 
and 50 cannot be used for both valley fills and coal slurry 
impoundments, as they are not activities that are ``similar in 
nature'', as required for authorization under an NWP.
    The NWPs are issued in accordance with Section 404(e) of the CWA. 
NWPs authorize categories of activities that are similar in nature. The 
``similar in nature'' requirement does not mean that activities 
authorized by an NWP must be identical to each other. We believe the 
``categories of activities that are similar in nature'' requirement of 
Section 404(e) is to be interpreted broadly, for practical 
implementation of the NWP program. NWPs as well as other general 
permits are intended to reduce administrative burdens on the Corps and 
the regulated public. We believe that slurry impoundments are support 
features associated with coal mining and thus can be authorized by this 
NWP. However, the impacts associated with any such impoundments must be 
addressed in the required demonstration that the project will result in 
a net increase in aquatic resource functions.

Scope of Analysis

    One commenter stated that only poor and isolated communities are 
being affected by surface coal mining. Another commenter noted that 
coal slurry impoundments can fail and release mining wastes into 
downstream waters. Two commenters stated that loss of forest and 
movement of dirt associated with surface coal mining has detrimental 
environmental effects.
    Impacts to poor and isolated communities are outside of the Corps' 
scope of analysis pursuant to the National Environmental Policy Act. 
The Corps evaluation of coal mining activities is focused on impacts to 
aquatic resources. In accordance with E.O. 12898, the Corps has 
determined that the issuance of the NWPs, including NWP 49, will not 
cause disproportionate impacts to minority or low-income communities 
(see discussion of E.O. 12898 below). The design and safety of coal 
slurry impoundments are more appropriately addressed through the SMCRA 
process, which provides design and safety requirements for these 
facilities. Mining in general is permitted under a separate Federal 
law, the Surface Mining Control and Reclamation Act. Impacts associated 
with surface coal mining and reclamation operations are appropriately 
addressed by the Office of Surface Mining or the applicable state 
agency. Where relevant to potential impacts on aquatic resources, the 
Corps considers documentation prepared pursuant to SMCRA in its review 
of pre-construction notifications.

Public Participation

    Several commenters stated that this NWP does not provide the public 
with an opportunity to comment on the specific conditions of the NWP 
authorizations that affect their communities and watersheds.
    Section 404(e) of the Clean Water Act provides the statutory 
authority for the issuance of general permits on a nationwide basis for 
any category of activities that the Corps determines will have minimal 
adverse impacts on the aquatic environment, both individually and 
cumulatively. The Corps establishes NWPs in accordance with section 
404(e), by publishing and requesting comments on the proposed permits. 
The general public has the opportunity to comment on NWPs at this time. 
In order to address the requirements of the National Environmental 
Policy Act, the Corps prepares an environmental assessment for each 
NWP, as well as a 404(b)(1) Guidelines analysis if the NWP authorizes 
activities under Section 404 of the Clean Water Act. The decision 
document discusses the anticipated impacts on the Corps' public 
interest factors from a national perspective. NWPs are issued at the 
conclusion of this process. The individual projects that are proposed 
for authorization under an NWP are not given a permit but a 
verification or authorization that the project complies with an NWP. 
There are no requirements for public comments on specific projects 
authorized under NWPs. However, as noted above, one of the bases for 
our determination that the activities authorized by this NWP will have 
minimal impacts is that they must also be authorized by a permit issued 
under SMCRA, which requires many of the same types of analyses that we 
would require under Section 404. In addition, each SMCRA permit action 
includes a public participation process. Therefore, as a practical 
matter, the public will have the opportunity to comment on each 
individual project authorized under this NWP.

General

    One commenter stated that there is no rational basis for the 
creation of this proposed NWP since under SMCRA, the term ``surface 
coal mining operations'' includes both Title V permits authorizing 
remining of previously-mined lands as well as mining of lands that have 
not been previously disturbed. The commenter stated that the NWP may 
not conform to the Section 404(b)(1) Guidelines, which would require 
greater scrutiny for remining activities due to the availability of 
existing benches, roads and fills that could render new fill in waters 
of the United States unnecessary. The commenter also cited Section 
301(p) of the Clean Water Act, which allows exceptions to effluent 
limits for surface coal remining operations. The commenter asserted 
that Section 404 does not have a similar exception for remining, and 
that this NWP cannot replace the requirements for avoidance, 
minimization and mitigation with the proposed amorphous standard of a 
``net increase in aquatic resource function''. The commenter also 
stated that it was unclear from the text of this NWP how the Corps 
intends the remining authorization to work.
    New coal mining activities eligible for authorization under this 
NWP may be authorized by NWP 21, but in contrast to NWP 21 this NWP 
also authorizes abandoned mined land reclamation activities under Title 
IV of SMRCA that involve coal extraction. We recognize the benefits of 
restoration of mine sites that are causing physical and or

[[Page 11151]]

chemical impacts to waters of the United States and the fact that due 
to changes in technology, additional coal may be excavated as part of 
the reclamation process. These sites may also be combined with adjacent 
unmined areas to develop a project that is economically viable. The net 
result of these combined remining/new mining projects is that sources 
of pollution to downstream waters, including acid mine drainage and 
sediment, will be eliminated or substantially reduced when the site is 
reclaimed. We believe this NWP will encourage applicants to consider 
reclamation of adjacent lands in their overall project plans. As noted 
previously, the applicant needs to show through a functional assessment 
method that the project will result in a net increase in aquatic 
resource functions.
    As noted previously, Section 404(e) of the Clean Water Act provides 
the statutory authority for the issuance of general permits on a 
nationwide basis for any category of activities. As part of the 
establishment of the NWPs a decision document is prepared for each NWP 
along with a 404(b)(1) Guidelines analysis. Although analysis of 
offsite alternatives is not required in conjunction with general 
permits, each proposed project is evaluated for onsite avoidance and 
minimization, in accordance with general condition 20, Mitigation. This 
includes consideration of the availability of existing benches, roads, 
and fills that could be used instead of placing new fill in waters of 
the United States.
    Proposed NWP E is issued as NWP 49, with the addition of 
authorization for projects authorized under Title IV of SMCRA that 
include coal extraction.
    NWP 50. Underground Coal Mining Activities. This is a new NWP. Pre-
construction notification is required for all activities proposed to be 
authorized by this permit. As with NWP 21, permittees must receive 
written authorization from the Corps before proceeding. Additionally, 
the projects must be authorized by OSM or by states with approved 
programs under Title V of SMCRA.

Proposed Limits

    Numerous comments were received regarding the proposed \1/2\ acre 
limit on this NWP. Many commenters stated that the \1/2\ acre limit is 
too small to accommodate underground coal mining activities and 
attendant features and it should be deleted. One commenter recommended 
that any limits should be imposed regionally rather than nationally.
    One commenter stated that the \1/2\ acre limit was too high and the 
\1/2\ acre limit applied to small streams could result in the fill of 
long segments of streams without proper mitigation. Two commenters 
stated that if NWP 50 is issued, it must include stringent limits on 
the amount of stream that can be filled. One commenter stated that the 
NWP should be limited to activities that fill less than 300 feet of 
streams and should not be used in watershed where the cumulative amount 
of filled streams is already likely causing more than minimal harm.
    In consideration of the comments received, we have decided not to 
include the \1/2\-acre limit. This permit replaces the 2002 version of 
NWP 21 for underground coal mining activities. The new NWP 21, which 
continues authorization for surface coal mining activities, does not 
include an acreage limit. Instead, NWP 21 relies on the SMCRA 
permitting process in combination with an enhanced pre-construction 
notification requirement which requires that permittees wait for 
written verification from the Corps before beginning their projects, 
even if the pre-construction notification review takes more than 45 
days. After further consideration, we have determined that the same 
logic that applies to NWP 21 also applies to NWP 50, and so have 
adopted similar requirements with respect to limits and verification. 
Thus, the \1/2\ acre limit has been dropped, and permittees must wait 
for written verification from the Corps before proceeding.

Pre-Construction Notification

    Four commenters recommended that applicants should be required to 
receive written authorization prior to commencing the activity. As 
noted above, the Corps has now adopted this requirement for this permit 
and dropped the \1/2\ acre threshold. This requirement is necessary to 
give the district engineer adequate time to determine whether or not to 
assert discretionary authority and require an individual permit if the 
impacts of the proposed activity are more than minimal, either 
individually or cumulatively.

Use of NWP 21 for Underground Mining

    Concerns were expressed by several commenters regarding the 
continued use of NWP 21 to authorize underground mining activities. 
These commenters requested clarification regarding this issue. One 
commenter noted that if NWP 21 could not be used for underground mining 
then most underground mine discharges would require an individual 
permit. One commenter expressed concerns regarding the use of NWP 21 
for coal preparation and processing activities outside of the mine 
site. The commenter noted that preparation activities were not part of 
a surface coal mining project.
    The Corps envisions that activities that are not part of the 
underground mine site, which are outside the SMCRA permit area, can be 
authorized by NWP 21 if they met the conditions for its use. We note 
that many processing plants serve both underground and surface mine 
sites, some at considerable distance, and that construction of such 
plants does not involve underground disturbances in the way that 
underground mining does. Thus we believe it appropriate to continue 
allowing NWP 21 to authorize such activities. We believe the changes 
discussed above to NWP 50 address the concern that, under the proposed 
version of the permit, many underground coal mining activities would 
have required an individual permit. There is no longer an acreage limit 
on the use of this permit, although it can only be used to authorize 
activities which the district engineer has determined will have no more 
than minimal adverse effects, both individually and cumulatively, and 
only after the district engineer has notified the operator in writing 
that use of this NWP is authorized.

Minimal Adverse Impacts

    Many commenters were opposed to issuance of this NWP. They stated 
that general permit procedures were inappropriate for such large scale 
activities and that these types of activities seemed to demand a 
thorough review, public notice, and an alternatives and minimization 
analysis. One commenter stated that the Clean Water Act does not allow 
the Corps to issue general permits on the basis that compensatory 
mitigation will reduce net adverse effects to a minimal level. Two 
comments stated that NWPs can only be used for activities that cause 
minimal environmental effects both individually and cumulatively, and 
if impacts are more than minimal, the project requires an individual 
permit with site-specific analysis and public comment. Several 
commenters stated that coal mining results in significant environmental 
impacts and degradation of streams in Appalachia.
    The Corps believes that a careful case-specific determination of 
impacts is necessary for this NWP. The pre-construction notification 
process, along with the requirement for written verification from the 
Corps, will allow the district engineer to determine if the impacts of 
the proposed activity are no more than minimal, individually and

[[Page 11152]]

cumulatively, or whether an individual permit is required. Furthermore, 
we believe that the Corps can rely on mitigation in making a minimal 
adverse environmental effects determination.
    We believe that an assessment of individual and cumulative impacts 
cannot be made on a national level, because the functions and values of 
aquatic resources vary widely across the country. Assessment of 
cumulative impacts is more appropriately conducted by Corps districts 
on a watershed basis, based on regional and local conditions and 
procedures. We believe our process for this NWP ensures that activities 
authorized by the NWP result in no more than minimal adverse impacts to 
the aquatic environment because each project is reviewed on a case-by-
case basis and the district engineer either makes a minimal impacts 
determination on the project or asserts discretionary authority and 
requires an individual permit. Additionally, as noted above, division 
engineers can add regional conditions to any NWP to further restrict 
the use of the NWP to ensure that the NWP authorizes only activities 
with no more than minimal adverse effects on the aquatic environment in 
a particular watershed or other geographic region. Each district tracks 
losses of waters of the United States authorized by Department of the 
Army permits, including verified NWPs, as well as compensatory 
mitigation achieved through aquatic resource restoration, creation, and 
enhancement. Furthermore, as with NWP 21, all activities authorized by 
this permit require authorization under SMCRA, and the SMCRA analysis, 
documentation and process requirements largely substitute for the 
analysis, documentation and process requirements of an individual 
permit. This is not to say that discharges related to coal mining and 
their impacts on aquatic resources do not require independent review 
and authorization by the Corps with respect to the requirements of the 
CWA, but the Corps believes that the analytical and process 
requirements can be streamlined by relying on the SMCRA process to the 
extent appropriate. Where the district engineer determines that these 
process requirements are not adequate for a particular project, he or 
she will require an individual permit.

404(b)(1) Guidelines

    Several commenters stated that any proposed disturbance to waters 
to support coal processing or underground coal mining activities should 
be subject to the Section 404(b)(1) Guidelines, and that alternatives 
that do not result in impacts to waters of the United States are 
available.
    As noted previously, Section 404(e) of the Clean Water Act provides 
the statutory authority for the issuance of general permits on a 
nationwide basis for any category of activities. As part of the 
establishment of the NWPs a decision document is prepared for each NWP 
along with a 404(b)(1) Guidelines analysis. Although analysis of 
offsite alternatives is not required in conjunction with general 
permits, each proposed project is evaluated for onsite avoidance and 
minimization, in accordance with GC 20. This includes consideration of 
alternatives that do not result in impacts to waters of the United 
States.
    One commenter stated that it was a duplication of effort to have a 
review of the applicants' reclamation plan.
    The Corps understands coal mining is covered by many environmental 
regulations, however the Corps has determined that SMCRA does not 
currently adequately address impacts to the aquatic environment as 
required under Section 404 of the CWA. Therefore this NWP does not 
duplicate the SMCRA permit process but does rely on it for information 
used in the analysis. The Corps continues to work with the other 
agencies to avoid potential duplication of efforts. The reclamation 
plan can be used to consider proposed mitigation measures for the 
projects being proposed for authorization by NWP 50. This information 
will be used by the Corps in making a determination as to whether the 
impacts are no more than minimal.

Scope of Analysis

    One commenter stated that there should be a way to figure out how 
to extract the coal and still protect the environment. Another 
commenter noted that the amount of earth moving by mining activities is 
sufficient by itself to demonstrate that environmental impacts of 
mining are significant. One commenter stated that the subsidence that 
may occur as a result of underground mining should be considered in 
determining the acreage impacts to waters for this NWP. One commenter 
noted that coal mining waste contains chemical components that are 
toxic to aquatic life and that waste impoundments may fail. The 
commenter believed that this justifies an independent review. One 
commenter stated that the ``facing up'' practice cannot be carved out 
from the full range of environmental impacts associated with 
underground mining operations and must be reviewed comprehensively and 
not piecemeal.
    The Corps evaluation of coal mining activities is focused on 
impacts to aquatic resources. Other impacts of coal mining are 
addressed under a separate Federal law, SMCRA. Such impacts, including 
those associated with reclamation operations, are appropriately 
addressed by OSM or the applicable state agency, if program delegation 
has occurred. To the extent that reclamation activities affect waters 
of the United States, these will be addressed in the Corps review and 
appropriate mitigation required.

Similar in Nature

    Several commenters stated that slurry impoundments should not be 
allowed under NWPs, and that NWPs can only be issued for activities 
that are similar in nature. The Corps has determined that slurry 
impoundments are related to underground mining activities. The NWPs are 
issued in accordance with Section 404(e) of the CWA. NWPs authorize 
categories of activities that are similar in nature. The ``similar in 
nature'' requirement does not mean that activities authorized by an NWP 
must be identical to each other. We believe the ``categories of 
activities that are similar in nature'' requirement of Section 404(e) 
is to be interpreted broadly, for practical implementation of the NWP 
program.

Mitigation

    Several commenters stated that the mitigation done for coal mining 
impacts is scientifically indefensible and, absent such mitigation, the 
projects authorized under NWP 50 have more than minimal adverse effect 
and are therefore not eligible for an NWP. They stated that current 
mitigation projects have so far been unsuccessful and referenced a 
court case in the Southern District of West Virginia (Ohio Valley 
Environmental Coalition v. Bulen), where they noted that a Corps 
official stated that he did not know of a single instance of successful 
headwater stream creation. Also, the commenters stated that the Corps 
did not include any specific guidelines for how to assess stream 
function in order to determine the adequacy of compensatory mitigation. 
They also stated that the Corps has not shown that mitigation will 
offset the impacts authorized under NWP 50 or that off-site enhancement 
of streams would fully compensate for functions of streams that are 
destroyed. Other commenters stated that the Corps mistakenly allows the 
mitigation requirements of SMCRA and state water quality laws to 
satisfy the independent

[[Page 11153]]

requirements of Section 404 of the Clean Water Act. They stated that 
allowing a permittee to claim a compensatory mitigation or reclamation 
activity already required under SMCRA as compensatory mitigation under 
the Clean Water Act is ``double-counting'' and improperly blurs the 
requirements of sequencing (i.e., avoidance, minimization, mitigation) 
imposed under the 404(b)(1) guidelines. Other commenters recommended 
that a mitigation ratio of at least 1:1 should be required in order to 
achieve no net loss, and that mitigation also should be required for 
potential, as well as actual, impacts. Several commenters stated that 
final reclamation of wetland habitat will most likely occur in the 
absence of required compensatory mitigation.
    In order to ensure that an activity results in no more than minimal 
adverse effects on the aquatic environment, the Corps will add permit 
conditions that require compensatory mitigation that meets specified 
success criteria. The Corps will generally require the permittee to 
monitor the mitigation site for five years and, if the mitigation site 
does not meet the success criteria at that time, remediation or 
additional mitigation will be required. This ensures that the 
authorized activity will not result in a net loss in aquatic functions. 
The Corps has increased its compliance efforts to ensure that projects 
authorized by DA permits are constructed as authorized and that 
mitigation is successful.
    We are currently developing new stream functional assessment 
protocols to identify and quantify the functions lost through 
authorized impacts and the functions gained or enhanced through 
mitigation. The Corps coordinates with the SMCRA and state resource 
agencies to achieve appropriate aquatic restoration on mine sites, 
which can reduce or eliminate the amount of off-site compensatory 
mitigation needed. The Corps does not consider this ``double-
counting'', because the areas restored are only counted once in the 
replacement of aquatic resource functions. As long as the functions 
lost as a result of the permitted activity are mitigated through the 
onsite restoration or enhancement, it does not matter if the 
restoration also meets other goals unrelated to the Section 404 
impacts. General condition 20 establishes the framework for achieving 
no net loss of waters/wetlands, as well as the sequential review of 
mitigation approaches on-site. The Corps takes into account the fact 
that, in certain areas and circumstances, any Corps compensatory 
mitigation requirement may be fully encompassed or exceeded by 
requirements of others. As long as the impacts to the aquatic 
environment are fully mitigated, the Corps will not require additional 
compensation.
    Proposed NWP F is issued as NWP 50, with the modifications 
discussed above.

General Conditions

    One commenter supported the proposed change to the ordering of the 
general conditions. One commenter said that the proposed changes to 
general conditions will reduce environmental protection. A commenter 
stated that temporary impacts should be addressed through a new general 
condition, instead of requiring separate authorization under NWP 33.
    The changes to the general conditions will help improve 
environmental protection, by providing clearer and more enforceable 
requirements for permittees. Department of the Army permits are 
required for temporary structures, work, or discharges into waters of 
the United States, including navigable waters, unless those activities 
are exempt from permit requirements. Therefore, those regulated 
activities cannot be authorized through a general condition. In some 
cases, temporary structures, work, or discharges associated with 
another permitted activity are included in the NWP authorization for 
that activity; in other cases temporary structures, work or discharges 
must be authorized separately under NWP 33.
    One commenter said that the proposed ``Note'' for the NWP general 
conditions should contain language requiring permittees to comply with 
regional conditions and state water quality standards. This commenter 
also requested that the word ``should'' be replaced with ``must.''
    The proposed ``Note'' clearly states that permittees are required 
to comply with regional conditions and that permittees should check on 
the status of water quality certifications and Coastal Zone Management 
Act consistency determinations before using an NWP. We cannot require 
prospective permittees to contact district offices to obtain this 
information (hence we have not replaced ``should'' with ``must'') but 
we have clarified that individual certification is required in cases 
where prior certification for the NWP has not been received. Permittees 
may also be able to obtain information on regional conditions and the 
status of water quality certifications and Coastal Zone Management Act 
consistency determinations through the Internet or other sources.
    One commenter recommended adding a new general condition to address 
the downstream movement of substrate and wood. This general condition 
would require stream crossings, such as bridges and culverts, to allow 
downstream movement of substrate and wood during 100-year flow events, 
as well as movement of wood from upstream segments to downstream 
segments. Another commenter suggested adding a new general condition to 
address adverse impacts from invasive species.
    We do not agree that it is necessary to add a new general 
condition, as there are other general conditions which already include 
adequate provisions to address this concern. General condition 2, 
Aquatic Life Movements, states that no activity may substantially 
disrupt the necessary life-cycle movements of those species that 
normally migrate through the area. General condition 9, Management of 
Water Flows, states that, to the maximum extent practicable, the 
activity must not restrict or impede the passage of normal or high 
flows, unless the primary purpose is to impound water. In general, 
blockages caused by restricted movement of wood or substrate would 
violate these conditions and must be prevented. Further, the ability 
for division and district engineers to exercise discretionary authority 
or regionally condition proposed activities under an NWP are 
sufficiently to address any site-specific concerns related to blocked 
movement of wood and ensure that authorized activities result in 
minimal adverse effects on the aquatic environment. The Corps does not 
have the regulatory authority to prohibit the introduction of invasive 
species. Invasive species may become established in areas through many 
mechanisms, not just disturbances caused by construction activities 
authorized by NWPs and other Corps permits. Such a condition would also 
be unenforceable and therefore such a general condition would be 
contrary to 33 CFR 325.4(a).
    A number of commenters objected to the removal of the phrase 
``including structures or work in navigable waters of the United States 
or discharges of dredged or fill material'' from text of certain 
general conditions. One commenter asked if removal of that phrase from 
those general conditions would reduce protection of aquatic resources.
    The removal of that language will not affect protection of waters 
of the United States. The stricken language was considered redundant as 
it simply refers to the general types of activities regulated under 
sections 10 and 404.

[[Page 11154]]

General Conditions

    GC 1. Navigation. We proposed to modify this general condition to 
require permittees to install any safety lights and signals prescribed 
by the U.S. Coast Guard. We also proposed to modify this general 
condition to notify permittees that they may be required to remove 
structures or work that cause unreasonable obstruction to navigation.
    One commenter supported the requirement concerning safety lights 
and signals. One commenter said that the Federal government should bear 
the financial costs for the removal of structures or work it 
authorized. One commenter stated that the Federal government itself 
could be a permittee and be required to remove the structure or work at 
the Federal government's expense. One commenter said that this general 
condition should also include waters determined by states to be 
navigable waters.
    There may be cases where activities authorized by Department of the 
Army permits interfere with navigation or an existing or future 
operation of the United States and need to be removed. The cost of 
removal is the responsibility of the permittee, even in cases where the 
permittee is the Federal government. If there is any question as to 
whether or not a particular activity or structure will interfere with 
navigation, the permittee should check with the Coast Guard before 
beginning the activity. Adverse effects to navigable waters identified 
by states that are not navigable waters of the United States should be 
addressed by state regulatory programs. The Corps lacks the authority 
to enforce state laws and regulations for state navigable waters.
    The general condition is adopted as proposed.
    GC 2. Aquatic Life Movements. We proposed to modify this general 
condition by adding the phrase ``if known'' before ``necessary life 
cycle movements'' because those life cycle movements that are important 
are not always well understood for indigenous aquatic species. The 
intent of this general condition is to ensure that the necessary 
movements of aquatic species are not substantially disrupted.
    Many commenters expressed opposition to the proposed modification 
and recommended removing the phrase ``if known.'' They stated that the 
lack of knowledge concerning aquatic life movements should not be 
construed as authorization to allow disruption of aquatic life cycle 
movements. One commenter supported the proposed modification, and also 
recommended adding ``at the time of the permit application, if known, 
or if documented at the time of application.'' to this general 
condition.
    Activities authorized by NWPs should not substantially disrupt the 
necessary life cycle movement of aquatic species, and the absence of 
species-specific information does not mean measures cannot be taken to 
prevent unnecessary obstructions to those movements. Even if the 
necessary life cycle movements are not known, inferences can be made to 
help ensure that those movements can continue. Those inferences can be 
based on general considerations of the mitigation measures necessary to 
ensure that adverse impacts to aquatic life movements are minimized to 
the maximum extent practicable. For example, properly sized culverts 
that are installed to retain low flow conditions will help ensure that 
life cycle movements will continue. Therefore, we are removing the 
phrase ``if known'' from this general condition to allow district 
engineers to continue to use their judgment, so that adverse effects to 
aquatic life movements are minimized, even if the necessary life cycle 
movements are not known, but can be generally inferred.
    Two commenters requested clarification of the term 
``substantially'' as used in this general condition. One commenter said 
that this term results in too high a threshold for the disruption of 
aquatic life movement. One commenter stated that aquatic life movement 
should be reviewed using hydraulic analyses performed for the range of 
flows expected after a basin is fully developed. Another commenter said 
that this general condition should require stream crossings to be 
constructed with bottom elevations below the normal substrate grade to 
avoid creating improper elevations or barriers that may substantially 
disrupt aquatic life movements. This commenter also recommended 
modifying this general condition to prohibit changes to stream 
morphology that could substantially interfere with aquatic life 
movements.
    In general, activities in waters of the United States authorized by 
NWPs are likely to result in some disruption of necessary life cycle 
movements of aquatic species, since we are authorizing discharges of 
dredged or fill material into those waters or structures or work in 
navigable waters of the United States. The word ``substantially'' 
supports the requirement that NWPs authorize only those activities that 
result in minimal individual and cumulative adverse effects on the 
aquatic environment, while recognizing that some disruption may occur. 
Some disruptions to aquatic life movement are measurable but not 
substantial, and may be acceptable during construction or during 
natural seasonal events such as floods, winter ice conditions, or 
during construction conducted during dry seasons. It is not 
practicable, appropriate, or necessary to conduct hydrologic analyses 
for each NWP activity that has the potential to disrupt life cycle 
movements, based on the projected development for a watershed. 
Compliance with this general condition is to be assessed on a case-by-
case basis, through available information or general knowledge of 
aquatic life movements. The current language in the general condition, 
especially the requirement to install culverts to maintain low flow 
conditions, is sufficient to ensure that stream crossings do not 
substantially disrupt aquatic life movements. This general condition, 
as well as the requirements of general condition 9, Management of Water 
Flows, will help ensure that NWP activities result only in minimal 
adverse effects to the movement of aquatic life via streams.
    The general condition is adopted, with the modification discussed 
above
    GC 3. Spawning Areas. We proposed to modify this general condition 
by removing language describing the general types of activities 
authorized by NWPs under sections 10 and 404.
    One commenter stated that not enough protection is provided since 
avoidance is only necessary to the maximum extent practicable. One 
commenter requested a definition of the term ``important spawning 
area.'' One commenter said that this general condition should not apply 
to NWPs 27 or 48 because shellfish seeding can provide and/or increase 
availability of spawning habitat.
    The removal of language describing the general applicability of 
NWPs will not affect protection of waters of the United States. This 
general condition applies to all NWPs. The phrase ``to the maximum 
extent practicable'' is necessary since some NWP activities may be 
time-sensitive and it is not possible to completely avoid activities in 
spawning areas. Since the NWPs authorize activities that have minimal 
adverse effects on the aquatic environment, some NWP activities may be 
conducted in spawning areas. Identification of important spawning areas 
is more appropriately addressed through either the regional 
conditioning processes or through the assessment of site-specific 
characteristics during the review of pre-construction notifications.
    The general condition is adopted as proposed.

[[Page 11155]]

    GC 4. Migratory Bird Breeding Areas. We proposed to modify this 
general condition to cover migratory birds generally, not just 
migratory waterfowl. We also proposed to remove language describing the 
general types of activities authorized by NWPs under sections 10 and 
404.
    One commenter said that the proposed modification would further 
restrict the use of the NWPs in wetlands. Another commenter asked how 
the change would affect non-waterfowl migratory birds in cases where 
their habitat requirements are different than the habitat requirements 
of waterfowl. One commenter fully supported the inclusion of migratory 
birds but requested a national no-work timing window in breeding areas 
from March 1 to July 15 to reduce uncertainty associated with the 
phrase ``to the maximum extent practicable.'' Another commenter 
indicated that this general condition should prohibit haying or grazing 
during the nesting season unless an emergency is declared. One 
commenter said that the proposed changes do not comply with the 
Migratory Bird Treaty Act and suggested that breeding areas should ``be 
avoided to the maximum extent practicable to assure minimal adverse 
impact on migratory birds and their breeding areas.'' This commenter 
asserted that authorized activities under any NWP must comply with the 
Migratory Bird Treaty Act. This commenter also urged expansion of the 
general condition to include protection of Important Bird Areas, which 
is an initiative by non-governmental entities to protect avian species 
of conservation concern. Another commenter said that this general 
condition should also state that the take of migratory birds, their 
eggs, nests, or parts is not allowed under the Migratory Bird Treaty 
Act without a permit.
    Aquatic resources provide a diverse variety of breeding habitats 
for a wide variety of migratory avian species. The replacement of 
``waterfowl'' with ``migratory birds'' will help reduce adverse impacts 
to aquatic habitats that are breeding areas of all migratory birds, not 
just waterfowl. It is not practicable to identify a uniform window of 
4\1/2\ months during which no activities in any habitat potentially 
used as breeding areas by migratory birds is allowed. Furthermore, 
breeding patterns and seasons vary by region. Time-of-year restrictions 
to protect breeding areas are thus more appropriately addressed through 
regional conditions imposed by division engineers or special conditions 
added to NWP authorizations by district engineers. It would not be 
appropriate to amend this general condition to prohibit haying or 
grazing during nesting seasons for migratory birds, since the Corps 
cannot enforce such a provision.
    The applicability of the Migratory Bird Treaty Act is addressed by 
Executive Order 13186, ``Responsibilities of Federal Agencies to 
Protect Migratory Birds,'' which was issued on January 10, 2001. This 
Executive Order does not apply to Department of the Army permits. 
Responsibility for complying with requirements of the Migratory Bird 
Treaty Act lies with the permittee, but this responsibility is 
independent of the Department of the Army permit. The provisions of the 
Migratory Bird Treaty Act are implemented by the U.S. Fish and Wildlife 
Service through the issuance of take permits under appropriate 
circumstances. It would not be appropriate to modify this general 
condition to include an explicit reference to Important Bird Areas, 
though to the extent that they are encompassed by the phrase, 
``waters...that serve as breeding areas for migratory birds,'' they are 
already covered. There is no Federal statute or authority for 
establishing these areas. We believe the general condition as written 
is adequate to protect migratory birds.
    The general condition is adopted as proposed.
    GC 5. Shellfish Beds. We proposed to remove language describing the 
general types of activities authorized by NWPs under sections 10 and 
404. We also proposed to add proposed NWP D, Commercial Shellfish 
Aquaculture Activities to the exception in this general condition.
    One commenter stated that ``areas of concentrated shellfish 
populations'' should be defined. One commenter said that the general 
condition is too restrictive and should instead provide the district 
engineer with discretion to prohibit an activity that may have a 
deleterious effect on shellfish.
    It would be inappropriate to define the term ``areas of 
concentrated shellfish populations'' at the national level. Such 
determinations should be made on a case-by-case basis, and take into 
account the characteristics of the shellfish species inhabiting the 
waters in which the NWP activity is located. Criteria for identifying 
areas of concentrated shellfish populations may vary by species and 
region. With the exception of NWPs 4 and 48, the NWPs should not 
authorize activities in concentrated shellfish beds to ensure that the 
activities authorized by NWPs result in minimal adverse effects on the 
aquatic environment. However, the district engineer may determine that 
this general condition does not apply in situations where a specific 
NWP activity will have little or no adverse effect on areas of 
concentrated shellfish populations. The reference to NWP D has been 
changed to NWP 48, to reflect the number assigned to that new NWP.
    This general condition is adopted with the modification discussed 
above.
    GC 6. Suitable Material. We proposed to modify this general 
condition by removing language describing the general types of 
activities authorized by NWPs under sections 10 and 404.
    One commenter suggested the general condition contain a list of 
suitable materials rather than a list of unsuitable materials. One 
commenter said that asphalt should be removed from the list of examples 
in the general condition because research has shown that cured 
asphaltic concrete is inert. One commenter asserted that the general 
condition does not go far enough to protect aquatic resources, and 
recommended changing the text to prohibit ``unacceptable chemical 
pollution'' instead of requiring material to be free of toxic 
pollutants in toxic amounts. This commenter also said that the use of 
substances such as creosote and pentachlorophenol in open waters should 
be prohibited. One commenter suggested that the general condition 
contain language that the fill material must be obtained from an upland 
source and require it to be sufficiently sized and shaped to resist 
erosion for normal and expected high flows.
    We do not agree that it is necessary to further define what 
constitutes ``suitable material'' for the purposes of this general 
condition. It is impractical to provide a comprehensive list of 
unsuitable materials. If there are questions concerning the suitability 
of a particular material, the permittee should contact the appropriate 
Corps district office and ask if that material is considered suitable 
for the purposes of this general condition. We continue to believe that 
``asphalt'' is an unsuitable material for use in waters of the United 
States. Use of substances such as creosote and pentachlorophenol is 
prohibited by general condition 6, Suitable Material, if they would be 
released into the environment in toxic amounts. It is inappropriate to 
limit fill material only to material obtained from uplands, since 
material excavated from aquatic environments may also be suitable. 
Other general conditions, such as general conditions 12 (Soil Erosion 
and Sediment Controls) and 9 (Management of Water Flows) address

[[Page 11156]]

requirements for withstanding water flows.
    This general condition is adopted as proposed.
    GC 7. Water Supply Intakes. We proposed to modify this general 
condition by removing language describing the general types of 
activities authorized by NWPs under sections 10 and 404. We also 
proposed to add the phrase ``or improvement'' to account for 
adjustments of the public water supply intake structure that may be 
necessary to maintain or improve levels of service.
    One commenter supported the proposed change. One commenter stated 
the general condition is overly restrictive and that the standard 
should be that activities that are likely to cause an impact to a 
public water supply intake should be prohibited. One commenter 
requested we define ``proximity.''
    This general condition is not too restrictive, given the importance 
of water supply intakes for public, commercial and industrial use. 
District engineers will determine on a case-by-case basis what is 
necessary to comply with this general condition. We believe the term 
``proximity'' is flexible enough to allow district engineers to 
determine that activities that will not adversely impact a public water 
supply intake are not in proximity to the intake. The term 
``proximity'' should be defined on a case-by-case basis, after taking 
into account site characteristics and the nature of the waterbody and 
activity.
    This general condition is adopted as proposed.
    GC 8. Adverse Effects from Impoundments. We proposed to modify this 
general condition by removing language describing the general types of 
activities authorized by NWPs under sections 10 and 404.
    One commenter recommended amending the language to prohibit the use 
of the NWPs in waters accessible to anadromous salmonids.
    While the Corps recognizes the importance of protecting aquatic 
species, including salmonids, it would not be practicable to prohibit 
use of NWPs in all waters accessible to anadromous salmonids. 
Restricting or prohibiting the use of NWPs in waters inhabited by 
anadromous salmon species is more appropriately addressed through 
regional conditions imposed by division engineers, or assertion of 
discretionary authority by district engineers.
    This general condition is adopted as proposed.
    GC 9. Management of Water Flows. We proposed to modify this general 
condition by simplifying the language to require that permittees 
maintain the pre-construction course, condition, capacity, and location 
of open waters to the maximum extent practicable. Exceptions to this 
requirement may be made if the primary purpose of the NWP activity is 
to impound water or if the activity benefits the aquatic environment.
    One commenter supported the proposed modification. One commenter 
supported the specific exception for impoundment activities, and two 
commenters supported the language that allows stream modifications if 
there are positive benefits to aquatic resources, such as for stream 
restoration projects. Two commenters supported the language requiring 
compliance only to the maximum extent practicable. One commenter said 
that the practicability considerations in this general condition should 
take into account sound engineering practices and project economics.
    The term ``practicable'' is defined in the ``Definitions'' section 
of the NWPs. Costs, as well as existing technology and logistics, are 
considered when making practicability determinations.
    One commenter stated that this general condition should not apply 
to ephemeral streams. One commenter said that this general condition 
should be modified to prohibit dewatering between October 1 and March 
31 to protect hibernating species in the substrate of waterbodies. 
Another commenter requested that the general condition retain language 
stating that detailed studies or monitoring would not be required to 
ensure compliance, and that the Corps would normally defer to local and 
state officials on the issue. Another commenter said that this general 
condition provides only limited value because it is qualitative and 
does not require specific written documentation and assurances 
regarding how the requirements are met. One commenter stated the 
requirements of this general condition are inappropriate and hazardous 
with respect to regulation of stormwater management facilities. One 
commenter said that this general condition should require NWP 
activities to accommodate the passage of large woody debris and stream 
bed load, especially for stream crossing projects.
    This requirement must apply to ephemeral streams, because they may 
carry substantial flow during storm events. Time-of-year restrictions 
on dewatering activities are more appropriately addressed through the 
regional conditioning process or through special conditions added to 
NWP authorizations by district engineers. We do not believe it is 
necessary to retain language stating that detailed studies or 
monitoring are not required to ensure compliance with this general 
condition, though it is not our intent to require such studies where 
compliance can be based on reasonable assumptions about flow. District 
engineers will use their judgment to determine whether a particular 
activity complies with this general condition. In order to ensure that 
this general condition does not unduly restrict the construction and 
maintenance of storm water management activities, we have clarified 
that it does not apply to activities that have a primary purpose of 
managing storm water flows. The issue of maintaining passage of large 
woody debris in streams is more appropriately addressed through 
regional conditions, in areas where changes to the movement of large 
woody debris may result in more than minimal adverse effects on the 
aquatic environment. Compliance with the requirements of this general 
condition will generally accommodate the movement of bed load along a 
stream channel.
    This general condition is adopted as proposed.
    GC 10. Fills Within 100-Year Floodplains. We proposed to modify 
this general condition by simply requiring permittees to comply with 
applicable state or local floodplain management requirements that have 
been approved by the Federal Emergency Management Agency (FEMA).
    Several commenters supported the general condition. One commenter 
said that the proposed change may cause a slight increase in case-by-
case review and assertion of discretionary authority. This commenter 
also requested that the Corps provide guidance to assure consistent 
implementation of this general condition. A number of commenters stated 
that local governments are better able to implement the FEMA program. 
Two commenters favored the proposed change because it avoids 
duplication with other regulatory agencies, and another commenter 
stated that it is a simple and straightforward requirement. One 
commenter said that the general condition will create an incentive to 
design projects that reduce impacts to waters of the United States to 
qualify for an expedited NWP authorization.
    We do not agree that this general condition will increase case-by-
case reviews and the number of times discretionary authority is 
exercised. The version of this general condition that was adopted in 
2002 prohibited the use of NWPs 39, 40, 42, and 44 to authorize

[[Page 11157]]

permanent, above-grade fills in waters of the United States within 
mapped floodways. Those activities required authorization by regional 
general permits or individual permits. The general condition adopted 
today allows those activities to be authorized by NWP, provided the 
activities comply with applicable state and local floodplain management 
requirements and the district engineer determines, after reviewing the 
pre-construction notification, that the individual and cumulative 
adverse effects on the aquatic environment and other public interest 
review factors are minimal. We continue to support efforts that reduce 
duplication with other agencies.
    Many commenters objected to the general condition and requested 
that the Corps retain the previous floodplain prohibitions for NWPs 39, 
40, 42 and 44. They said that the Corps has an independent obligation 
and role in protecting waters of the United States. One commenter 
stated no fills should be permitted within the 100-year floodplain in 
specific watersheds. One commenter said that employing the use of 
discretionary authority on a case-by-case basis will produce 
uncertainty for prospective permittees.
    We do not believe it is appropriate to use the Section 404 program 
to restrict activities in flood plains over and above the requirements 
of FEMA-approved state and local floodplain management programs, except 
in specific cases where the district engineer determines that an 
activity would result in more than minimal adverse effects. This 
general condition, in conjunction with reviews of pre-construction 
notifications, will provide sufficient protection to floodplain values 
that is appropriate to the scope of the Corps regulatory authorities 
and implementing regulations. This general condition will also support 
the application of FEMA-approved state or local floodplain management 
requirements that are established to reduce flood hazards. Restricting 
or prohibiting development of 100-year floodplains is more 
appropriately addressed through the land use planning and zoning 
authorities granted to state and local governments. The Corps considers 
impacts to floodplains and flood hazards during its review of pre-
construction notifications. If the proposed activity will result in 
more than minimal adverse effects to floodplains or increases in flood 
hazards, the district engineer will exercise discretionary authority 
and require an individual permit for the proposed activity.
    We disagree that the pre-construction notification review process 
will produce more uncertainty for permittees. If the proposed work will 
have minimal adverse effects on the aquatic environment and other 
public interest review factors, such as floodplain values and flood 
hazards, the activity can be authorized by the applicable NWP. One 
benefit of the modified general condition is that it applies to all NWP 
activities, not just NWPs 39, 40, 42, and 44.
    One commenter indicated that FEMA regulations are only designed to 
assure development is reasonably safe from flooding not to protect the 
quality and quantity of downstream waterways or the aquatic resources 
associated with the floodplain and downstream water segments. Two 
commenters stated that floodplain managers will not receive pre-
construction notifications and therefore they will not be aware of 
floodplain development activities because they will no longer receive 
public notices for these individual permits. Two commenters said that 
the National Flood Insurance Program standards are insufficient to 
minimize flood hazard and floodplain impacts. One commenter argued that 
the Corps should strengthen and not weaken the floodplain protections 
that are outlined in 33 CFR 320.4(l)(2) and Executive Order 11988, 
Floodplain Management. One commenter concluded that the NWPs will have 
more than minimal impacts because of the proposed modification of this 
general condition.
    When reviewing pre-construction notifications, district engineers 
will assess adverse effects to the aquatic environment, including 
impacts to aquatic resources located within 100-year floodplains and 
downstream waterways. General condition 9 requires permittees, to 
maintain to the maximum extent practicable, the pre-construction 
course, condition, capacity, and location of open waters. State water 
quality certifications ensure that NWPs do not authorize activities 
that degrade downstream water quality. Floodplain development 
activities are already thoroughly reviewed by state and local 
governments under their planning and zoning authorities, especially in 
those floodplains that consist mostly of uplands, where development is 
more likely to occur. The Federal Emergency Management Agency is 
designated through E.O. 11988 as the lead Federal agency for floodplain 
management, and we are deferring to their program requirements for 
floodplain management. The proposed modification of this general 
condition complies with 33 CFR 320.4(l)(2). The modification of this 
general condition will not cause the NWP program to result in more than 
minimal individual and cumulative adverse environmental effects.
    One commenter said that this general condition should be modified 
to require documentation of compliance with FEMA minimum standards by a 
licensed professional engineer, and require consultation with resource 
agencies. One commenter suggested modifying this general condition to 
require prospective permittees to demonstrate they have applied the 
National Environmental Policy Act process and to justify ``no 
reasonable option'' exists before filling within the base floodplain. 
One commenter noted that not all floodplains have been mapped and as 
such they do not fall under authority of a local government. Two 
commenters requested clarification on how the general condition will be 
applied when a 100-year floodplain is identified by an engineering 
study but FEMA approved management requirements are absent.
    Requiring documentation of compliance with FEMA-approved standards 
is unnecessary for the purposes of the NWPs, because such requirements 
are more appropriately addressed through state and local construction 
authorizations. If a separate National Environmental Policy Act process 
is applicable for a particular development activity, then the lead 
Federal agency will conduct that process. For the purposes of the NWPs, 
compliance with the National Environmental Policy Act is achieved 
through the decision documents issued for each NWP. This general 
condition does not apply to 100-year floodplains where FEMA-approved 
state or local floodplain management requirements have not been 
established. In general, such floodplains have not been mapped. In such 
areas, district engineers will review pre-construction notifications 
and assess the adverse effects on floodplains and flood hazards to the 
extent practicable, and add special conditions as appropriate.
    Two commenters requested clarification of the mechanism and 
documentation necessary to complete the public interest evaluation. One 
commenter asked if this process is expected to increase the amount of 
time needed to complete the review of a pre-construction notification.
    The general condition simply requires permittees to comply with 
applicable FEMA-approved state or local floodplain management 
requirements. It does not require separate documentation to be provided 
to the

[[Page 11158]]

district engineer with a pre-construction notification. The 
modification of this general condition is not expected to cause an 
increase in the amount of time to prepare or review a pre-construction 
notification.
    This general condition is adopted as proposed.
    GC 11. Equipment. We proposed to modify the general condition to 
include mudflats, in addition to wetlands.
    One commenter suggested changing this general condition to require 
heavy equipment to provide low ground pressure, to further minimize 
soil disturbance.
    We do not agree that this change is necessary, because the general 
condition states that other measures can be used to minimize soil 
disturbance. This general condition is adopted as proposed.
    GC 12. Soil Erosion and Sediment Controls. We did not propose any 
changes to this general condition.
    One commenter expressed support for this general condition, stating 
that it provides sufficient flexibility to address emergency 
situations, public safety or infrastructure repairs, or situations 
where it is necessary to work in higher water conditions in order to 
adjust restoration design to meet on-site hydrologic and fluvial 
geomorphic conditions. One commenter said that the term ``low-flow'' is 
not adequately defined, and therefore it provides inadequate protection 
of the aquatic environment. One commenter suggested modifying this 
general condition to require permittees to follow state and/or local 
storm water sediment control requirements.
    Determinations of low-flow conditions will be made by district 
engineers on a case-by-case basis. We believe the condition provides 
sufficient protection for the aquatic environment. Appropriate soil 
erosion and sediment control measures may be established by different 
levels of government or different agencies, so it would be more 
effective to retain the present language. Such requirements are 
independently applicable in any case.
    This general condition is adopted as proposed.
    GC 13. Removal of Temporary Fills. We proposed to modify this 
general condition by replacing the phrase ``their preexisting 
elevation'' with ``pre-construction conditions.''
    One commenter supported the proposed change. Four commenters 
objected to the proposed change, stating that the language implies that 
the site needs to be revegetated or mitigated. One commenter suggested 
defining ``temporary'' as less than six months. One commenter 
recommended modifying the text of this general condition to recommend 
removal of temporary fills during dewatered or low-flow conditions. 
Another commenter said that this general condition should require 
filled areas to be restored, as much as possible, to the same 
elevation, contours, grade, substrate, vegetative composition, 
hydrology, and/or geomorphology.
    We agree that the proposed modification can be difficult to 
implement and enforce. For example, the proposed language implies that 
to return an area inhabited by trees to its pre-construction 
conditions, trees would have to be planted. Therefore, we have changed 
the phrase ``pre-construction conditions'' to ``pre-construction 
elevations'' to require that the permittee return the affected area to 
its previous elevations. We have also added a new sentence that 
requires the permittee to revegetate the affected area, as appropriate. 
A temporarily filled area that was previously vegetated must be planted 
with appropriate plant materials and allowed to grow back after the 
temporary fill is removed and the pre-construction elevations restored. 
In some cases, such as stream channels, it may be sufficient to simply 
remove temporary fills to satisfy this general condition.
    The general condition is adopted with the modifications discussed 
above.
    GC 14. Proper Maintenance. We did not propose any changes to this 
general condition.
    One commenter stated the Corps should require that a new stream 
crossing be constructed when a crossing requires two or more debris 
removal requests within 10 years. One commenter said that the general 
condition should be modified to require maintenance as necessary to 
ensure minimal impacts and public safety. One commenter stated that 
long-term maintenance of structures and/or fills should be evaluated 
during the permit process and authorized in the permit authorizing 
construction.
    We disagree with these suggested changes. We cannot condition the 
NWPs to require a permittee to install a new stream crossing if debris 
accumulates at a certain frequency. Activities authorized by NWPs must 
already result in minimal adverse effects on the aquatic environment, 
and it is not necessary to add such a requirement to this general 
condition. Maintenance of authorized activities may be conducted either 
under the Clean Water Act exemption at Section 404(f)(1)(B) or under 
NWPs 3, 31, or 35.
    The general condition is adopted as proposed.
    GC 15. Wild and Scenic Rivers. We did not propose any changes to 
this general condition.
    One commenter recommended expanding the prohibition to state wild 
and scenic and recreational river systems, and to any activities in 
rivers subject to the review of the National Park Service. One 
commenter expressed support for the general condition and recommended 
it be modified to require that the Federal agency with direct 
management responsibility for the river be contacted regarding the 
proposed use of an NWP and that the Corps receive a written statement 
from that agency regarding the effects the activity will have on the 
river.
    State wild and scenic rivers are more appropriately addressed 
through state laws, regulations, and programs. The general condition 
contains language requiring the appropriate Federal agency with direct 
management responsibility for the river to determine in writing that 
the proposed activity will not adversely affect that river's 
designation. The Corps will not issue an NWP verification for an 
activity in a National Wild and Scenic River without the appropriate 
documentation.
    This general condition is adopted without change.
    GC 16. Tribal Rights. We did not propose any changes to this 
general condition. One commenter asked how the Corps will determine 
whether tribal rights are impacted, and if a tribal right is impaired.
    We cannot define a specific threshold to be used to determine 
compliance with this general condition. District engineers make these 
determinations on a case-by-case basis, through appropriate 
consultations with Indian tribes.
    This general condition is adopted without change.
    GC 17. Endangered Species. We proposed to modify this general 
condition by stating that no activity is authorized by NWP, if it ``may 
affect'' a listed species or critical habitat unless Section 7 
consultation has been completed. We also proposed to state that 
district engineers will make ``may affect'' or ``no effect'' 
determinations and notify prospective permittees within 45 days of 
receipt of a complete pre-construction notification.
    Several commenters supported the proposed modifications of this 
general condition. One commenter recommended specifying the 
documentation that should be submitted with the pre-construction 
notification in circumstances when no listed species or

[[Page 11159]]

critical habitat will be affected. Two commenters requested that the 45 
day time limit for notifying applicants of an effect determination be 
reduced to 30 days. One commenter requested clarification on whether 
the Corps has 45 days from submittal of the pre-construction 
notification or 45 days from receipt of a complete application, to 
notify the applicant of a ``may effect'' determination, and whether 
this will result in extra time to complete an NWP.
    This general condition specifies that permittees shall notify the 
Corps if any listed species or critical habitat might be affected or is 
in the vicinity of the project. If this does not apply, no additional 
information is required to be submitted. We believe that 45 days is a 
reasonable and practical deadline, and it is consistent with the pre-
construction notification time frame. The general condition states that 
the Corps will notify the applicant within 45 days of receipt of a 
complete pre-construction notification. However, if the applicant has 
provided notification to the Corps of possible effects on listed 
species or critical habitat, the applicant must wait for a Corps 
determination of either ``may affect'' or ``no effect'', even if this 
takes more than 45 days.
    Several commenters expressed concern that requirement for Section 7 
consultation in the absence of a ``no effect'' determination would 
delay processing of pre-construction notifications, and that the 
requirement to wait for the Corps ``no effect'' determination increases 
the administrative burden and uncertainty for applicants. Several 
commenters recommended that, if an applicant does not hear from the 
Corps within 45 days, the applicant may treat the lack of response as a 
``no effect'' determination and proceed with the NWP activity. Other 
commenters stated that the open-ended period for the Corps to resolve 
concerns about species could result in NWPs taking much longer to issue 
than 45 days.
    The 45-day period is necessary to allow district engineers to 
review proposed NWP activities that require notification because 
federally-listed species or critical habitat might be affected or are 
in the vicinity of the project (see 33 CFR 330.4(f)(2)). During that 45 
day period, the district engineer will determine if the proposed 
project will have ``no effect'' or ``may affect'' listed species or 
critical habitat. If the proposed activity may affect listed species or 
critical habitat, the prospective permittee cannot begin the activity 
until the Endangered Species Act requirements have been satisfied, even 
if 45 days have passed since the district received a complete pre-
construction notification. Many ``no effect'' determinations do not 
take the full 45 days. We acknowledge that some NWP verification 
requests may take longer than 45 days, but the Corps is legally 
obligated to comply with the Endangered Species Act. The ESA requires 
Section 7 consultation for any activity authorized by a Federal agency 
unless that agency determines that the activity will have ``no effect'' 
on listed species. In cases where the permittee has determined that no 
listed species or critical habitat are in the vicinity of the project 
or might be affected by it, and thus has not notified the Corps of any 
possible effects, then (but only in such cases) the permittee does not 
have to wait for further confirmation of ESA compliance from the Corps.
    One commenter stated that the wording in the general condition 
differs from that in the Endangered Species Act and in the existing 
NWPs, as it applies the standard of ``may affect'' rather than 
``takings'' of listed species. In addition, without clear guidance, the 
``may effect'' standard is likely to be applied inconsistently from 
district to district.
    Section 7 of the Endangered Species Act states that Federal 
agencies must consult with the U.S. Fish and Wildlife Service or the 
National Marine Fisheries Service if an activity ``may affect'' listed 
species or habitat. This language is virtually the same as that in the 
2002 NWPs, including the requirement that a permittee cannot begin work 
until notified by the Corps if the project might affect a listed 
species or critical habitat.
    One commenter recommended clarification of the terms ``might be 
affected'' and ``may affect''.
    As stated in the text of the general condition, the district 
engineer determines if an activity ``may affect'' listed species or 
critical habitat. A non-federal permittee must notify the district 
engineer if listed species or critical habitat might be affected, so 
the district engineer can determine if the activity ``may affect'' the 
habitat or species. We have modified the second sentence of paragraph 
(b) of this general condition by changing the word ``may'' to ``might'' 
in order to clearly distinguish the formal determination by the Corps 
(``may affect'' or ``no effect'') from the requirement on the applicant 
to notify the Corps where there is sufficient cause for concern to 
warrant a formal determination. This requirement applies if habitat or 
species is in the vicinity of the project or might be affected by it, 
or if the project is located in the habitat.
    One commenter recommended modifying this general condition to 
exempt activities that occur in the vicinity of free-swimming species 
from the pre-construction notification requirement, provided the 
activities include reasonable efforts to avoid physical contact with 
listed species.
    Any time a proposed NWP activity has the potential to affect listed 
species or critical habitat, the Corps must evaluate it and make a ``no 
effect'' or ``may affect'' determination. This requirement cannot be 
waived for free-swimming species, although efforts taken to avoid 
physical contact with listed species might result in a determination 
that the activity will have ``no effect'' on that species. Even in the 
case of a ``may effect'' determination, such efforts may help to 
expedite Section 7 consultation with the Services.
    One commenter suggested clarifying that the work or activities that 
are prohibited from commencing until the Corps has provided 
notification of compliance with the Endangered Species Act only refers 
to work in waters of the United States, not upland areas. Several 
commenters stated that language requiring applicants to notify the 
Corps if listed species or habitat is in the ``vicinity'' of the 
activity creates uncertainty and should be eliminated.
    District engineers must evaluate effects on listed species or 
habitat of any activity that is within the Corps' scope of analysis 
under the Endangered Species Act. This might include some areas outside 
of waters of the United States. However, it is correct that a Section 
404 permit is only required for discharges of dredged or fill material 
into waters of the United States. The Corps has no authority to 
prohibit activities that do not involve such discharges. However, an 
activity in an upland area that adversely affects a listed species may 
make it more difficult for the Corps to later determine that an 
associated discharge of dredged or fill material into waters of the 
United States has ``no effect'' and/or may complicate any Section 7 
consultation that is subsequently required. While defining the 
``vicinity'' of an activity might be difficult, the Corps believes it 
must retain the ability to evaluate the effects of projects on species 
that are nearby, mobile, or otherwise could be affected. Defining the 
appropriate vicinity will also depend on the natural history of the 
particular species. If there is any doubt, permittees should contact 
the Corps or the local office of the USFWS or NMFS for guidance.
    A couple of commenters stated that, as the U.S. Fish and Wildlife 
Service is

[[Page 11160]]

allowed to comment on coal mine permit applications during the Surface 
Mining Control and Reclamation Act (SMCRA) process, there is no need 
for consultation associated with Corps permits for coal mining.
    Section 7(a)(2) of the Endangered Species Act requires Federal 
agencies to consult with the Services to ensure that they are not 
undertaking, funding, permitting, or authorizing actions likely to 
jeopardize the continued existence of listed species or destroy or 
adversely modify designated critical habitat. This responsibility 
cannot be waived, unless another Federal agency is the lead agency for 
the project and conducts the required consultation. In cases where 
SMCRA is administered by a state agency, the Corps is required to 
conduct the necessary Federal consultation. Information obtained during 
other environmental reviews, including any comments made by the 
Services during the SMCRA process, is used by the Corps in evaluating 
the NWP.
    One commenter stated that neither applicants nor the Corps are 
adequately trained to make endangered species determinations and 
therefore the Corps should institute formal consultation for each 
proposed NWP activity. In addition, pre-construction notification 
thresholds should be eliminated or reduced so that applicants are not 
put in the position of deciding whether or not their project has 
impacts on protected species.
    Section 7 consultation is a cooperative effort involving affected 
parties engaged in analyzing effects posed by proposed actions on 
listed species or critical habitat(s). Many NWP activities result in 
``no effect'' to listed species or critical habitat, so it is not 
necessary to conduct formal consultation for each NWP activity. The 
determination of jeopardy/no jeopardy is based on a careful analysis of 
the best available scientific and commercial data. The Corps is 
engaging with the Services on programmatic Section 7 consultation for 
the NWPs, but project-specific evaluations and consultation are still 
required to ensure that permitted activities do not jeopardize the 
continued existence of a listed species or critical habitat. The pre-
construction notification thresholds for NWPs provide a balance between 
efficient authorization of activities that have minimal adverse 
environmental impact, and environmental protection, including 
protection of listed species and critical habitat. The requirement for 
prospective permittees to notify the district engineer if a listed 
species or critical habitat might be affected or is in the vicinity of 
the project provides a relatively low bar for notification to the Corps 
of potential effects, while not bogging down the NWP process in cases 
where the applicant has performed due diligence and determined that 
there are no listed species or critical habitat in the vicinity of the 
project.
    One commenter recommended that the general condition specify that 
the U.S. Fish and Wildlife Service or National Marine Fisheries Service 
has to make jeopardy determinations and that the Corps will initiate 
any required Section 7 consultation within 45 days of receiving a 
complete pre-construction notification.
    We do not agree that it is necessary to modify this general 
condition to state that the U.S. Fish and Wildlife Service or National 
Marine Fisheries Service will make jeopardy determinations. Those 
determinations will be made when they issue biological opinions in 
response to a request for Section 7 consultation. The purpose of this 
general condition is to ensure compliance with the requirements of the 
Endangered Species Act, and to provide timely notification to 
prospective permittees, so that they do not begin work until the 
requirements of Section 7 have been fulfilled.
    One commenter recommended that the prohibition on activities that 
adversely affect federally listed species should also apply to official 
state-listed endangered or threatened species.
    The Endangered Species Act only applies to Federally-listed 
species. States may impose their own restrictions or prohibitions on 
activities that affect state-listed species.
    One commenter suggested adding the word ``negatively'' to the 
second sentence of paragraph (a), to limit it to those activities that 
may negatively affect listed species or critical habitat. One commenter 
stated that this general condition should not apply to shellfish 
seeding activities authorized by NWPs 27 or 48, since traditional 
shellfish seeding activities do not negatively affect listed species or 
their habitat.
    The term ``may affect'' comes from the ESA and is the statutory 
criterion for determining when Section 7 consultation is required. 
Changing this language to only apply to negative effects would not be 
consistent with the Corps' responsibilities under the Endangered 
Species Act. The general condition applies to all NWPs, to the extent 
that they have the potential to affect listed species or critical 
habitat. If an activity would not have an affect on listed species, no 
Section 7 consultation is required. The notification requirements in 
this general condition facilitate the Corps' compliance with its 
Section 7 obligations.
    One commenter stated that many activities eligible for NWPs are 
covered under programmatic Section 7 consultations. Therefore, it 
should be clarified that if a project falls within the scope of a 
program that has been reviewed and approved under Section 7 
consultation, then individual consultation is not required. One 
commenter recommended modifying this general condition to clarify the 
responsibilities of Federal permittees that use the NWPs.
    If Section 7 consultation has been completed for an activity, 
either programmatically or individually, the activity can be authorized 
under NWPs. This is implied in the statement that ``no activity is 
authorized under any NWP which ``may affect'' a listed species or 
critical habitat, unless Section 7 consultation addressing the effects 
of the proposed activity has been completed.'' We do not believe 
additional clarification is necessary. When submitting a pre-
construction notification for an activity that may affect a listed 
species, the applicant should indicate if Section 7 consultation has 
already been conducted, the Federal agency conducting the consultation, 
and the outcome of the consultation.
    We have added a new paragraph to this general condition (paragraph 
(b)), to clarify that Federal agencies are to follow their own 
procedures for complying with the requirements of the Endangered 
Species Act, which is consistent with 33 CFR 330.4(f)(1). This 
paragraph also requires Federal permittees to provide appropriate 
documentation to the district engineer to demonstrate compliance with 
those requirements.
    This general condition is adopted, with the modifications discussed 
above.
    GC 18. Historic Properties. We proposed to modify this general 
condition by removing the reference to Appendix C of 33 CFR part 325 
and stating that the district engineer will comply with the current 
procedures for addressing the requirements of Section 106 of the 
National Historic Preservation Act. We also proposed to modify the 
general condition to state that district engineers will notify 
prospective permittees within 45 days of receipt of a complete pre-
construction notification whether section 106 consultation is required.
    One commenter agreed with the 45-day timeline for a Corps response. 
One commenter stated that the general condition should specify what 
documentation should be submitted with the pre-construction 
notification.

[[Page 11161]]

One commenter stated that it should be the applicant's responsibility, 
not the Corps', to find out if section 106 consultation is required.
    The general condition states that, for activities that may have the 
potential to cause an effect on listed, eligible, or potentially 
eligible properties, the pre-construction notification must state which 
historic properties may be affected by the proposed work or include a 
map indicating the location of the project and the location of the 
historic properties. The Corps is responsible for making determinations 
and findings for the purposes of section 106. We have modified 
paragraph (a) of this general condition to clarify that NWP activities 
are not authorized until the requirements of section 106 have been 
satisfied, in cases where the district engineer determines that the NWP 
activity has the potential to cause an effect on a historic property. 
If the applicant has provided notification to the Corps of possible 
effects on historic properties the applicant must wait for a Corps 
determination of either ``potential to cause effects'' or ``no 
potential to cause effects'' even if this takes longer than 45 days.
    Several commenters expressed concerns about the delay in NWP 
authorization resulting from the 45-day requirement and suggested that 
authorization be automatically granted if the Corps does not notify the 
applicant within 45 days.
    The 45 day period is necessary to allow district engineers to 
adequately review those activities that may affect eligible properties. 
During that 45 day period, the district engineer will determine if the 
proposed project has the potential to cause effects on historic 
properties. If so, the prospective permittee cannot begin the activity 
until section 106 consultation has been completed, even if 45 days has 
passed since the district received a complete pre-construction 
notification (see 33 CFR 330.4(g)(2)). However, many determinations do 
not take the full 45 days. The Corps cannot waive section 106 
compliance by allowing the applicant to assume ``no potential to cause 
effects'' if the Corps has not been able to respond within 45 days. 
Therefore, this provision has not been changed. In cases where the 
permittee has determined there are no historic properties for which the 
activity has the potential to cause effects, and has thus not notified 
the Corps of such properties (but only in such cases) the permittee 
does not have to wait for further confirmation of NHPA compliance from 
the Corps.
    One commenter stated that the Corps should eliminate the language 
that requires an applicant to notify the Corps if an activity may 
affect any property which the ``prospective permittee has reason to 
believe may be eligible for listing,'' as the Corps is required only to 
take into account the effect of an undertaking on property that is 
included in or eligible for inclusion in the National Register. Two 
commenters recommended modifying this general condition to require a 
preliminary survey of the project area for the purposes of section 106 
compliance.
    The purpose of the notification requirement in this general 
condition is to provide the district engineer with the opportunity to 
consider effects to historic properties, in cases where pre-
construction notification is not required by the NWP itself. Since the 
definition of ``historic property'' includes properties that are 
eligible for listing in the National Register of Historic Places, and 
the Federal agencies are required to carry out appropriate 
identification efforts, we believe that the concept in the proposed 
general condition is appropriate. We have modified this paragraph to 
provide further clarification of the role of the non-Federal permittee, 
and have added a sentence that states that district engineers are 
responsible for making final effect determinations. The notification 
requirement helps the Corps carry out those identification efforts. We 
have included a sentence in paragraph (c) to clarify that district 
engineers are to make reasonable and good faith efforts to identify 
historic properties when reviewing proposed NWP activities. We do not 
believe it is necessary to require a preliminary survey of the project 
area with the pre-construction notification. District engineers will 
review available information to determine if further investigations are 
warranted for section 106 compliance.
    One commenter recommended that programmatic consultation and 
agreements should be allowed for section 106. One commenter stated that 
the Corps should initiate programmatic consultation on each NWP before 
reissuing them.
    Programmatic agreements conducted in accordance with 36 CFR 
800.14(b), meet the requirements of this general condition. We do not 
believe programmatic consultation on each NWP in advance is necessary 
or practical. Consultation will be conducted as appropriate for all 
activities that may affect historic properties listed on, eligible, or 
potentially eligible for listing in the National Register of Historic 
Places.
    One commenter suggested clarifying that the work or activities that 
are prohibited from commencing until the Corps has provided 
notification of compliance with section 106 only refers to work in 
waters of the United States, not upland areas outside of this area. One 
commenter stated that this general condition shifts the burden of 
determining ``no effect'' on historic properties from applicants and 
the Corps to other agencies, which could delay authorization. One 
commenter recommended modifying this general condition to clarify the 
responsibilities of Federal permittees that use the NWPs.
    District engineers must evaluate effects on eligible historic 
properties that are within the Corps' scope of analysis under section 
106. This might include some areas outside of waters of the United 
States. However, it is correct that a Section 404 permit is only 
required for discharges of dredged or fill material into waters of the 
United States. The Corps has no authority to prohibit activities that 
do not involve such discharges. However, an activity in an upland area 
that adversely affects a historic property may make it more difficult 
for the Corps to later determine that a Section 106 consultation is not 
required for an associated discharge of dredged or fill material into 
waters of the United States, and/or may complicate any Section 106 
consultation that is subsequently required. The district engineer is 
responsible for making determinations and findings under section 106. 
This process has not changed. We have added a new paragraph (b) to this 
general condition, which states that Federal permittees should follow 
their own procedures for complying with the requirements of section 
106.
    One commenter expressed concerns that the general condition lacks 
clarity about who is responsible for identification and evaluation of 
historic properties and determination of effects, how such 
identification will be accomplished, and the nature of consultation 
required. This commenter suggested revised wording for the general 
condition and recommended that the Corps include a definition for 
historic properties. We agree that the wording proposed by this 
commenter clarifies responsibilities and procedures and have revised 
the general condition accordingly. We have also added a definition for 
historic property in the ``Definitions'' section for the NWPs.
    This commenter also noted that the Corps'' historic properties 
regulations

[[Page 11162]]

are not consistent with Advisory Council on Historic Preservation's 
regulations at 36 CFR part 800 and are not approved by the Council. As 
noted by the commenter, the Corps and the Council are currently 
involved in discussions to resolve the differences between the Corps' 
procedures and the Council's regulations at 36 CFR part 800. Pending 
the outcome of those discussions, the reference in this general 
condition to the Corps current procedures means the Corps ``Revised 
Interim Guidance for Implementing Appendix C of 33 CFR Part 325 with 
the Revised Advisory Council on Historic Preservation's Regulations at 
36 CFR Part 800'' dated April 25, 2005.
    The use of the interim guidance, as well as the Corps Regulatory 
Program procedures for the protection of historic properties at 
Appendix C of 33 CFR Part 325, are provisional measures to comply with 
the requirements of Section 106 of the National Historic Preservation 
Act until updated alternative procedures that are tailored to the Corps 
Regulatory Program can be promulgated through the appropriate 
processes.
    This general condition is adopted with the modifications discussed 
above.
    GC 19. Designated Critical Resource Waters. We proposed to modify 
this general condition to eliminate provisions that duplicate the 
requirements of other general conditions.
    One commenter recommended adding proposed NWPs E and F to paragraph 
(a) of this general condition, to prohibit the use of those permits to 
authorize discharges of dredged or fill material in waters of the 
United States for activities in, or directly affecting, critical 
resource waters.
    We have modified paragraph (a) of this general condition to include 
NWPs E and F (now designated as NWPs 49 and 50), since those activities 
have the potential to result in more than minimal adverse effects to 
designated critical resource waters and their adjacent wetlands. These 
mining activities may be authorized by individual permits or regional 
general permits in these waters.
    One commenter stated that the Corps should not prohibit the use of 
an NWP in critical resource waters if the agency managing those 
critical resource waters approves those activities. This commenter 
recommended requiring pre-construction notification for all activities 
in critical resource waters and conducting coordination with the 
managing agency. Another commenter stated that limiting the use of NWPs 
in designated critical resource waters should be done through regional 
conditions and coordination with state and local agencies and resource 
agencies, instead of a general condition.
    Paragraph (a) of this general condition lists those NWPs that have 
a greater potential to result in more than minimal adverse effects on 
the aquatic environment, if they involve discharges of dredged or fill 
material into those designated critical resource waters, or their 
adjacent wetlands. Therefore, it would be more appropriate to review 
those activities through the individual permit process, with agency 
coordination, or authorize those activities through regional general 
permits. The designated critical resource waters listed in this general 
condition are generally considered to be important to the national 
public interest. Proposed activities involving discharges of dredged or 
fill material into those waters and their adjacent wetlands warrant 
more thorough review, through either the pre-construction notification 
process or other forms of Department of the Army authorization, such as 
individual permits.
    One commenter suggested that in order to provide consistency with 
state definitions, a definition for ``natural heritage sites'' should 
be included in the text of this general condition.
    Natural heritage sites are defined and designated by state 
agencies. The criteria and processes for designating state natural 
heritage sites vary from state to state. District engineers will 
utilize the appropriate state designations when implementing this 
general condition. Therefore, we do not believe that it is appropriate 
to provide a definition of state natural heritage sites at the national 
level.
    One commenter suggested that source waters used for drinking water 
or ground water recharge should be included in the definition of 
critical resource water. The same commenter suggested that there should 
be no provision for the use of discretionary authority regarding 
discharges of dredged or fill material into designated critical waters.
    Concerns regarding impacts to sources for drinking water and ground 
water recharge are more appropriately addressed through regional 
conditioning of the NWPs or review of pre-construction notifications 
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 will exercise discretionary authority and 
require individual permits for activities proposed in high value waters 
that will result in more than minimal adverse effects on the aquatic 
environment.
    One commenter said that critical resource waters should include the 
following areas: watersheds of nationally-designated wild and scenic 
rivers, waters within wilderness areas, national parks and wildlife 
refuges, and all waters with similar state designations. Another 
commenter recommended adding waters designated as National Monuments 
and National Historic Sites to the categories of waters in this general 
condition. This commenter also said that vernal pools, bogs and fens, 
native wet prairie, forested wetlands, eelgrass beds, and coral reefs 
should also be considered as designated critical resource waters 
subject to this general condition.
    The use of NWPs in components of the National Wild and Scenic River 
System or designated study rivers is addressed by general condition 15, 
Wild and Scenic Rivers. Restricting or prohibiting the use of NWPs in 
waters of the United States within wilderness areas, national parks, 
national monuments, national historic sites, national wildlife refuges, 
or state-designated wilderness, parks, or refuges, is more 
appropriately addressed through the regional conditioning process. In 
areas where vernal pools, bogs and fens, native wet prairie, forested 
wetlands, eelgrass beds, and coral reefs warrant greater levels of 
protection, division engineers may impose regional conditions on NWPs 
to restrict or prohibit their use in those waters. Division engineers 
will determine whether regional conditions are necessary to ensure that 
the NWPs authorize only activities resulting in minimal individual and 
cumulative adverse effects on the aquatic environment in those areas.
    This general condition is adopted with the modification discussed 
above.
    GC 20. Mitigation. We proposed several modifications to this 
general condition, such as requiring compensatory mitigation for NWP 
activities that require a pre-construction notification and result in 
the loss of greater than \1/10\ acre of wetlands. We also proposed to 
add a provision stating that compensatory mitigation may be required 
for activities that result in permanent adverse effects to certain 
aquatic resource functions and services.
    Several commenters requested clarification as to whether 
compensatory mitigation is required only for permanent losses of waters 
of the United States, or whether it is also required for temporary 
impacts to those waters. A commenter asked if compensatory mitigation 
for stream bed

[[Page 11163]]

impacts should be quantified as linear feet or acres. A couple of 
commenters said that district engineers should be able to require 
compensatory mitigation for losses of other types of waters of the 
United States, such as streams. One commenter expressed support for 
watershed-based compensatory mitigation. One commenter said that it was 
unclear how the proposed compensatory mitigation rule published in the 
March 28, 2006, issue of the Federal Register (71 FR 15520) would apply 
to the NWP program. One commenter said that preservation should not be 
used as compensatory mitigation.
    Compensatory mitigation is required only for permanent losses of 
waters of the United States, or for permanent adverse effects to 
aquatic resource functions (such as those described in paragraph (h) of 
this general condition). The restoration of waters of the United States 
where there were temporary fills and other impacts during the 
construction activity is not considered compensatory mitigation. Those 
actions are addressed by general condition 13. The unit of measure used 
to quantify stream bed impacts and compensatory mitigation is at the 
discretion of the district engineer. Compensatory mitigation may be 
required for losses of streams and other types of waters of the United 
States, to ensure that the NWP activity results in minimal individual 
and cumulative adverse effects on the aquatic environment. To clarify 
this concept, we have added a new paragraph (d) to this general 
condition, which states that the district engineer may require 
compensatory mitigation for losses of streams and other waters of the 
United States. When a final compensatory mitigation rule becomes 
effective, it will apply to all types of Department of the Army 
permits, including the NWPs. We are in the process of reviewing 
comments on the proposed rule and developing the final rule, in 
cooperation with the Environmental Protection Agency. Preservation of 
aquatic resources is an important form of compensatory mitigation which 
is appropriate in some cases to protect and maintain aquatic resource 
functions and services in the watershed. All compensatory mitigation 
should be determined, to the extent practicable, using a watershed 
approach that considers watershed needs holistically and identifies 
locations and types of compensatory mitigation that will be most 
beneficial to the watershed.
    Two commenters said that prospective permittees should be required 
to submit statements with NWP pre-construction notifications that 
explain how avoidance and minimization of losses of waters of the 
United States was achieved. They said that this statement would assist 
district engineers in determining if avoidance and minimization has 
been achieved to the maximum extent practicable. One commenter objected 
to including temporary adverse effects in the language in paragraph (a) 
of this general condition, stating that it is contrary to the 
definition of ``loss of waters of the United States'' which refers only 
to permanent losses. Another commenter said that compensatory 
mitigation should be considered only after avoidance and minimization 
has occurred.
    We do not agree that it is necessary to require an avoidance and 
minimization statement with pre-construction notifications to evaluate 
whether avoidance and minimization has been achieved to the maximum 
extent practicable on the project site. The information required for a 
complete pre-construction notification, including any plans submitted 
with the pre-construction notification, is sufficient for district 
engineers to determine compliance with this general condition. We 
believe the minimization of temporary impacts to waters of the United 
States is important for ensuring that NWP activities result in minimal 
adverse effects on the aquatic environment, even though those impacts 
do not result in permanent losses and generally do not require 
compensatory mitigation. The requirements of this general condition 
support the mitigation sequence of avoidance, minimization, and 
compensation. Compensatory mitigation requirements are determined after 
considering compliance with the avoidance and minimization provisions 
of this general condition.
    Several commenters expressed support for the \1/10\ acre threshold 
for requiring compensatory mitigation for wetland losses that require 
pre-construction notification. A number of commenters said that 
compensatory mitigation should be required for all wetland losses, 
because of the potential cumulative impacts resulting from many small 
wetland losses. Several commenters asserted that there are enough 
mitigation banks and in-lieu fee programs throughout the country to 
require compensatory mitigation for wetland losses of less than \1/10\ 
acre. Two commenters recommended changing the compensatory mitigation 
threshold to \1/4\ acre, and one commenter reasoned that the threshold 
should be higher because the NWP program already meets the ``no overall 
net loss'' goal for wetlands. Two commenters said that there should not 
be a mandatory compensatory mitigation requirement for the NWPs. 
Compensatory mitigation should be required only when necessary to 
ensure minimal adverse effects.
    We are retaining the \1/10\ acre compensatory mitigation threshold 
for wetland losses, with the provision allowing district engineers to 
waive this requirement on a case-by-case basis if the activity results 
in minimal adverse effects on the aquatic environment. This will help 
ensure that we continue to achieve the ``no overall net loss'' goal 
while providing appropriate flexibility and transparency to the 
wetlands compensatory mitigation requirements for the NWPs. We do not 
believe it is appropriate or practicable to require compensatory 
mitigation for all activities authorized by NWPs that result in wetland 
losses. Even though there are several hundred mitigation banks and in-
lieu fee programs in the United States that are currently operational, 
these mitigation banks and in-lieu fee programs are not distributed 
throughout the country in a manner that would support the recommended 
change to this general condition. In many regions, individual 
permittee-sponsored projects are the only option available for 
compensatory mitigation to offset losses authorized by NWP activities. 
For very small impacts, such projects may not be practicable. Because 
most larger projects require more than one-for-one compensation, we are 
confident that we can continue to meet the ``no overall net loss'' goal 
without requiring mitigation for all impacts.
    One commenter said that general condition 20 is not consistent with 
33 CFR 320.4(r)(2), which states that compensatory mitigation will be 
for significant resource losses. This commenter articulated that there 
is large difference between ``no more than minimal'' and ``significant 
resource loss.'' This commenter also stated that if the proposed 
activity requires a pre-construction notification and will result in 
loss of greater than \1/10\ acre of wetlands, but the activity will 
result in minimal adverse effects, then compensatory mitigation cannot 
be required. This commenter recommended removing the \1/10\ acre 
threshold, and modifying the general condition to simply state that the 
district engineer will require compensatory mitigation when necessary 
to ensure minimal individual and cumulative adverse effects on the 
aquatic environment.
    General condition 20 is consistent with the NWP regulations 
governing mitigation (see 33 CFR 330.1(e)(3)). That

[[Page 11164]]

regulation states that mitigation may be required to reduce the adverse 
effects of the NWP activity so that they are minimal. There is already 
sufficient flexibility in the general condition for the district 
engineer to waive the compensatory mitigation requirement for wetland 
losses that exceed \1/10\ acre if the project impacts are minimal. We 
believe the threshold serves an important purpose in communicating to 
the public that in most cases, impacts of greater that \1/10\ acre will 
be judged to be more than minimal and will require compensatory 
mitigation.
    One commenter asked whether the \1/10\ acre threshold for requiring 
compensatory mitigation for wetland losses also applies to non-wetland 
waters of the United States. Several commenters stated that 
compensatory mitigation should be required for all authorized impacts 
to waters of United States. One commenter said that compensatory 
mitigation for losses of non-wetland waters of the United States should 
be optional. Another commenter said that on-site restoration of 
temporarily impacted areas should be achieved before compensatory 
mitigation is required.
    The \1/10\ acre compensatory mitigation threshold in paragraph (c) 
applies only to wetland losses. We are adding a new paragraph (d) to 
this general condition, to clarify that the district engineer may 
require compensatory mitigation for losses of streams and other types 
of waters of the United States. We do not believe it is necessary to 
require compensatory mitigation for all authorized impacts to waters of 
the United States. In response to pre-construction notifications, 
compensatory mitigation requirements for losses of streams and other 
open waters will be determined by district engineers on a case-by-case 
basis, to ensure minimal adverse effects. The NWP general conditions, 
especially general condition 13, Removal of Temporary Fills, address 
the restoration of temporarily impacted areas. Compensatory mitigation 
is required only for permanent losses, however, temporary impacts must 
also be minimized.
    Three commenters asked for specific criteria that would be used by 
district engineers to determine when compensatory mitigation would be 
required for NWP activities. Two commenters requested clarification 
regarding the circumstances when compensatory mitigation would be 
required for wetland losses of less than \1/10\ acre. One commenter 
recommended that permittees who believe their project should not 
require compensatory mitigation be required to provide a justification 
for why compensatory mitigation is not necessary for their NWP 
activities.
    Compensatory mitigation requirements will be determined by district 
engineers on a case-by-case basis, after considering relevant and 
available information, such as the ecological conditions of the project 
site, the type of activity, the impacts of the activity on the aquatic 
environment and other public interest factors, and the type of aquatic 
resources that will be adversely affected by the NWP activity. To the 
extent practicable, this evaluation will be conducted using a watershed 
approach. Compensatory mitigation will be required for wetland losses 
of less than \1/10\ acre, when the district engineer determines it is 
necessary to ensure minimal adverse effects on the aquatic environment. 
This is particularly likely in areas where there is concern for the 
cumulative effects of multiple small losses. District engineers will 
review pre-construction notifications, and determine when compensatory 
mitigation will be required. It is not necessary to require permittees 
to provide a statement explaining why compensatory mitigation is not 
needed, however permittees are welcome to provide such information if 
they believe it will help the district engineer in determining the 
amount and type of required mitigation. Such statements are most useful 
when they are based on sound technical analysis using a watershed 
approach that draws on pre-existing assessments of watershed needs.
    One commenter supported the provision allowing the district 
engineer to waive or reduce the compensatory mitigation requirement for 
wetland losses, when other forms of mitigation, such as the 
establishment and maintenance of riparian areas, would be better for 
the environment. One commenter said that off-site compensatory 
mitigation should be preferred in areas where invasive species are a 
problem. One commenter suggested that the general condition retain a 
preference for restoration.
    The location of compensatory mitigation projects will be determined 
on a case-by-case basis. Off-site compensatory mitigation may be more 
appropriate for a variety of reasons, in addition to concerns for 
invasive species. Off-site compensatory mitigation may be more 
effective at replacing aquatic resource functions that will be lost as 
a result of the NWP activity. Off-site mitigation may also have a 
better chance of success, particularly if the proximity of the 
permitted activity is likely to adversely impact the mitigation (e.g., 
through altered hydrology). This general condition retains a preference 
for wetland restoration, but the text has been modified to reflect the 
language in the 1990 ``Memorandum of Agreement Between the 
Environmental Protection Agency and the Department of the Army 
Concerning the Determination of Mitigation Under the Clean Water Act 
404(b)(1) Guidelines.''
    One commenter agreed with the one-to-one mitigation ratio in 
paragraph (c) of this general condition, provided there is flexibility 
in determining the appropriate ratio for a specific NWP activity. 
Several commenters said that district engineers should be allowed to 
require higher ratios of compensatory mitigation, to help ensure 
effective mitigation.
    The mitigation ratio in paragraph (c) is a recommended minimum 
ratio that can be adjusted upward as necessary to provide for more 
appropriate mitigation for a specific activity. For a particular NWP 
activity, the district engineer will determine the appropriate 
mitigation ratio. Ratios of greater than one-to-one are often required 
to ensure that appropriate amounts of compensatory mitigation are 
provided to satisfy the minimal adverse environmental effects 
requirements of the NWPs. Higher ratios may be used to address temporal 
losses, uncertainty in mitigation success, and/or differences in 
functions and services between the impact site and the mitigation site.
    One commenter expressed support for paragraph (d) of this general 
condition.
    We are retaining this paragraph, with slight changes to its text to 
provide greater clarity. The substance of this paragraph remains 
unchanged. Because of the addition of a new paragraph (d), this 
paragraph is redesignated as paragraph (e).
    Several commenters objected to requiring riparian areas as 
compensatory mitigation for activities authorized by NWPs, stating that 
the Corps lacks authority to require non-wetland riparian areas as 
compensatory mitigation. One commenter provided support for the use of 
riparian areas as compensatory mitigation, and another commenter said 
that riparian areas should be required for all activities. This 
commenter said that using riparian areas as the only form of 
compensatory mitigation is appropriate when the project impacts would 
be more than minimal without the protection of the riparian area. 
Another commenter asserted that the Corps is attempting to expand its 
jurisdiction by requiring establishment and maintenance of

[[Page 11165]]

riparian areas. One commenter asked for clarification of the 
jurisdictional status of riparian areas under the Clean Water Act. A 
commenter said that riparian areas cannot be required as compensatory 
mitigation for NWP activities near streams because compensatory 
mitigation projects may only consist of areas that are, or will become, 
waters of the United States.
    The establishment and maintenance of riparian areas can be required 
by the district engineer as compensatory mitigation, to help ensure 
that the NWP activity results in minimal individual and cumulative 
adverse effects on the aquatic environment. Such a requirement does not 
make non-wetland riparian areas subject to Clean Water Act 
jurisdiction. Since non-wetland riparian areas are not jurisdictional, 
this paragraph also states that legal protection should be provided to 
the riparian areas, for their protection and maintenance. In many 
areas, riparian areas will be wetlands subject to Clean Water Act 
jurisdiction. In other areas riparian areas will not meet the criteria 
in the Corps wetland definition at 33 CFR 328.3(b).
    We do not agree that the establishment and maintenance of riparian 
areas should be required for all NWP activities. It may not be a 
practicable or appropriate form of compensatory mitigation for some NWP 
activities.
    Regardless of whether they are wetland or non-wetland, riparian 
areas generally provide ecological functions that are important to the 
aquatic environment, and especially to the ecological integrity of 
streams. Examples of ecological functions provided by riparian areas 
include: removing nutrients and pollutants from surface runoff, which 
improves water quality; moderating storm flows to streams, which 
reduces downstream flooding and degradation of aquatic habitat; erosion 
reduction; moderating water temperature changes; providing detritus, a 
food source for many aquatic organisms; providing a source of large 
woody debris to stream channels, which provides habitat for aquatic 
organisms; providing habitat to a wide variety of aquatic and 
terrestrial species; trapping sediments, thereby reducing degradation 
of stream habitat quality; providing corridors for the movement and 
dispersal of many species of wildlife; and providing flood storage 
capacity.
    Compensatory mitigation projects can include areas that are not 
waters of the United States, as long as the mitigation is directly 
related to the impacts of the proposed work on such waters and 
appropriate to the scope and degree of those impacts. Riparian areas 
are integral components of streams and other open waters, and are 
essential for their ecological integrity and functioning. The 
establishment and maintenance of riparian areas as compensatory 
mitigation for activities authorized by NWPs and other types of permits 
also helps advance the objective of the Clean Water Act, which is to 
``restore and maintain the chemical, physical, and biological integrity 
of the Nation's waters.'' Therefore, riparian areas can be required as 
compensatory mitigation for NWP activities.
    One commenter asked whether the establishment and maintenance of 
riparian areas as compensatory mitigation is mandatory or 
discretionary. Two commenters said that in many areas with ephemeral 
waters, it may not be possible to establish and maintain riparian areas 
next to those waters. Another commenter stated that it is not always 
feasible to provide legal protection (e.g., conservation easements) for 
riparian areas within highway rights-of-way. One commenter said that 
for ephemeral streams, vegetated buffers should be required instead of 
riparian areas.
    The establishment and maintenance of riparian areas as a 
compensatory mitigation requirement is at the discretion of the 
district engineer. Compensatory mitigation requirements are established 
on a case-by-case basis, to ensure that the NWP activity results in 
minimal individual and cumulative adverse effects on the aquatic 
environment. If ephemeral streams are located on the project site, it 
may not be feasible to establish and maintain riparian areas next to 
those waters. Riparian areas should be self-sustaining. Also, if it is 
not possible to protect riparian areas through real estate instruments, 
the district engineer may require alternate arrangements or an 
alternative form of compensatory mitigation, as appropriate to the 
situation.
    The general condition contains a recommended width of 25 to 50 feet 
for riparian areas on each side of the stream. Two commenters said that 
requiring 25 to 50 foot wide riparian areas may not always be feasible, 
and may be too costly. A commenter stated that the recommended width of 
riparian areas should be at least 150 feet to protect water quality, 
and wider to provide other ecological functions. Another commenter 
suggested a minimum width of 100 feet. One commenter indicated that 
wider riparian areas should be required to address habitat issues 
identified in federal or state watershed plans. Another commenter 
stated that wider riparian areas should be required to protect salmon 
habitat. One commenter requested clarification regarding the 
documentation necessary to determine the appropriate width of the 
riparian area.
    The appropriate width of the riparian area will be determined by 
the district engineer, taking into account the ecological 
characteristics of the project site, as well as the nature and extent 
of the overall activity that will be constructed on the project site. 
The recommended width for riparian areas is intended to provide balance 
between environmental protection and the development of the project 
site. The recommended width is also intended to be commensurate with 
the level of impacts that need to be mitigated. The Corps' regulations 
require compensatory mitigation to be appropriate to the scope and 
degree of the authorized impacts. Requiring the establishment and 
maintenance of a 150-or 100-foot wide riparian area could comprise a 
substantial land area on a parcel, and would likely be an inappropriate 
amount of compensatory mitigation for an NWP activity, especially for 
an NWP that has a \1/2\ acre limit for losses of waters of the United 
States. The information provided in the site plans, as well as 
supporting documentation, is normally sufficient to determine the 
appropriate width of the riparian area.
    Another commenter said that there needs to be flexibility to allow 
use of other tools to protect water quality, such as storm water 
management features, instead of requiring the establishment and 
maintenance of riparian areas. One commenter stated that riparian areas 
should be planted only with local genetic stocks of native plant 
species.
    Storm water management features, as well as best management 
practices, may be used instead of riparian areas to protect water 
quality, if site characteristics do not support the establishment and 
maintenance of riparian areas. Native species should be planted, but we 
do not agree that it is necessary to limit those plantings to local 
genetic stocks, though this should be encouraged where practicable. 
Such stocks may not be available in the area, and therefore such a 
requirement may not be practicable.
    Two commenters stated that this general condition should clearly 
state that mitigation banks can be used to provide compensatory 
mitigation for NWPs. One commenter said that the use of mitigation 
banks to provide compensatory mitigation for NWP activities should be 
limited to the same

[[Page 11166]]

watershed as authorized impacts. Two commenters said that in-lieu fee 
programs should not be used for the NWPs. Another commenter stated that 
in-lieu fee programs should not be used for compensatory mitigation for 
NWP activities unless they comply with 2000 in-lieu fee guidance. Two 
commenters expressed support for the use of in-lieu fee programs to 
provide compensatory mitigation for NWP activities.
    Both mitigation banks and in-lieu fee programs can be used to 
provide compensatory mitigation for activities authorized by NWP 
permits. The established service area of the mitigation bank, as well 
as the judgment of the district engineer, will be used to determine 
whether credits provided by that mitigation bank are appropriate 
compensation for a specific NWP activity. In-lieu fee programs can 
provide compensatory mitigation projects that benefit the aquatic 
environment, as well as the watershed. When the final Compensatory 
Mitigation Rule is published, any changes in mitigation requirements 
will be applied to the NWP program as necessary at that time.
    Paragraph (g) of the proposed general condition stated that 
compensatory mitigation may be required to offset permanent adverse 
effects to certain functions and services provided by waters of the 
United States, such as converting a forested wetland to a herbaceous 
wetland. Three commenters objected to characterizing this as an adverse 
effect. Two commenters said that compensatory mitigation should not be 
required for these impacts. Two commenters asserted that this paragraph 
should be deleted, since there is ample guidance concerning when 
compensatory mitigation should be required for these types of impacts. 
Two other commenters supported adding this provision to the general 
condition.
    We are retaining this provision, while redesignating it as 
paragraph (h). Compensatory mitigation can be required for adverse 
effects to aquatic resources, even specific functions provided by those 
aquatic resources.
    One commenter recommend adding language to this general condition 
which would state that the district engineer will determine appropriate 
compensatory mitigation based on what is best for the aquatic 
environment on a watershed basis. Another commenter requested 
clarification that the establishment of upland buffers around 
compensatory mitigation projects is voluntary, and compensatory 
mitigation credit would be provided for such vegetated buffers.
    We do not believe it is necessary to revise the general condition 
to specifically state that appropriate compensatory mitigation will be 
determined based on what would be best for the aquatic environment on a 
watershed basis, though this is certainly the policy of the Corps. 
Mitigation policy documents, such as Regulatory Guidance Letter 02-02, 
already support that concept. There is also an extensive discussion of 
the watershed approach in the preamble to the proposed Compensatory 
Mitigation Rule. District engineers may grant compensatory mitigation 
credit for upland buffers surrounding compensatory mitigation project 
sites, if those buffers contribute to the ecological functioning and 
sustainability of those projects. Any requirement to establish and 
maintain vegetated buffers around compensatory mitigation project sites 
should be based on considerations of practicability and 
appropriateness.
    One commenter asserted that the Corps does not have the statutory 
authority to require conservation easements to protect compensatory 
mitigation projects. This commenter said that such a requirement is 
problematic for mining activities because different parties may own 
different rights (e.g., surface rights v. mineral rights) associated 
with the parcel of land.
    The district engineer has the discretion to require conservation 
easements for compensatory mitigation project sites, to protect those 
sites, if he or she determines that this is necessary to ensure minimal 
adverse impacts. In some cases, it may not be feasible to require 
conservation easements because the various rights associated with a 
particular parcel of land may belong to different individuals. In such 
cases, other methods of protecting the mitigation site should be 
explored.
    One commenter said that this general condition should be revised to 
provide performance standards for compensatory mitigation projects 
required for NWP activities. This commenter also recommended retaining 
the requirement for NWP verifications to specify the party responsible 
for implementing the compensatory mitigation plan, instead of limiting 
it only to cases where the use of mitigation banks, in-lieu fee 
programs, and activity-specific compensatory mitigation is required.
    Performance standards for compensatory mitigation projects are 
usually specific to certain types of aquatic resources and are, 
therefore, more appropriately determined by the district engineer. It 
would be inappropriate to establish national performance standards 
through this general condition, because of the considerable variation 
among aquatic resource types across the country. Paragraph (g) of this 
general condition requires the mitigation provisions of NWP 
verifications to specify the party responsible for providing 
compensatory mitigation. This requirement applies to all three types of 
compensatory mitigation, including compensatory mitigation provided by 
the permittee.
    General condition 20 is adopted, with the modifications discussed 
above.
    GC 21. Water Quality. We proposed to modify this general condition 
by simplifying the provision regarding requirements for water quality 
management measures.
    Several commenters expressed support for the proposed changes to 
this general condition. One commenter suggested that this general 
condition should not apply to NWPs 27 or 48, because the activities 
authorized by these NWP result in improvements to water quality.
    If an aquatic habitat restoration, establishment, or enhancement 
activity or a commercial shellfish aquaculture activity involves 
discharges of dredged or fill material that require a section 404 
permit, then water quality certification must be obtained, either for 
the NWP generally or individually by the project proponent, or waived. 
This is a requirement of Section 401 of the Clean Water Act. Therefore, 
we cannot modify this general condition to exclude NWPs 27 or 48.
    Several commenters stated that this general condition creates the 
potential for duplicative oversight of water quality issues by the 
Corps and EPA or its designated state agency. Another commenter said 
that it would be arbitrary for the Corps to attempt to regulate water 
quality by requiring some type of undefined water quality management 
measures.
    Whether duplicative or not, Section 401 certification by EPA or a 
State or Tribe, as appropriate, is required by the Clean Water Act. 
District engineers can condition NWP authorizations to ensure that the 
authorized activity results in minimal individual and cumulative 
adverse effects on the aquatic environment and other factors of the 
public interest, including water quality. By requiring water quality 
management measures necessary to ensure that the authorized activity 
results in minimal adverse effects, the Corps is not attempting to 
regulate water quality. Appropriate water quality management measures 
will be identified on a case-

[[Page 11167]]

by-case basis through the NWP verification process.
    A Section 401 certification must be obtained or waived prior to 
commencing the authorized activity. In cases where a state has not yet 
provided, or has denied, water quality certification, for an NWP 
generally, the permittee must request individual certification before 
proceeding and provide documentation of this request to the Corps. The 
district engineer will wait for a reasonable period of time after 
receipt of this documentation. The NWP regulations generally define 
this period of time as 60 days, after which the district engineer can 
assume a waiver of the water quality certification. The wait period may 
vary as a result of negotiations between the district engineer and the 
state, but it cannot exceed one year. The district engineer will inform 
the project sponsor of the appropriate waiting period for presumption 
of a waiver of certification. The activity may not proceed until the 
project sponsor has received individual certification from the state or 
the waiting period has elapsed. This general condition is adopted as 
proposed.
    GC 22. Coastal Zone Management. We proposed to modify this general 
condition to state that the district engineer or state may require 
additional measures to ensure consistency with state coastal zone 
management requirements.
    One commenter stated that use of the term ``waived'' in this 
general condition is inappropriate, because Coastal Zone Management Act 
(CZMA) consistency determinations cannot be waived. This commenter also 
stated that obtaining a CZMA consistency concurrence cannot be a 
condition of a Federal permit, because the CZMA states that a Federal 
permit cannot be issued until a CZMA consistency concurrence is issued.
    We have modified this general condition by removing the phrase ``or 
waived'' and replacing it with the phrase ``or a presumption of 
concurrence must occur'' to be consistent with the implementing 
regulations for the CZMA. This general condition is an appropriate 
means of ensuring compliance with CZMA requirements, especially for 
those NWP activities that do not require pre-construction notification. 
For activities subject to the CZMA, the NWP authorization is not valid 
until the permittee has complied with the requirements of the CZMA, 
including the requirement to obtain CZMA consistency concurrence or a 
presumption of concurrence.
    A CZMA concurrence or presumption of concurrence must be obtained 
prior to commencing the authorized activity. In cases where a state has 
not acted on, or has disagreed with the Corps' consistency 
determination, the permittee must provide the state with an individual 
consistency determination for concurrence, and must provide the 
district engineer with the state's individual consistency concurrence 
or a copy of the individual consistency determination provided to the 
state for concurrence. If the state fails to act on the permittee's 
consistency determination within six months of receipt by the state, 
concurrence will be presumed.
    This general condition is adopted with the modification discussed 
above.
    GC 23. Regional and Case-by-Case Conditions. We proposed to modify 
this general condition to clarify that water quality certifications may 
be issued by Indian Tribes or the U.S. Environmental Protection Agency, 
and that states issue CZMA consistency determinations.
    One commenter recommended modifying this general condition to 
clarify that the U.S. EPA has delegated the section 401 water quality 
certification program to many states, and that in those cases it is the 
designated state that issues the water quality certification, not the 
U.S. EPA.
    We do not agree that this suggested modification is necessary, 
since the wording already recognizes that delegated States or Tribes 
may issue Section 401 water quality certifications.
    This general condition is adopted as proposed.
    GC 24. Use of Multiple Nationwide Permits. We proposed to modify 
this general condition by making a grammatical adjustment.
    Several commenters objected to the practice of using more than one 
NWP to authorize a single and complete project. In contrast, two 
commenters said that combining NWPs is both appropriate and desirable 
as a means for the Corps to reduce its workload and provide expedited 
approvals to the regulated public. Two comments said that the proposed 
general condition has the effect of raising the acreage limit when an 
NWP with an acreage limit is combined with another NWP that has no set 
limit. One commenter suggested rewording the general condition in the 
affirmative. One commenter suggested replacing the term ``temporary 
loss'' with ``temporary impact'' for purposes of calculating the loss 
of waters of the United States.
    We agree that the ability to use multiple NWPs reduces our workload 
and expedites decisions for the regulated public while maintaining the 
necessary protections for the aquatic environment. When two NWPs are 
used to authorize a single and complete project, and one NWP has a 
specified limit and the other NWP has no specified limit, the general 
condition states that the acreage loss of waters of the United States 
cannot exceed the acreage limit of the NWP with the highest specified 
acreage limit. The NWP with the specified acreage limit establishes the 
acreage limit for the single and complete project, not the NWP with no 
designated acreage limit. We believe phrasing this general condition as 
a prohibition assists in compliance. The reference to ``acreage loss'' 
in this general condition applies to permanent losses, to be consistent 
with the definition of ``loss of waters of the United States'' provided 
in the ``Definitions'' section of the NWPs.
    This general condition is adopted as proposed.
    GC 25. Transfer of Nationwide Permit Verifications. We proposed to 
add this new general condition to the NWPs.
    Several commenters supported the proposed general condition. One 
commenter requested clarification whether there would be a standardized 
form for the parties to sign and submit. Another commenter recommended 
adding a permit transfer form as a separate section of the NWP 
verification or certificate of compliance.
    This general condition provides specific language that must be 
included in all NWP verification transfer request letters from the 
original permittee to the appropriate Corps district office, to 
validate the transfer of the NWP verification to a new property owner. 
District engineers have the discretion to incorporate this language in 
NWP verification letters, either as language within the text of the 
letter, or as a separate form or attachment. At their discretion, 
district engineers may also ask permittees to include the referenced 
language as part of their own transfer request letter.
    One commenter requested clarification whether the permit transfer 
information would be tracked in a database and made available to the 
public and other regulatory agencies.
    The permit transfer authorization information will be retained in 
the appropriate recordkeeping facilities at Corps district or field 
offices. The information will be provided upon request to the public or 
other agencies.
    One commenter recommended adding a sentence to the transfer 
statement to be signed, specifying that any changes in the permitted 
project must be evaluated by the district engineer and could require 
modifications to the permit.

[[Page 11168]]

    Any requests for modification of an activity previously authorized 
by a DA permit will be reviewed by the district engineer. If the new 
proponent wants to modify the previously verified activity, the 
proposed modification must be submitted for the consideration of the 
Corps, to verify that the activity still complies with the terms and 
conditions of the applicable NWP. We do not believe it is necessary to 
add a sentence to this general condition to describe this requirement, 
which applies regardless of whether the permit is transferred or not.
    Several commenters stated that this general condition only 
addresses the sale of the property associated with an NWP verification, 
and recommended that it be expanded to allow the transfer of a permit 
verification when responsibility over the project is transferred even 
if the lands in question do not undergo change in ownership. Another 
commenter suggested clarifying that the transfer provision is also 
applicable when only part of the property covered by the NWP is sold. 
This commenter also suggested changing the phrase ``associated 
liabilities associated with compliance with its terms and conditions'' 
to read ``obligations to comply with its terms and conditions.''
    The language for the proposed general condition was taken from 
Appendix A of 33 CFR 325, which is the standard form for Department of 
the Army permits. This language is found at general condition 4 of 
Appendix A. We believe that the language in this general condition 
should be consistent with our standard permit language.
    One commenter requested clarification on how the NWP verification 
transfer would affect off-site mitigation requirements associated with 
an NWP verification. One commenter requested clarification as to 
whether the transfer is a required condition or an option.
    As stated in this general condition, when a property associated 
with an NWP verification is sold, the responsibilities and liabilities 
associated with the NWP verification are transferred to the new owner. 
This includes any mitigation requirements added as special conditions 
to the NWP authorization being transferred. Transferring the NWP 
verification to the new owner of the property is not necessary if the 
new owner decides not to conduct the authorized activity. The new owner 
also has the option of obtaining a different NWP verification. However, 
if the activity is (or was) conducted and any permit conditions are 
still applicable, the new owner must have some form of DA 
authorization.
    This general condition is adopted as proposed.
    GC 26. Compliance Certification. We did not propose any substantive 
changes to this general condition. One commenter suggested changing the 
name of this general condition to ``Compliance Verification'' to avoid 
confusion with other certifications such as water quality 
certifications.
    We do not agree with the proposed name change for this condition. 
For this general condition, the permittee is certifying that he or she 
has completed the authorized work and any required mitigation.
    This general condition is adopted as proposed.
    GC 27. Pre-Construction Notification. We proposed to modify and 
simplify this general condition by removing language that is redundant 
with the terms of specific NWPs. We also proposed to modify the 
information requirements for pre-construction notifications. Other 
proposed modifications are discussed in the September 26, 2006, Federal 
Register notice.
    Two commenters stated that the reference to using ENG FORM 4345 
should be removed because this form does not contain the necessary 
information required for a complete pre-construction notification. One 
commenter requested that a complete pre-construction notification be 
defined.
    It is not necessary to use ENG FORM 4345 for pre-construction 
notifications. Instead of using ENG FORM 4345, a prospective permittees 
may choose to supply the information in a letter. Some districts 
provide checklists to assist prospective permittees, especially if they 
have regional conditions that specify additional information that must 
be submitted with pre-construction notifications.
    One commenter asked if a pre-construction notification is presumed 
to be complete if the district engineer does not request additional 
information necessary to make the pre-construction notification 
complete within 30 days. This commenter also requested clarification on 
when the 45-day pre-construction notification review period begins. One 
commenter suggested that the district engineer should be allowed to 
make more than one request of additional information in order to make a 
more informed decision.
    If 30 days has passed since the pre-construction notification was 
received by the Corps district, the pre-construction notification will 
be presumed to be complete. The 45 day pre-construction notification 
review period begins on the date the complete pre-construction 
notification is received by the Corps district. If the district 
engineer requests additional information necessary to make the pre-
construction notification complete, a new 45 day review period begins 
on the date the requested information is received by the Corps 
district. If no request for additional information is received, the 
original pre-construction notification is deemed complete and the 45 
day review period begins on the date the pre-construction notification 
was received by the Corps district.
    The provision limiting the district engineer to one request for 
additional information applies only to those requests for information 
necessary to complete the pre-construction notification. We have 
modified the second sentence of paragraph (a) to provide flexibility in 
cases where there are extenuating circumstances that warrant an 
additional request for information necessary to make a pre-construction 
notification complete. Such requests must also be made within the 30 
calendar days of receipt of the pre-construction notification. This 
sentence has been modified to state that, as a general rule, the 
district engineer will make only one request for additional information 
to make the pre-construction notification complete. District engineers 
should endeavor to make only one request for additional information to 
make a pre-construction notification complete.
    The information requirements for a complete pre-construction 
notification are provided in paragraph (b) of this general condition. 
We believe the information required for a complete pre-construction 
notification is the minimum information necessary for district 
engineers to begin the process of determining whether the proposed work 
will result in minimal adverse effects on the aquatic environment and 
is authorized by NWP.
    If, as a result of the review of the complete pre-construction 
notification, the district engineer determines that additional 
information (such as a compensatory mitigation plan) is needed to make 
a final decision on whether the activity qualifies for NWP 
authorization or discretionary authority should be asserted, the 
district engineer may request that information. In cases where this 
additional information is necessary to make a decision on the pre-
construction notification, the decision must still be made within 45 
days of the receipt date for the complete pre-construction 
notification.

[[Page 11169]]

    Two commenters said that the burden has shifted from the Corps to 
the prospective permittee for Endangered Species Act or National 
Historic Preservation Act compliance, and there is no relief provided 
in the 45 day clock for applicants when Endangered Species Act or 
section 106 consultation is necessary. Two commenters stated that if 
the 45 day period has passed, the NWP verification should be issued 
even if the Endangered Species Act or section 106 requirements have not 
been completed. One commenter inquired if the Corps could ensure that 
the Endangered Species Act or National Historic Preservation Act 
consultation processes will conclude within 45 days. One commenter said 
that paragraphs (b)(6) and (b)(7) of this general condition should 
clarify whether Federal permittees are required to submit information 
for compliance with the Endangered Species Act or Section 106 of the 
National Historic Preservation Act.
    Permittees cannot presume NWP authorization if any endangered or 
threatened species or critical habitat might be affected or is in the 
vicinity of the project or if the project is located in designated 
critical habitat, or if the activity may have the potential to cause 
effects to any historic properties listed, determined to be eligible 
for listing, or potentially eligible for listing on the National 
Register of Historic Places (see general conditions 17 and 18). The NWP 
regulations state that if the prospective permittee notifies the 
district engineer that Federally-listed endangered or threatened 
species or critical habitat might be affected or are in the vicinity of 
the project, he or she cannot begin work until notified by the district 
engineer that the requirements of the Endangered Species Act have been 
satisfied (see 33 CFR 330.4(f)(2)). There is a similar provision for 
historic properties (see 33 CFR 330.4(g)(2)). We have modified general 
conditions 17 and 18 to require district engineers to inform permittees 
of the need to conduct these consultations within 45 days of receipt of 
complete pre-construction notifications, however, even if such notice 
is not received, the permittee cannot assume authorization. The 
permittee makes the first determination as to whether general 
conditions 17 or 18 are triggered, and will know if he or she has 
notified the Corps of any potential effects on listed species or 
critical habitat, or on historic properties. If so, the permittee must 
wait for written verification from the Corps that ESA and historic 
preservation requirements have been satisfied. In cases where 
Endangered Species Act or section 106 consultation is necessary, we 
cannot require those consultations to be concluded with 45 days of 
receipt of a complete pre-construction notification. Those 
consultations often take more than 45 days; their timeframes are only 
partially within the control of the Corps. The Corps will do what it 
can to expedite any required consultations.
    We have inserted the phrase ``for non-Federal permit applicants'' 
in paragraphs (b)(6) and (b)(7) since Federal permittees are to follow 
their own procedures for complying with the Endangered Species Act and 
the National Historic Preservation Act. Non-federal permittees are 
required to submit the information required by these paragraphs, since 
the Corps will use that information to determine whether it is 
necessary to conduct Section 7 or Section 106 consultations for those 
activities that may affect listed species, critical habitat, or 
historic properties.
    One commenter recommended modifying paragraph (b) of this general 
condition to include guidance on the types of information and analyses 
that should be submitted with pre-construction notifications to support 
``effect'' determinations and consultation efforts under Section 7 of 
the Endangered Species Act. This commenter said that this guidance 
should include instructions on how prospective permittees can obtain 
species lists. This commenter also suggested amending paragraph (b) to 
include guidance on evaluating ``effects of the action'' and 
constructing ``consultation packages'' for informal and formal Section 
7 consultation.
    In paragraph (e) of general condition 17, Endangered Species, we 
have provided the links to the Web sites of the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service, where prospective 
permittees can go to obtain further information on endangered or 
threatened species or critical habitat. The available information 
regarding endangered or threatened species or critical habitat varies 
by Service field office, and we believe providing a general link is 
sufficient since their Web pages are likely to change over time. As for 
providing guidance regarding information and analyses to be used for 
Endangered Species Act compliance, it would be more appropriate for our 
district offices to work with the field offices of the Services to 
develop such guidance as necessary, since the appropriate types of 
information and analyses are likely to vary by species, and the type of 
activity being conducted.
    One commenter stated that assuming the NWP verification after 45 
days is problematic because many states require the Corps verification 
letter prior to commencing the water quality certification review.
    In cases where the 45 day pre-construction review period has 
passed, the permittee must still comply with general condition 21, 
Water Quality. After the applicant has submitted an application for 
individual water quality certification, waiver of the requirement to 
obtain water quality certification for an NWP is assumed if the 
applicant has not heard from the state or Tribe within a reasonable 
amount of time, generally 60 days (see 33 CFR 330.4(c)(6)). If the 
state requires a Corps verification for water quality certification, 
the permittee must wait for the verification. The Corps will make every 
effort to provide verification letters within 45 days.
    One commenter said that the 45 day default authorization provision 
should be eliminated and two commenters requested that the 45 day 
review period be reduced to 30 days. Two commenters asked if the time 
frames are measured in calendar days or business days. One commenter 
requested a list of potential differences in information requirements 
for pre-construction notifications for the various NWPs.
    We are maintaining the 45 day default authorization provision. We 
are modifying the text of general condition 27 to clarify that calendar 
days are used. Paragraph (b) of this general condition lists all of the 
information necessary for a complete pre-construction notification. 
Corps districts can provide checklists to assist prospective 
permittees, especially if they have regional conditions that specify 
additional information that must be submitted with pre-construction 
notifications.
    Two commenters expressed support for removing part of (a)(2) from 
the notification general condition adopted in 2002. One commenter 
suggested modifying paragraph (a)(2) to state that a prospective 
permittee cannot begin an NWP activity that requires a written waiver 
of NWP limits, until the written waiver is issued by the district 
engineer. One commenter said the district engineer should be required 
to provide written waivers to prospective permittees within the 45 day 
time-frame.
    We have modified paragraph (a)(2) to state that the permittee 
cannot begin the activity until the district engineer issues the 
written waiver required by an NWP. Such waivers do not have to be

[[Page 11170]]

provided during the 45-day pre-construction notification review period, 
because the written waiver is required by the terms and conditions of 
the applicable NWP. For proposed projects that require any type of 
written waiver, district engineers must make a written determination 
that the proposed work will result in no more than minimal adverse 
effects on the aquatic environment. District engineers will try to 
determine whether or not to grant waivers as expeditiously as possible.
    One commenter expressed support for the proposed changes to 
paragraph (b)(3). Another commenter said that paragraph (b)(3) contains 
an incomplete sentence. One commenter recommended adding a requirement 
for the prospective permittee to state how avoidance and minimization 
was accomplished in order for the Corps to make a better decision. One 
commenter suggested that the prospective permittee should list any 
waivers that are requested. One commenter said that paragraph (b)(3) 
should be modified to require analyses of losses of juvenile salmonid 
over wintering habitat and early rearing habitat.
    We have inserted the words ``and to determine the need for'' before 
``any necessary compensatory mitigation'' to complete the sentence in 
paragraph (b)(3). District engineers will review pre-construction 
notifications in accordance with general condition 20, Mitigation, to 
determine whether the prospective permittee has accomplished all 
practicable avoidance and minimization on the project site. The present 
information requirements in paragraph (b)(3) will suffice for 
determining whether waivers of NWP limits are being requested by the 
prospective permittee. Assessments of potential impacts to juvenile 
salmon are more appropriately addressed by Corps districts where 
significant salmon impacts are occurring.
    Two commenters agreed with the requirement to include a delineation 
of wetlands and other waters of the United States with the pre-
construction notification. One commenter asked if an approved 
jurisdictional determination is necessary for a complete pre-
construction notification. One commenter said that the general 
condition should clarify whether a prospective permittee can assume 
that a delineation submitted with a pre-construction notification is an 
approved jurisdictional determination. One commenter stated a 
delineation of special aquatic sites should be required for NWPs 3, 11, 
13, 19, 27, 29, 31 and 36. Two commenters voiced concern that 
delineating wetlands and waters of the United States beyond those 
actually impacted by the project is too burdensome when working on 
large project sites.
    The permittee cannot assume that a delineation of waters of the 
United States submitted with a pre-construction notification is an 
approved jurisdictional determination. Jurisdictional determinations 
are made by the Corps and documented through the issuance of an NWP 
verification. The Corps is in the process of revising its procedures 
for issuing and documenting its jurisdictional determinations, and will 
be providing guidance shortly.
    The 45-day pre-construction notification review period starts on 
the date that a complete pre-construction notification is received. If 
the district engineer determines that the delineation is incorrect and 
requests a revised delineation from the applicant, the 45-day review 
period starts again when the revised delineation is received by the 
district engineer. This general condition requires delineations of 
special aquatic sites and other waters of the United States on the 
project site, so it is not necessary to specify which NWPs require 
delineations with their pre-construction notifications. Since this 
paragraph refers to project site, it does not imply that all waters of 
the United States on the property need to be delineated. The 
delineation need only cover a sufficient area surrounding the proposed 
NWP activity.
    One commenter stated the while the methodology for delineating 
wetlands is established, methods for delineating non-wetland waters of 
the United States are lacking. One commenter voiced concern with the 
language stating that the delineation must be prepared in accordance 
with the ``current method required by the Corps'' and requested that we 
state that wetland delineations cannot be based solely on National 
Wetland Inventory maps because they were not developed for the 404 
program. Furthermore, it was urged that the Corps require field-based 
delineations and not approve any delineations for waters of the United 
States, including wetlands, without a field inspection.
    Delineations of non-wetland waters of the United States should 
follow the definitions for these areas. For example, in using the 
definition for riffle and pool complexes, maps indicating stream 
segments containing riffle and pool complexes and their location can be 
used as delineations of these special aquatic sites. It is not 
necessary to precisely map each riffle and pool complex within a 
stream. Rather, the delineation need only show the locations of special 
aquatic sites at a sufficient level of detail for the district engineer 
to determine the potential for these sites to be impacted by project 
activities.
    The reference to the ``current method'' means the 1987 Corps of 
Engineers Wetland Delineation Manual, associated guidance, and any 
approved regional supplements to the 1987 manual. National Wetland 
Inventory maps are useful for planning purposes but they do not provide 
delineations of waters of the United States. It is not necessary to 
require field inspections for all delineations of waters of the United 
States.
    One commenter expressed concern regarding the language in paragraph 
(b)(4) that discusses situations where the Corps would conduct 
delineations. In this paragraph we are simply stating that if a 
prospective permittee relies on the Corps to conduct a delineation, 
that prospective permittee should anticipate delays due to the 
workloads facing the district engineers.
    One commenter suggested modifying paragraphs (b)(5) and (e) to 
clarify that these paragraphs refer to permanent losses. One commenter 
recommended changing paragraph (b)(5) to require the prospective 
permittee to state why the project would exceed minimal adverse impacts 
without additional mitigation. Two commenters suggested that there 
should not be a requirement to submit detailed compensatory mitigation 
plans with a pre-construction notification, because of the costs to 
develop mitigation plans that may not be required once the district 
engineer makes a decision on the pre-construction notification.
    It is unnecessary to modify these paragraphs to specify that we are 
referring to permanent losses, because the NWP definition for ``loss of 
waters of the United States'' refers only to permanent losses. In 
fulfilling the requirements of paragraph (b)(5), the prospective 
permittee's statement can explain how the proposed activity complies 
with general condition 20. Paragraph (c) of general condition 20 states 
that the district engineer can waive the requirement for wetlands 
compensatory mitigation or require an alternate form of mitigation. We 
are modifying paragraph (b)(5) of this general condition to allow 
project proponents to submit conceptual or detailed mitigation plans.
    One commenter said that a conceptual mitigation plan is not 
sufficient and detailed plans should be required. One commenter 
requested that detailed compensatory mitigation monitoring plans be 
required for activities

[[Page 11171]]

authorized by NWPs 12, 14, 21, 29, 39, 40, 41, 42, 43, 44, 45, 46, 47, 
48, 49, and 50.
    Conceptual mitigation plans are appropriate for submittal with pre-
construction notifications. These conceptual plans are useful in making 
initial determinations regarding the appropriateness of proposed 
compensatory mitigation. If not submitted with the pre-construction 
notification, detailed compensatory mitigation plans will be required 
prior to commencing the authorized activity in cases where the 
permittee is performing the mitigation. If the permittee is using a 
mitigation bank or in-lieu fee program, he or she must provide the name 
of the bank or program and the number and type of credits being 
purchased.
    One commenter suggested that paragraph (d)(2) be modified to 
include NWPs 20 and 38 with NWP 37, because of the emergency nature of 
these activities. We do not agree that this is necessary, because NWP 
20 does not require pre-construction notification and NWP 38 is not 
limited to emergency situations. We are adding numbers to the 
paragraphs within paragraph (d) to provide greater clarity.
    One commenter recommended modifying paragraph (d) to reduce the 
acreage threshold for agency coordination from \1/2\ acre to \1/10\ 
acre, because of the \1/10\ acre threshold for wetlands compensatory 
mitigation.
    The present threshold for agency coordination is sufficient, since 
activities resulting in the loss of greater than \1/2\ acre of waters 
of the United States have greater potential to result in more than 
minimal adverse effects. Decisions regarding the amount and type of 
compensatory mitigation that should be required for NWP activities are 
made by district engineers on a case-by-case basis in accordance with 
general condition 20 and other appropriate regulations and guidance. 
Requiring agency coordination for losses of less than \1/2\ acre would 
result in a substantial workload increase to Corps districts and the 
resource agencies, and is unlikely to provide significant additional 
protection for the aquatic environment.
    One commenter said that the authority to sign NWP verifications 
should not be delegated to Corps project managers.
    Districts have the authority to determine the appropriate level of 
signature authority for NWP verifications, to implement the NWP program 
effectively.
    This general condition is adopted with the modifications discussed 
above.
    GC 28. Single and Complete Project. We are adding a new general 
condition to clarify that the NWPs authorize only single and complete 
projects. This is in response to a commenter's concern about the 
removal of language from the 2002 NWPs which limited the use of certain 
NWPs to a single and complete project or a part of a single and 
complete project. That language was in NWPs 13, 15, 18, 19, 29, 39, 42, 
43, and 44.
    Limiting all NWPs to authorize only single and complete projects is 
a long-standing practice. In this new general condition, the authorized 
activity must be a single and complete project. In addition, this 
general condition states that the same NWP can be used only once to 
authorize that single and complete project. For example, NWP 39 cannot 
be used twice to authorize a commercial development. This general 
condition is consistent with general condition 24, Use of Multiple 
Nationwide Permits. The new general condition will help improve 
environmental protection by clarifying that piecemealing of activities 
that require Department of the Army permits is prohibited.
    Former general condition 27. Construction Period. We proposed to 
remove this NWP general condition.
    Several commenters expressed support for the removal of this 
general condition, stating that it would eliminate confusion about the 
time frames when the NWPs are in effect. Several commenters objected to 
the elimination of this general condition, stating that it was needed 
since it took into account unexpected situations, which can delay the 
completion of a project. One commenter opposed the removal of this 
general condition, stating that it provided necessary flexibility at 
the end of a NWP cycle, and still allowed the permittee to complete the 
work without having to request another permit or verification from the 
Corps. Several other commenters said that elimination of this general 
condition could result in considerable delays and economic burdens for 
completion of projects with no more than minimal adverse effects. One 
commenter stated that removing this general condition would result in 
more individual permits for activities that would not result in more 
than minimal impacts.
    We are removing this general condition, because it does not comply 
with Section 404(e)(2) of the Clean Water Act, which places a five-year 
limit on general permits issued under section 404. Since this general 
condition did not specify any limits on project completion dates, in 
effect it provided the district engineer with the authority to state 
that the NWP activity was authorized for any period of time. We believe 
that this is contrary to section 404(e)(2).
    Under the current NWP regulations, district engineers may issue NWP 
verification letters that are valid for a period of two years. In cases 
where an NWP verification letter expires before the NWP itself expires, 
the activity continues to be authorized by the NWP until the NWP 
expires. It is not necessary to issue a new verification during the 
five year period the NWP is in effect. Any special conditions that were 
imposed by the district engineer remain in effect after the NWP 
verification expires, unless the district engineer removes those 
conditions.
    Once the NWP expires, the permittee can utilize 33 CFR 330.6(b) to 
complete the work. That regulation allows permittees to continue work 
for one year in reliance on an NWP authorization, if that NWP has 
expired or been modified or revoked, and the activity is under 
construction or under contract to commence construction. If that work 
cannot be completed within that one-year time period, then the 
permittee would have to obtain another DA authorization. We continue to 
believe that 33 CFR 330.6(b) is sufficient to address the concern with 
projects that may not be completed before an NWP expires. For NWP 
activities that will require substantial amounts of time to complete, 
project proponents should consider whether it would be more 
advantageous to pursue an individual permit authorization. Individual 
permits can authorize greater flexibility in construction periods. An 
individual permit authorization can also be extended, as long as the 
district engineer determines that the time extension would be 
consistent with applicable regulations and would not be contrary to the 
public interest.
    One commenter requested clarification on whether newly issued NWP 
verifications for specific projects would be valid for five years or 
for only one to two years. Two commenters suggested that all NWP 
verifications should be issued with five-year expiration periods. 
Another commenter suggested that all NWP verifications should be set to 
expire concurrently with the NWPs themselves. Similarly, another 
commenter requested clarification on whether applicants could request 
NWP verifications with expiration dates corresponding to the new NWPs 
expiration date.
    In the November 30, 2004, issue of the Federal Register (69 FR 
69567) we

[[Page 11172]]

published a proposed rule that would allow district engineers to issue 
NWP verifications that would expire on the same date the NWP expires. 
Until that final rule is issued, the current 33 CFR 330.6(a)(3)(ii) 
applies, which states that an NWP verification letter can be valid for 
no more than two years. However, as stated above the activity continues 
to be authorized by the NWP until the NWP expires.

Definitions

    One commenter said that the NWP definitions should be promulgated 
through the Administrative Procedure Act rulemaking process, and placed 
in the Code of Federal Regulations since many of these terms apply to 
other aspects of the regulatory program.
    The definitions adopted today have been promulgated through the 
Administrative Procedure Act process. These definitions apply only to 
the NWP program. A separate rulemaking action would be required to 
adopt definitions with general applicability to the Corps Regulatory 
Program.
    One commenter asked for definitions of ordinary high water mark, 
adverse, land, waters of the United States, environmental, 
environmental impact, ``a timely manner'', regulatory efficiency, 
cumulative impacts, public interest factors, mitigation banks, 
permittee-responsible mitigation, in-lieu fee program, aquatic resource 
functions, and grandfathering. Another commenter requested a definition 
of ``temporary loss.''
    We are providing a separate definition of ordinary high water mark. 
Previously, this definition was in the definitions of ``open water'' 
and ``waterbody.'' The term ``waters of the United States'' is defined 
at 33 CFR part 328. We do not believe it is necessary to define, for 
the purposes of the NWP program, the terms ``environmental,'' 
``environmental impact,'' ``a timely manner,'' ``regulatory 
efficiency,'' or ``grandfathering.''
    Commonly accepted definitions for those terms are sufficient for 
the implementation of the NWP program. The Corps uses the definition of 
the term ``cumulative impact'' from the Council on Environmental 
Quality's regulation at 40 CFR 1508.7. The terms ``mitigation bank'' 
and ``in-lieu fee program'' are currently defined by the November 28, 
1995, mitigation banking guidance (60 FR 58605). The grandfather 
provisions for NWP authorizations are provided at 33 CFR 330.6(b). It 
is more appropriate to define the terms ``permittee-responsible 
mitigation'' and ``aquatic resource functions'' through the 
promulgation of the final compensatory mitigation rule required by 
Section 314 of the National Defense Authorization Act for Fiscal Year 
2004. Defining ``temporary loss'' is not desirable, because it would 
likely result in a reduction in flexibility in implementation of the 
NWP program. Where there is ambiguity, district engineers should have 
flexibility to determine, on a case-by-case basis, whether a particular 
activity causes a temporary or permanent loss of waters of the United 
States.
    Two commenters requested a definition of ``minimal effects.'' 
Another commenter said that this term should be defined regionally, 
since it cannot be defined at a national level.
    We continue to maintain our position that the term ``minimal 
effects'' cannot be simply defined at a national level. It is 
challenging to define it precisely even at smaller scales, such as 
states or watersheds. There is considerable variation in aquatic 
resource functions, services, and values across the country. There is 
also wide variation in those functions, services, and values at smaller 
landscape scales. Site-specific factors, such as the types and amounts 
of functions provided by waters, the services those aquatic resource 
functions provide, the value society places on those functions and 
services, the geomorphic setting of those waters, and other factors are 
important to consider when determining whether an NWP activity will 
result in minimal adverse effects on the aquatic environment. We 
believe the term ``minimal,'' while not precise, is well understood by 
the public and has not caused undue confusion in the implementation of 
the Section 404 program to date. A certain amount of flexibility on the 
part of district engineers to determine what is ``minimal'' in a 
particular context, after consideration of the factors discussed above, 
is necessary for the practical implementation of the program.
    Best management practices (BMPs). We proposed to modify this 
definition by removing the last sentence. One commenter suggested that 
we acknowledge that BMPs may have impacts on groundwater and subsurface 
water.
    Although best management practices may impact hydrology, the 
definition need not address that issue. The definition is adopted as 
proposed.
    Compensatory mitigation. We proposed to modify this definition by 
removing the phrase ``For the purpose of Section 10/404, compensatory 
mitigation is.'' We also proposed to replace ``creation'' with 
establishment (creation).'' One commenter expressed support for 
removing ``exceptional circumstances'' in relation to the use of 
preservation as a type of compensatory mitigation. One commenter stated 
that ``aquatic resource'' should be defined in the context of 
jurisdiction. Another commenter stated that this definition should be 
consistent with the other terms for different types of compensatory 
mitigation that are provided in this section, specifically the 
definition provided for establishment (creation).
    Compensatory mitigation may be provided by aquatic resources that 
are not subject to the Corps regulatory jurisdiction. Therefore, it is 
not necessary to modify this definition by replacing ``aquatic 
resources'' with ``waters of the United States.'' We have added the 
word ``creation'', to be consistent with ``establishment (creation),'' 
which is defined in this section. The definition is adopted as 
proposed.
    Currently serviceable. We proposed to move the term and definition 
from NWP 3 to this section since it is used for other NWPs. One 
commenter suggested that most culvert replacement projects, regardless 
of current serviceability, have minimal impacts and recommended adding 
language allowing a failed culvert to be considered currently 
serviceable, so that it would be eligible for NWP 3 authorization.
    While we agree that most culvert replacements have minimal impacts, 
the definition encourages maintenance to be conducted before the 
structure or fill falls into such a state of disrepair that it can no 
longer be considered serviceable. The definition is adopted as 
proposed.
    Discharge: We are adding a definition of the term ``discharge'' to 
clarify when a discharge of dredged or fill material occurs for an NWP 
activity. This definition clarifies that the term ``discharge'' as used 
in the NWPs, also applies to any activity that causes or results in a 
discharge, as defined at 33 CFR 323.2.
    Enhancement. We proposed to modify this definition to be consistent 
with the wetland project type described in Regulatory Guidance Letter 
02-02 and the definition in the Council on Environmental Quality's 
April 2006 report entitled ``Conserving America's Wetlands 2006: Two 
Years of Progress Implementing the President's Goal.'' We did not 
receive any comments on the proposed definition. The definition is 
adopted as proposed.
    Ephemeral stream. We did not propose any changes to this 
definition. Four commenters said that this definition should address 
the jurisdictional status of ephemeral

[[Page 11173]]

streams. Some of these commenters said that this definition should be 
removed, because these features are not jurisdictional. One commenter 
stated that the hydrologic criteria in the second and third sentences 
should be qualified as occurring in a ``typical year.'' One commenter 
suggested we define them as features that lack a connection to the 
water table and are not waters of the United States. One commenter said 
that this definition should state that groundwater is not typically a 
source of water for an ephemeral stream.
    We do not agree that it is appropriate to state in the definition 
of this term that ephemeral streams are not waters of the United States 
because many ephemeral streams are subject to Clean Water Act 
jurisdiction as waters of the United States. Further, neither the NWPs 
nor this preamble are intended to address jurisdictional issues. If an 
ephemeral stream is not a water of the United States, as defined at 33 
CFR part 328, then no Section 404 permit is required for discharges of 
dredged or fill material into it. An ephemeral stream that meets the 
criteria at 33 CFR part 328 is a water of the United States. The phrase 
``typical year'' applies to the entire definition, not just the first 
sentence. Groundwater is not a source of water for an ephemeral stream.
    The definition is adopted as proposed.
    Establishment (creation). We proposed to modify this definition to 
be consistent with the wetland project type described in Regulatory 
Guidance Letter 02-02 and the definition in the Council on 
Environmental Quality's April 2006 report entitled ``Conserving 
America's Wetlands 2006: Two Years of Progress Implementing the 
President's Goal.'' One commenter suggested defining ``upland'' and 
``deepwater site,'' and retaining the flexibility of the current term 
``creation'' when in-kind mitigation is conducted. One commenter said 
that the definition of ``creation'' should be retained until questions 
regarding the extent of the Corps jurisdiction are resolved. Another 
commenter recommended the removal of ``deepwater'' from this definition 
because deepwater areas are aquatic resources.
    We do not believe it is necessary to define the word ``upland'' for 
purposes of the NWP program. This definition need not specifically 
address jurisdictional issues. What constitutes an ``upland'' in 
contrast to an ``aquatic resource'' will depend on the practices in 
place at the time the determination is made. We are removing the word 
``deepwater'' because it is an aquatic resource. This definition is 
adopted with the modification discussed above.
    Historic property. In response to one commenter, we are adding this 
term to the ``Definitions'' section. It is adapted from the Advisory 
Council on Historic Preservation's definition at 36 CFR 800.16(l)(1), 
and is provided for the convenience of users of the NWPs.
    Independent utility. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Intermittent stream. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Loss of waters of the United States. We proposed to modify this 
definition by replacing the phrase ``above-grade, at-grade, or below-
grade fills'' with ``discharges of dredged or fill material'' to be 
consistent with the definitions of ``fill material'' and ``discharge of 
fill material'' issued on May 9, 2002 (67 FR 31129) at 33 CFR 323.2. We 
also proposed to eliminate the sentence stating that impacts to 
ephemeral streams are not included in the linear foot limits for stream 
impacts in NWPs 39, 40, 42, and 43, because of the proposed changes to 
those NWPs. We also proposed to add a sentence to this definition to 
clarify that activities exempt from section 404 permit requirements are 
not included when calculating the loss of waters of the United States.
    Three commenters stated that activities that are not regulated 
should not be included. One commenter asserted that temporary fills 
should be included as a loss because the functions and values may not 
return. Six commenters said that ephemeral streams should not be 
included when determining whether the proposed work exceeds the acreage 
limit of the NWP because the Corps lacks jurisdictional authority in 
these areas. One commenter stated that intermittent streams and 
artificially created wetlands should not be included for the same 
reason. Another commenter said that the acres of waters of the United 
States provided as compensatory mitigation should count towards the 
acreage limit. One commenter stated that the loss of stream bed should 
include inundation, in addition to filling and excavation.
    The first sentence of this definition states that the permanent 
adverse effects are caused by the regulated activity. Therefore, 
unregulated or exempt activities are not included when calculating the 
loss of waters of the United States. Temporary fills should not be 
considered as losses of waters of the United States, since they are 
required to be restored (see General Condition 13, Removal of Temporary 
Fills). If they are not restored properly, then the district engineer 
may consider them to be permanent losses. District engineers may also 
consider permanent losses of specific aquatic resource functions and 
services when determining if mitigation is required (see paragraph (h) 
of general condition 20, Mitigation). Ephemeral streams, intermittent 
streams, and man-made wetlands that meet the regulatory definition of 
``waters of the United States'' are included for the purposes of this 
definition. As discussed in paragraph (e) of general condition 20, 
compensatory mitigation cannot be used to decrease the acreage loss of 
waters of the United States for purposes of determining whether an NWP 
acreage threshold is exceeded. Mitigation can be used to ensure that 
adverse effects are minimal. Inundation does not usually result in the 
loss of stream bed. Once the cause of inundation has been removed, the 
normal water level of the stream will return. (Note: The use of the 
term ``flooding'' in the definition of ``loss of waters of the United 
States'' refers to the flooding of wetlands. This conversion of 
wetlands to open waters is considered a loss of waters.)
    We have modified the first sentence of this definition to make it a 
complete sentence. In the third sentence of this definition, we 
replaced the word ``existing'' with ``jurisdictional'' to clarify that 
the measurement applies to waters of the United States.
    The definition is adopted with the modifications discussed above.
    Non-tidal wetland. We did not propose any changes to this 
definition. One commenter noted that not all wetlands are waters of the 
United States. We agree and have removed the parenthetical expression 
from this definition.
    Open water. We proposed to change this definition by adding a 
sentence that describes what an ordinary high water mark is. One 
commenter said that the definition of ordinary high water mark should 
be removed because there is not common agreement regarding the 
definition of this term. One commenter recommended using the definition 
of ``ordinary high water mark'' from 1975 regulations. One commenter 
suggested removing the language defining ``ordinary high water mark'' 
and making it a separate definition. One commenter said that this 
definition should not include ephemeral waters because they are not 
open waters. Another commenter stated that this definition should be 
removed, because it is not used in the NWPs or general conditions.

[[Page 11174]]

    We have removed the language defining ``ordinary high water mark'' 
and provided it as a separate definition in this section. The 
definition is from 33 CFR 328.3(e). Ephemeral waters are considered 
open waters, because they have flowing or standing water, at least for 
short periods of time. This definition is used in NWPs 4, 27, 30 and 
47, as well as general conditions 9 and 20. The definition is adopted 
with the modification discussed above.
    Ordinary high water mark. Several commenters recommended providing 
a stand alone definition of this term.
    We have provided a definition of ordinary high water mark in this 
section. It is based on the definition at 33 CFR 328.3(e).
    Perennial stream. We did not propose any changes to this 
definition. One commenter said that perennial flow is dependent on 
time, not the water source, and suggested modification of this 
definition to state that groundwater is usually the primary source of 
water, since some perennial streams are fed by snow melt rather than 
groundwater. Another commenter stated that this definition should 
recognize that some perennial streams appear to be intermittent because 
of surface and subsurface flows in areas of karst topography.
    We acknowledge that in some parts of the country, some perennial 
streams are fed solely by snowmelt. For simplicity, we have not 
included snowmelt since a large majority of perennial streams have 
groundwater as the primary source of hydrology. When determining 
whether a particular stream segment is perennial, 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. District engineers can account for karst topography and other 
geological features when identifying perennial streams on a case-by-
case basis. It is not necessary to modify this definition to account 
for such geological features.
    The definition is adopted as proposed.
    Practicable. We proposed to move this definition from the current 
``mitigation'' general condition (GC 20) to the ``Definitions'' section 
of the NWPs. One commenter suggested that this definition should be 
modified to include consideration of the availability of suitable 
locations and constructability, for the purposes of mitigation.
    While we agree that these are factors involved with selecting 
mitigation sites, the term ``practicable'' applies to more than 
mitigation. The definition is adopted as proposed.
    Pre-construction notification. We did not receive any comments on 
the proposed definition. The definition is adopted as proposed.
    Preservation. We proposed to modify this definition to be 
consistent with the definition for ``protection/maintenance 
(preservation)'' in Regulatory Guidance Letter 02-02 and the definition 
in the Council on Environmental Quality's April 2006 report entitled 
``Conserving America's Wetlands 2006: Two Years of Progress 
Implementing the President's Goal.'' One commenter expressed concern 
with the usage of ``aquatic resources'' in the definition because it is 
too expansive and should be defined and limited to waters of the United 
States.
    Compensatory mitigation projects involving preservation may include 
areas that are not waters of the United States, such as non-wetland 
riparian areas next to streams or wetlands that are not subject to 
Clean Water Act jurisdiction. This definition is adopted as proposed.
    Re-establishment. We proposed to add this definition to be 
consistent with the wetland project type described in Regulatory 
Guidance Letter 02-02 and the definition in the Council on 
Environmental Quality's April 2006 report entitled ``Conserving 
America's Wetlands 2006: Two Years of Progress Implementing the 
President's Goal.'' One commenter suggested the definition should 
indicate re-establishment is a form of restoration. We do not believe 
that such clarification is necessary, since it is addressed by the 
definition for restoration. The definition is adopted as proposed.
    Rehabilitation. We proposed to add this definition to be consistent 
with the wetland project type described in Regulatory Guidance Letter 
02-02 and the definition in the Council on Environmental Quality's 
April 2006 report entitled ``Conserving America's Wetlands 2006: Two 
Years of Progress Implementing the President's Goal.'' One commenter 
suggested the definition should state rehabilitation is a form of 
restoration. We do not believe that such clarification is necessary, 
since it is addressed by the definition for restoration. The definition 
is adopted as proposed.
    Restoration. We proposed to modify this definition to be consistent 
with the wetland project type described in Regulatory Guidance Letter 
02-02 and the definition in the Council on Environmental Quality's 
April 2006 report entitled ``Conserving America's Wetlands 2006: Two 
Years of Progress Implementing the President's Goal.'' We did not 
receive any comments on the proposed definition. The definition is 
adopted as proposed.
    Riffle and pool complex. We did not propose any changes to this 
definition. One commenter said that a riffle and pool complex has a 
reoccurring pattern of riffles and pools, and is not limited to a 
single riffle and pool. One commenter stated that this definition 
should address steep gradients that are not conducive to forming riffle 
and pool complexes. One commenter said that riffle and pool complexes 
are too common to be a special aquatic site.
    The definition of this term was taken from 40 CFR 230.45. District 
engineers will use their judgment to identify riffle and pool complexes 
at project sites and to distinguish between riffle and pool complexes 
(which are found in areas of moderate grades) and step-pool complexes 
(which are found in areas with steep grades, where the stream bed 
material consists mostly of boulders and large rocks). The definition 
is adopted as proposed.
    Riparian areas. We proposed to replace the definition of 
``vegetated buffers'' with a definition of ``riparian areas'' since the 
latter term more accurately reflects what is normally required as 
mitigation for NWP activities where there are streams and other open 
waters on a project site. Two commenters objected to replacing the 
definition of ``vegetated buffers'' with a definition of ``riparian 
areas'' and said the terms are not interchangeable. One commenter 
supported the proposed change. Another commenter said that this 
definition does not match the definition developed by the National 
Research Council, and should be revised accordingly. Five commenters 
said that the use of riparian areas should be limited to areas adjacent 
to streams and other waters of the United States, other than wetlands. 
They said that the definition implies wetlands have riparian areas due 
to the use of the words ``lands'' and ``waterbody,'' which includes 
wetlands by definition. Three commenters requested that the Corps 
acknowledge that not all riparian areas are jurisdictional. One 
commenter said that this definition should exclude intermittent and 
ephemeral streams as waterbodies.
    We maintain that use of the term ``riparian areas'' is most 
appropriate, because it is the current term used to categorize the 
areas that meet the criteria in this definition. We also acknowledge 
that this definition does not contain all the concepts provided in the 
National Research Council's definition, but we have tried to provide

[[Page 11175]]

a simpler definition for use in the NWP program. We have modified this 
definition to clarify that lands next to wetlands are not riparian 
areas and to be consistent with the definition of ``waterbody.'' We 
acknowledge that not all riparian areas are subject to Clean Water Act 
jurisdiction, but it is not necessary to state that fact in this 
definition. However, the use of jurisdictional and non-jurisdictional 
riparian areas as compensatory mitigation is a legitimate method to 
provide compensatory mitigation for certain NWP activities. Riparian 
areas may be established and maintained next to intermittent streams, 
but in arid regions it may not be practicable to establish and maintain 
those areas next to ephemeral streams because there may not be 
sufficient water to sustain plant communities in those areas. The 
definition is adopted with the modification discussed above.
    Shellfish seeding. We have added a definition of this term. This 
definition was derived from the definition provided in the preamble 
discussion for the September 26, 2006, proposal (see 71 FR 56275).
    Single and complete project. We did not propose any changes to this 
definition. One commenter suggested that the district engineer be 
allowed to use multiple NWPs for projects that cross separate 
waterways. One commenter requested the definition be expanded to 
include phased projects.
    The definition already allows the district engineer the ability to 
use multiple NWPs on separate waterways. Individual phases of phased 
projects can be considered as single and complete projects only if they 
have independent utility and they satisfy the requirements of the 
specific NWP. We have revised the wording of this definition slightly 
to further clarify that single and complete projects must have 
independent utility and to further clarify how multiple stream 
crossings for linear projects are treated. (See also the discussion of 
new general condition 28, Single and Complete Project, above.) The 
definition is adopted as modified.
    Stormwater management. No comments were received on this 
definition. The definition is adopted as proposed.
    Stormwater management facilities. We did not propose any changes to 
this definition. One commenter said that this definition is too 
restrictive. The definition does list examples of facilities and some 
of their roles but not in an exclusive manner. The definition is 
adopted as proposed.
    Stream bed. We did not propose any changes to this definition. No 
comments were received on this definition. The definition is adopted as 
proposed.
    Stream channelization. We proposed to simplify this definition, by 
generally considering man-made changes to a stream's course, condition, 
capacity, or location to be stream channelization activities. One 
commenter fully supported the definition. One commenter requested 
clarification that mitigation projects involving a ``natural channel 
design'' do not constitute ``stream channelization.'' Four commenters 
stated that many accepted techniques of bank stabilization may not 
satisfy the definition. As a result, one commenter recommended removing 
the word ``condition'' in order to allow minor changes to the bank. 
Another suggested modifying this definition to state that additional 
work undertaken to improve aquatic services or to increase the net 
sinuosity is not stream channelization.
    Compensatory mitigation projects involving stream restoration 
activities normally would not be considered stream channelization, 
since they should not substantially disrupt normal stream process. The 
restoration activity should restore normal stream processes, based on 
comparison to reference stream systems in the vicinity of the proposed 
work. We acknowledge that some bank stabilization activities may result 
in stream channelization. This definition does not prohibit minor 
changes to the stream bank. As long as those changes are small, and do 
not disrupt normal stream processes, they would not be considered as 
stream channelization. District engineers will consider the overall net 
impacts, including beneficial and adverse impacts, to the course, 
condition, capacity or location of the stream when determining if a 
project will have more than minimal impacts on normal stream processes.
    One commenter suggested inserting ``natural'' to describe the 
stream to exclude ditches from being considered a stream. District 
engineers will determine on a case-by-case basis the type of waterbody 
that is a stream. This definition is adopted as proposed.
    Structure. We proposed to add this definition to the NWPs. One 
commenter said that references should be made to the structures 
included in NWPs 3 and 5 and that the definition ignores other common 
structures like culverts and bridges. One commenter observed that the 
definition involves examples that have fill. One commenter suggested 
the definition be rewritten as: ``man-made feature constructed in an 
area of regulated aquatic resources.''
    Adding references to NWPs 3 and 5 in this definition is 
unnecessary. The examples in this definition were adapted from 33 CFR 
322.2(b) and are not intended to be a complete list. Bridges may 
constitute structures, but bridges constructed over navigable waters 
are authorized by the U.S. Coast Guard. Culverts may consist mostly of 
fill material, in accordance with the definitions at 33 CFR 323.2. Our 
intent is not to imply that structures must not involve fill, since the 
construction of structures may also involve fill activities. We agree 
that structures must be manmade and have added this qualifier to the 
definition. The definition is adopted as modified.
    Tidal wetland. We did not propose any changes to this definition. 
One commenter stated that not all wetlands are waters of the United 
States and suggested adding that certain vegetation is associated with 
the wetland. One commenter stated the high tide line is not the spring 
high tide line.
    In the context of this definition, wetlands subject to the ebb and 
flow of the tide are waters of the United States. We acknowledge that 
the high tide line may include high tides other than spring high tides. 
Therefore, we have modified this definition by removing the language 
that discusses spring high tide lines. The definition is adopted as 
modified.
    Vegetated shallows. We did not propose any changes to this 
definition. No comments were received on this definition. The 
definition is adopted as proposed.
    Waterbody. We proposed to modify this definition to clarify that a 
waterbody is a jurisdictional water of the United States. We also 
proposed to include a definition of ``ordinary high water mark'' in the 
text of this definition. Five commenters said that the definition 
should be changed to reflect recent judicial rulings that affect Clean 
Water Act jurisdiction. They also stated that this term cannot be used 
to exert jurisdiction over areas that are not subject to Section 404 of 
the Clean Water Act.
    As stated in the preamble to the September 26, 2006, Federal 
Register notice, the purpose of this definition is not to identify 
which waterbodies are jurisdictional, but to clarify how waters of the 
United States are grouped into waterbodies, especially for the purposes 
of implementing 33 CFR 330.2(i), which addresses single and complete 
projects for the NWPs. We agree, and have clarified in the definition, 
that only jurisdictional waters can be waterbodies for purposes of the 
NWPs.

[[Page 11176]]

    One commenter asked for a list of other indicators to identify a 
waterbody and exert jurisdiction. One commenter requested that 
``adjacent'' be defined. One commenter inquired how the loss of waters 
calculation will be made when wetlands and waterbodies that are 
considered a single aquatic unit.
    It would not be appropriate to promulgate, through the NWP issuance 
process, a list of indicators to be used to identify waterbodies 
subject to regulatory jurisdiction. The term ``adjacent'' is defined at 
33 CFR 328.3(c). District engineers will determine, on a case-by-case 
basis, when waterbodies are separate for the purposes of identifying 
single and complete projects. We note that, except in the case of 
linear crossings (see definition of ``single and complete project''), 
all losses of waters of the United States, whether separate water 
bodies or not, are added together to determine whether an activity is a 
single and complete project that meets the acreage thresholds. The 
definition is adopted as proposed.

Administrative Requirements

Regulatory Flexibility Act
    One commenter objected to the proposed certification for Regulatory 
Flexibility Act compliance, and indicated that a Regulatory Impact 
Analysis is necessary. This commenter stated that the Corps failed to 
analyze the costs or other burdens that NWP impose on small entities, 
and compare those costs or burdens to alternatives. The commenter also 
said that the Corps needs to consider burdens placed on those small 
entities that need to get individual permits, since the proposed NWPs 
determine who qualifies for NWPs, as well as those who must get 
individual permits. One commenter said that an initial regulatory 
flexibility analysis must be provided for public comment, and stated 
that the Corps must withdraw the proposed NWPs and make an initial 
regulatory flexibility analysis available for public review and 
comment.
    Our Regulatory Flexibility Act certification was done in the 
context of the statutory requirements underlying the NWP program: the 
permit requirements under Section 404 of the Clean Water Act and 
Section 10 of the Rivers and Harbors Act of 1899. The NWPs (or any 
other general permits) can only authorize activities with minimal 
individual and cumulative adverse effects on the environment; other 
activities must obtain individual permits. Because the permitted 
impacts are minimal, the burden on permittees for obtaining coverage 
under the NWP is also low. Generally, permittees are required to submit 
a pre-construction notification and adopt common sense, low-cost 
practices to ensure that adverse effects are minimal. Larger projects 
are also required to provide compensatory mitigation, but the scope of 
mitigation is commensurate with the impacts of the project and usually 
does not constitute a ``significant economic impact.'' Further, such 
larger projects are less likely to be undertaken by small businesses. 
We continue to believe that our certification that the NWPs will not 
have a significant economic impact on a substantial number of small 
entities is appropriate. As a result, a formal Regulatory Flexibility 
Analysis is not required.
Unfunded Mandates
    One commenter said that the Corps must provide a quantified 
assessment of costs and benefits of the permits (rule), in accordance 
with the Unfunded Mandates Reform Act. The costs of these permits 
(mostly paperwork costs associated with filing pre-construction 
notifications, estimated at 10 hours per pre-construction notification) 
do not rise to the level of an unfunded mandate, as defined in the 
statute. As a result, it is not necessary under UMRA to quantify the 
costs and benefits of this action.
Paperwork Reduction Act
    A commenter stated that the estimate of time required to prepare a 
complete pre-construction notification is too low, because of the 
requirement to submit a delineation of waters of the United States with 
the pre-construction notification.
    We believe the time estimates are accurate, because many activities 
will not require a complex delineation of waters of the United States. 
Most pre-construction notifications will have simple delineations 
showing the locations of waters near the project. The estimated time is 
an average for all projects.
Regional Conditioning of the 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, 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 or Tribal water 
quality certification or for state Coastal Zone Management Act 
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.

Contact Information for Corps District Engineers

Alabama

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

Alaska

Alaska District Engineer, ATTN: CEPOA-CO-R, P.O. Box 6898, Elmendorf 
AFB, AK 99506-6898.

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-RO, 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-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019.

Georgia

Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889, Savannah, 
GA 31402-0889.

[[Page 11177]]

Hawaii

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

Idaho

Walla Walla District Engineer, ATTN: CENWW-RD, 201 North 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-OP-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-OD-R, 106 South 15th Street, 
Omaha, NE 68102-1618.

Nebraska

Omaha District Engineer, ATTN: CENWO-OD-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.

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-OD-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-RO, 1645 S. 101st East Ave, Tulsa, 
OK 74128-4609.

Oregon

Portland District Engineer, ATTN: CENWP-OD-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, 69A Hagood Ave, 
Charleston, SC 29403-5107.

South Dakota

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

Tennessee

Nashville District Engineer, ATTN: CELRN-OP-F, 3701 Bell Road, 
Nashville, TN 37214.

Texas

Galveston District Engineer, ATTN: CESWG-PE-R, P.O. Box 1229, 
Galveston, TX 77553-1229.

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 98124-3755.

West Virginia

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

Wisconsin

St. Paul District Engineer, ATTN: CEMVP-OP-R, 190 Fifth Street East, 
St. Paul, MN 55101-1638.

Wyoming

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

[[Page 11178]]

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 and Virgin Islands

Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019.

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

    These NWPs will increase the number of permittees who are required 
to submit a pre-construction notification. The content of the pre-
construction notification is not changed from the current NWPs, but the 
paperwork burden will increase because of the increased number of pre-
construction notifications submitted. The Corps estimates the increased 
paperwork burden at 4,500 hours per year. This is based on an average 
burden to complete and submit a pre-construction notification of 10 
hours, and an estimated 450 additional projects that will require pre-
construction notifications. Prospective permittees who are required to 
submit a pre-construction notification for a particular NWP, or who are 
requesting verification that a particular activity qualifies for NWP 
authorization, may use the current standard Department of the Army 
permit application form or submit the required information in a letter. 
The total burden for filing pre-construction notifications is estimated 
at 300,000 hours per year (10 hours times 30,000 projects per year 
requiring pre-construction notification). In addition, we are adding a 
requirement for existing aquaculture activities using NWP 48 that do 
not require a pre-construction notification to instead file a short 
report indicating basic information about the existing shellfish 
production operation. The estimated burden for this new requirement is 
1,800 hours per year (900 existing aquaculture facilities times 2 hours 
per report). The information in the report is a subset of the 
information required for a full pre-construction notification.
    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 on April 30, 2008).

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we 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 this action is a ``significant regulatory action'' and it was 
submitted to OMB for review.

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 issuance of NWPs does not have federalism 
implications. We do not believe that the NWPs 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 NWPs will 
not impose any additional substantive obligations on State or local 
governments. Therefore, Executive Order 13132 does not apply to these 
final NWPs.

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 the proposed issuance and 
modification of NWPs 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.
    The statutes under which the Corps issues, reissues, or modifies 
NWPs are Section 404(e) of the Clean Water Act (33 U.S.C. 1344(e)) and 
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). Under 
section 404, Department of the Army (DA) permits are required for 
discharges of dredged or fill material into waters of the United 
States. Under section 10, DA permits are required for any structures or 
other work that affect the course, location, or condition of navigable 
waters of the United States. Small entities proposing to discharge 
dredged or fill material into waters of the United States and/or 
conduct work in navigable waters of the United States must obtain DA 
permits to conduct those activities, unless a particular activity is 
exempt from those permit requirements. Individual permits and general 
permits can be issued by the Corps to satisfy the permit requirements 
of these two statutes. Nationwide permits are a form of general permit 
issued by the Chief of Engineers.

[[Page 11179]]

    Nationwide permits automatically expire and become null and void if 
they are not modified or reissued within five years of their effective 
date (see 33 CFR 330.6(b)). Furthermore, Section 404(e) of the Clean 
Water Act states that general permits, including NWPs, can be issued 
for no more than 5 years. If the current NWPs are not reissued small 
entities and other project proponents would be required to obtain 
alternative forms of DA permits (i.e., standard permits, letters of 
permission, or regional general permits) for activities involving 
discharges of dredged or fill material into waters of the United States 
or structures or work in navigable waters of the United States. 
Regional general permits that authorize similar activities as the NWPs 
may be available in some geographic areas, so small entities conducting 
regulated activities outside those geographic areas would have to 
obtain individual permits for activities that require DA permits.
    Nationwide permits help relieve regulatory burdens on small 
entities who need to obtain DA permits. They provide an expedited form 
of authorization, provided the project proponent meets all terms and 
conditions of the NWPs. In FY 2003, the Corps issued 35,317 NWP 
verifications, with an average processing time of 27 days. Those 
numbers do not include activities that are authorized by NWP, where the 
project proponent was not required to submit a pre-construction 
notification or did not voluntarily seek verification that an activity 
qualified for NWP authorization. The average processing times for the 
4,035 standard permits and the 3,040 letters of permission issued 
during FY 2003 were 187 days and 89 days, respectively. The NWPs issued 
today are expected to result in a slight increase in the numbers of 
activities potentially qualifying for NWP authorization. The estimated 
numbers of activities qualifying for NWP authorization are provided in 
the decision documents that were prepared for each NWP. The NWPs issued 
today are not expected to significantly increase cost or paperwork 
burden for authorized activities (relative to the NWPs issued in 2002), 
including those conducted by small businesses.
    The costs for obtaining coverage under an NWP are low. We estimate 
the average time to prepare and file a pre-construction notification, 
for those activities where a pre-construction notification is required, 
is 10 hours. We do not believe this constitutes a ``significant 
economic impact'' on project proponents, including small businesses.
    Another requirement of Section 404(e) of the Clean Water Act is 
that general permits, including NWPs, authorize only those activities 
that result in minimal adverse environmental effects, individually and 
cumulatively. The terms and conditions of the NWPs, such as acreage or 
linear foot limits, are imposed to ensure that the NWPs authorize only 
those activities that result in minimal adverse effects on the aquatic 
environment and other public interest review factors. In addition to 
the paperwork burden of filing a pre-construction notification, many 
NWPs require that low-cost, common sense practices be used to minimize 
adverse effects. These requirements also do not constitute 
``significant economic impacts.''
    After considering the economic impacts of these NWPs on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. Small entities may obtain 
required DA authorizations through the NWPs, in cases where there are 
applicable NWPs authorizing those activities and the proposed work will 
result in minimal adverse effects on the aquatic environment and other 
public interest review factors. The terms and conditions of these NWPs 
will not impose substantially higher costs on small entities than those 
of the previous NWPs. If an NWP is not available to authorize a 
particular activity, then another form of DA authorization, such as an 
individual permit or regional general permit, must be secured. However, 
as noted above, we expect a slight increase in the number of activities 
than can be authorized through NWPs, because we have issued several new 
NWPs, and we are removing some limitations in existing NWPs and 
replacing them with pre-construction notification requirements that 
will allow the district engineer to judge whether any adverse effects 
of the proposed project are more than minimal, and authorize the 
project under an NWP if they are not.

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 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 NWPs issued today do 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 NWPs are generally consistent with 
current agency practice, do not impose new substantive requirements and 
therefore do 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 NWPs issued today are not subject to the requirements of 
Sections 202 and 205 of the UMRA. For the same reasons, we have 
determined that the NWPs contains no regulatory requirements that might 
significantly or uniquely affect small governments. Therefore, the 
proposed issuance and modification of NWPs 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

[[Page 11180]]

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 NWPs issued today are not subject to this Executive Order 
because they are not economically significant as defined in Executive 
Order 12866. In addition, these NWPs do 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 NWPs issued today do not have tribal implications. They are 
generally consistent with current agency practice and 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. Therefore, Executive Order 13175 does not 
apply to this proposal. Corps districts are conducting government-to-
government consultation with Indian tribes to develop regional 
conditions that help protect tribal rights and trust resources, and to 
facilitate compliance with general condition 16, Tribal Rights.

Environmental Documentation

    A decision document, which includes an environmental assessment and 
Finding of No Significant Impact (FONSI), has been prepared for each 
NWP. These decision documents are available at: http://www.regulations.gov (docket ID number COE-2006-0005). They are also 
available by contacting Headquarters, U.S. Army Corps of Engineers, 
Operations and Regulatory Community of Practice, 441 G Street, NW., 
Washington, DC 20314-1000.

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 the final NWPs 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 NWPs are 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 NWPs issued today are not expected to negatively impact any 
community, and therefore are not expected to cause any 
disproportionately high and adverse impacts to minority or low-income 
communities.

Executive Order 13211

    The proposed NWPs are 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.

Authority

    We are issuing new NWPs, modifying existing NWPs, and reissuing 
NWPs without change under the authority of Section 404(e) of the Clean 
Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act 
of 1899 (33 U.S.C. 401 et seq.).

    Dated: March 1, 2007.
Don T. Riley,
Major General, U.S. Army, Director of Civil Works.

Nationwide Permits, Conditions, Further Information, and Definitions

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

Nationwide Permits

1. Aids to Navigation.
2. Structures in Artificial Canals.
3. Maintenance.
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices 
and Activities.
5. Scientific Measurement Devices.
6. Survey Activities.
7. Outfall Structures and Associated Intake Structures.
8. Oil and Gas Structures on the Outer Continental Shelf.
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 Operations.
22. Removal of Vessels.
23. Approved Categorical Exclusions.
24. Indian Tribe or State Administered Section 404 Programs.
25. Structural Discharges.
26. [Reserved].
27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities.
28. Modifications of Existing Marinas.
29. Residential Developments.
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. Commercial and Institutional Developments.
40. Agricultural Activities.

[[Page 11181]]

41. Reshaping Existing Drainage Ditches.
42. Recreational Facilities.
43. Stormwater Management Facilities.
44. Mining Activities.
45. Repair of Uplands Damaged by Discrete Events.
46. Discharges in Ditches.
47. Pipeline Safety Program Designated Time Sensitive Inspections 
and Repairs.
48. Existing Commercial Shellfish Aquaculture Activities.
49. Coal Remining Activities.
50. Underground Coal Mining Activities.

Nationwide Permit General Conditions

1. Navigation.
2. Aquatic Life Movements.
3. Spawning Areas.
4. Migratory Bird Breeding Areas.
5. Shellfish Beds.
6. Suitable Material.
7. Water Supply Intakes.
8. Adverse Effects from Impoundments.
9. Management of Water Flows.
10. Fills Within 100-Year Floodplains.
11. Equipment.
12. Soil Erosion and Sediment Controls.
13. Removal of Temporary Fills.
14. Proper Maintenance.
15. Wild and Scenic Rivers.
16. Tribal Rights.
17. Endangered Species.
18. Historic Properties.
19. Designated Critical Resource Waters.
20. Mitigation.
21. Water Quality.
22. Coastal Zone Management.
23. Regional and Case-by-Case Conditions.
24. Use of Multiple Nationwide Permits.
25. Transfer of Nationwide Permit Verifications.
26. Compliance Certification.
27. Pre-Construction Notification.
28. Single and Complete Project.

Further Information

Definitions.
Best management practices (BMPs).
Compensatory mitigation.
Currently serviceable.
Discharge.
Enhancement.
Ephemeral stream.
Establishment (creation).
Historic property.
Independent utility.
Intermittent stream.
Loss of waters of the United States.
Non-tidal wetland.
Open water.
Ordinary high water mark.
Perennial stream.
Practicable.
Pre-construction notification.
Preservation.
Re-establishment.
Rehabilitation.
Restoration.
Riffle and pool complex.
Riparian areas.
Shellfish seeding.
Single and complete project.
Stormwater management.
Stormwater management facilities.
Stream bed.
Stream channelization.
Structure.
Tidal wetland.
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 (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 a navigable water of the United States has 
been previously authorized (see 33 CFR 322.5(g)). (Section 10)
    3. Maintenance. (a) 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 that are necessary to make the 
repair, rehabilitation, or replacement are authorized. 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.
    (b) This NWP also authorizes the removal of 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. 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. This 200 
foot limit does not apply to maintenance dredging to remove accumulated 
sediments blocking or restricting outfall and intake structures or to 
maintenance dredging to remove accumulated sediments from canals 
associated with outfall and intake structures. All dredged or excavated 
materials must be deposited and retained in an upland area unless 
otherwise specifically approved by the district engineer under separate 
authorization. The placement of riprap must be the minimum necessary to 
protect the structure or to ensure the safety of the structure. Any 
bank stabilization measures not directly associated with the structure 
will require a separate authorization from the district engineer.
    (c) This NWP also authorizes temporary structures, fills, and work 
necessary to conduct the maintenance activity. Appropriate measures 
must be taken to maintain normal downstream flows and minimize flooding 
to the maximum extent practicable, when temporary structures, work, and 
discharges, including cofferdams, are necessary for construction 
activities, access fills, or dewatering of construction sites. 
Temporary fills must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. Temporary fills must be 
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be 
revegetated, as appropriate.
    (d) This NWP does not authorize maintenance dredging for the 
primary purpose of navigation or beach restoration. This NWP does not 
authorize new stream channelization or stream relocation projects.
    Notification: For activities authorized by paragraph (b) of this 
NWP, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 27). Where maintenance dredging is proposed, the pre-
construction notification must include information regarding the 
original design capacities and configurations of the outfalls, intakes, 
small impoundments, and canals. (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 Clean Water Act 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, and

[[Page 11182]]

clam and oyster digging, and small fish attraction devices such as open 
water fish concentrators (sea kites, etc.). This NWP does not authorize 
artificial reefs or impoundments and semi-impoundments of waters of the 
United States 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. (Sections 10 and 404)
    6. Survey Activities. Survey activities, such as core sampling, 
seismic exploratory operations, plugging of seismic shot holes and 
other exploratory-type bore holes, exploratory trenching, soil surveys, 
sampling, and historic resources surveys. For the purposes of this NWP, 
the term ``exploratory trenching'' means mechanical land clearing of 
the upper soil profile to expose bedrock or substrate, for the purpose 
of mapping or sampling the exposed material. The area in which the 
exploratory trench is dug must be restored to its pre-construction 
elevation upon completion of the work. In wetlands, the top 6 to 12 
inches of the trench should normally be backfilled with topsoil from 
the trench. This NWP authorizes the construction of temporary pads, 
provided the discharge does not exceed 25 cubic yards. 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 are not authorized 
by this NWP; the plugging of such wells is authorized. Fill placed for 
roads 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 
Clean Water Act. (Sections 10 and 404)
    7. Outfall Structures and Associated Intake Structures. Activities 
related to the construction or modification of outfall structures and 
associated intake structures, where the effluent from the outfall is 
authorized, conditionally authorized, or specifically exempted by, or 
that are otherwise in compliance with regulations issued under the 
National Pollutant Discharge Elimination System Program (Section 402 of 
the Clean Water Act). The construction of intake structures is not 
authorized by this NWP, unless they are directly associated with an 
authorized outfall structure.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Sections 10 and 404)
    8. Oil and Gas Structures on the Outer Continental Shelf. 
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 Department of the Interior, Minerals 
Management Service. 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). The district engineer will review such 
proposals to ensure compliance with the provisions of the fairway 
regulations in 33 CFR 322.5(l). Any Corps review under this NWP 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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (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 U.S. Coast Guard 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, repair, and removal of utility lines and 
associated facilities in waters of the United States, provided the 
activity does not result in the loss of greater than \1/2\ acre of 
waters of the United States.
    Utility lines: This NWP authorizes the construction, maintenance, 
or repair of utility lines, including outfall and intake structures, 
and the associated excavation, backfill, or bedding for the utility 
lines, in all waters of the United States, provided there is no change 
in pre-construction 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. The term 
``utility line'' does not include activities that drain a water of the 
United States, such as drainage tile or french drains, but it does 
apply to pipes conveying drainage from another area.
    Material resulting from trench excavation may be temporarily 
sidecast into waters of the United States for no more than three 
months, 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 side casting for no more than a total of 180 
days, where appropriate. In wetlands, the top 6 to 12 inches of the 
trench should normally be backfilled with topsoil from the trench. The 
trench cannot be constructed or backfilled in such a manner as to drain 
waters of the United States (e.g., backfilling with extensive gravel 
layers, creating a french drain effect). Any exposed slopes and stream 
banks must be stabilized immediately upon completion of the utility 
line crossing of each waterbody.
    Utility line substations: This NWP authorizes the construction, 
maintenance, or expansion of substation facilities associated with a 
power line or utility line in non-tidal waters of the United States, 
provided the activity, in combination with all other activities 
included in one single and complete project, does not result in the 
loss of greater than \1/2\ acre of waters of the United States. This 
NWP does not authorize discharges into non-tidal wetlands adjacent to 
tidal waters of the United States to construct, maintain, or expand 
substation facilities.
    Foundations for overhead utility line towers, poles, and anchors: 
This NWP authorizes the construction or maintenance of foundations for 
overhead utility line towers, poles, and anchors in all waters of the 
United States, provided the foundations are the minimum size necessary 
and separate footings for each tower leg (rather than

[[Page 11183]]

a larger single pad) are used where feasible.
    Access roads: This NWP authorizes the construction of access roads 
for the construction and maintenance of utility lines, including 
overhead power lines and utility line substations, in non-tidal waters 
of the United States, provided the total discharge from a single and 
complete project does not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters for access 
roads. Access roads must be the minimum width necessary (see Note 2, 
below). Access roads must be constructed so that the length of the road 
minimizes any adverse effects on waters of the United States and must 
be as near as possible to pre-construction contours and elevations 
(e.g., at grade corduroy roads or geotextile/gravel roads). Access 
roads constructed above pre-construction contours and elevations in 
waters of the United States must be properly bridged or culverted to 
maintain surface flows.
    This NWP may authorize utility lines in or affecting navigable 
waters of the United States even if there is no associated discharge of 
dredged or fill material (See 33 CFR part 322). 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.
    This NWP also authorizes temporary structures, fills, and work 
necessary to conduct the utility line activity. Appropriate measures 
must be taken to maintain normal downstream flows and minimize flooding 
to the maximum extent practicable, when temporary structures, work, and 
discharges, including cofferdams, are necessary for construction 
activities, access fills, or dewatering of construction sites. 
Temporary fills must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. Temporary fills must be 
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be 
revegetated, as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if any of the following criteria are met: (1) The activity involves 
mechanized land clearing in a forested wetland for the utility line 
right-of-way; (2) a section 10 permit is required; (3) the utility line 
in waters of the United States, excluding overhead lines, exceeds 500 
feet; (4) the utility line is placed within a jurisdictional area 
(i.e., water of the United States), and it runs parallel to a stream 
bed that is within that jurisdictional area; (5) discharges that result 
in the loss of greater than \1/10\-acre of waters of the United States; 
(6) permanent access roads are constructed above grade in waters of the 
United States for a distance of more than 500 feet; or (7) permanent 
access roads are constructed in waters of the United States with 
impervious materials. (See general condition 27.) (Sections 10 and 404)


    Note 1: Where the proposed utility line is constructed or 
installed in navigable waters of the United States (i.e., section 10 
waters), copies of the pre-construction notification 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.


    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, accordance with 
the requirements for temporary fills.


    Note 3: Pipes or pipelines used to transport gaseous, liquid, 
liquescent, or slurry substances over navigable waters of the United 
States are considered to be bridges, not utility lines, and may 
require a permit from the U.S. Coast Guard pursuant to Section 9 of 
the Rivers and Harbors Act of 1899. However, any discharges of 
dredged or fill material into waters of the United States associated 
with such pipelines will require a section 404 permit (see NWP 15).


    13. Bank Stabilization. Bank stabilization activities necessary for 
erosion prevention, provided the activity meets all of the following 
criteria:
    (a) No material is placed in excess of the minimum needed for 
erosion protection;
    (b) The activity is no more than 500 feet in length along the bank, 
unless this criterion is waived in writing by the district engineer;
    (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, unless this criterion is waived in 
writing by the district engineer;
    (d) The activity does not involve discharges of dredged or fill 
material into special aquatic sites, unless this criterion is waived in 
writing by the district engineer;
    (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 water of 
the United States;
    (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 not a stream 
channelization activity.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if the bank stabilization activity: (1) Involves discharges into 
special aquatic sites; (2) is in excess of 500 feet in length; or (3) 
will involve the discharge of greater than an average of one cubic yard 
per running foot along the bank below the plane of the ordinary high 
water mark or the high tide line. (See general condition 27.) (Sections 
10 and 404)
    14. Linear Transportation Projects. Activities required for the 
construction, expansion, modification, or improvement of linear 
transportation projects (e.g., roads, highways, railways, trails, 
airport runways, and taxiways) in waters of the United States. For 
linear transportation projects in non-tidal waters, the discharge 
cannot cause the loss of greater than \1/2\-acre of waters of the 
United States. For linear transportation projects in tidal waters, the 
discharge cannot cause the loss of greater than \1/3\-acre of waters of 
the United States. Any stream channel modification, including bank 
stabilization, is limited to the minimum necessary to construct or 
protect the linear transportation project; such modifications must be 
in the immediate vicinity of the project.
    This NWP also authorizes temporary structures, fills, and work 
necessary to construct the linear transportation project. Appropriate 
measures must be taken to maintain normal downstream flows and minimize 
flooding to the maximum extent practicable, when temporary structures, 
work, and discharges, including cofferdams, are necessary for 
construction activities, access fills, or dewatering of construction 
sites. Temporary fills must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. Temporary fills 
must be removed in their entirety and the affected areas returned to 
pre-construction elevations. The areas affected by temporary fills must 
be revegetated, as appropriate.
    This NWP 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.

[[Page 11184]]

    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The loss of waters of the United States exceeds \1/10\ acre; or 
(2) there is a discharge in a special aquatic site, including wetlands. 
(See general condition 27.) (Sections 10 and 404)


    Note: Some discharges for the construction of farm roads or 
forest roads, or temporary roads for moving mining equipment, may 
qualify for an exemption under Section 404(f) of the Clean Water Act 
(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 United States, including cofferdams, abutments, 
foundation seals, piers, and temporary construction and access fills, 
provided such discharges have been authorized by the U.S. Coast Guard 
as part of the bridge permit. Causeways and approach fills are not 
included in this NWP and will require a separate section 404 permit. 
(Section 404)
    16. Return Water From Upland Contained Disposal Areas. Return water 
from an upland contained dredged material disposal area. 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. The dredging activity may require a section 404 permit (33 
CFR 323.2(d)), and will require a section 10 permit if located in 
navigable waters of the United States. (Section 404)
    17. Hydropower Projects. Discharges of dredged or fill material 
associated with hydropower projects having: (a) Less than 5000 kW of 
total generating capacity at existing reservoirs, where the project, 
including the fill, is licensed by the Federal Energy Regulatory 
Commission (FERC) under the Federal Power Act of 1920, as amended; or 
(b) a licensing exemption granted by the FERC 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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Section 404)
    18. Minor Discharges. Minor discharges of dredged or fill material 
into all waters of the United States, provided 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 will not cause the loss of more than 1/10 acre of 
waters of the United States; and
    (c) The discharge is not placed for the purpose of a stream 
diversion.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge or the volume of area excavated exceeds 10 cubic 
yards below the plane of the ordinary high water mark or the high tide 
line, or (2) the discharge is in a special aquatic site, including 
wetlands. (See general condition 27.) (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 United States (i.e., section 10 waters). 
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 United States (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 that 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. This NWP also authorizes activities required for 
the cleanup of oil releases in waters of the United States from 
electrical equipment that are governed by EPA's polychlorinated 
biphenyl spill response regulations at 40 CFR part 761. (Sections 10 
and 404)
    21. Surface Coal Mining Operations. Discharges of dredged or fill 
material into waters of the United States associated with surface coal 
mining and reclamation operations provided the activities are already 
authorized, or are currently being processed as part of an integrated 
permit processing procedure, by the Department of Interior (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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 27.) (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-made obstructions 
to navigation. This NWP does not authorize maintenance dredging, shoal 
removal, or riverbank snagging.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The vessel is listed or eligible for listing in the National 
Register of Historic Places; or (2) the activity is conducted in a 
special aquatic site, including coral reefs and wetlands. (See general 
condition 27.) If condition 1 above is triggered, the permittee cannot 
commence the activity until informed by the district engineer that 
compliance with the ``Historic Properties'' general condition is 
completed. (Sections 10 and 404)


    Note 1: If a removed vessel is disposed of in waters of the 
United States, a permit from the U.S. EPA may be required (see 40 
CFR 229.3). If a Department of the Army permit is required for 
vessel disposal in waters of the United States, separate 
authorization will be required.


    Note 2: Compliance with general condition 17, Endangered 
Species, and general condition 18, Historic Properties, is required 
for all NWPs. The concern with historic properties is emphasized in 
the notification requirements for this NWP because of the likelihood 
that submerged vessels may be historic properties.


    23. Approved Categorical Exclusions. Activities undertaken, 
assisted, authorized, regulated, funded, or financed, in whole or in 
part, by another Federal agency or department where:
    (a) That agency or department has determined, pursuant to the 
Council on Environmental Quality's implementing regulations for the 
National Environmental Policy Act (40 CFR part 1500 et seq.), that the 
activity is categorically excluded from environmental documentation, 
because it is included within a category of actions which neither 
individually nor

[[Page 11185]]

cumulatively have a significant effect on the human environment; and
    (b) The Office of the Chief of Engineers (Attn: CECW-CO) has 
concurred with that agency's or department's determination that the 
activity is categorically excluded and approved the activity for 
authorization under NWP 23.
    The Office of the Chief of Engineers may require additional 
conditions, including pre-construction notification, for authorization 
of an agency's categorical exclusions under this NWP.
    Notification: Certain categorical exclusions approved for 
authorization under this NWP require the permittee to submit a pre-
construction notification to the district engineer prior to commencing 
the activity (see general condition 27). The activities that require 
pre-construction notification are listed in the appropriate Regulatory 
Guidance Letters. (Sections 10 and 404)


    Note: The agency or department may submit an application for an 
activity believed to be categorically excluded to the Office of the 
Chief of Engineers (Attn: CECW-CO). Prior to approval for 
authorization under this NWP of any agency's activity, the Office of 
the Chief of Engineers will solicit public comment. As of the date 
of issuance of this NWP, agencies with approved categorical 
exclusions are the: Bureau of Reclamation, Federal Highway 
Administration, and U.S. Coast Guard. Activities approved for 
authorization under this NWP as of the date of this notice are found 
in Corps Regulatory Guidance Letter 05-07, which is available at: 
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/rglsindx.htm. 
Any future approved categorical exclusions will be announced in 
Regulatory Guidance Letters and posted on this same Web site.


    24. Indian Tribe or State Administered Section 404 Programs. Any 
activity permitted by a state or Indian Tribe 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. 
(Section 10)


    Note 1: As of the date of the promulgation of this NWP, only New 
Jersey and Michigan administer their own section 404 permit 
programs.


    Note 2: Those activities that do not involve an Indian Tribe or 
State section 404 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)).

    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 United States. (Section 404)
    26. [Reserved]
    27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities. Activities in waters of the United States associated with 
the restoration, enhancement, and establishment of tidal and non-tidal 
wetlands and riparian areas and the restoration and enhancement of non-
tidal streams and other non-tidal open waters, provided those 
activities result in net increases in aquatic resource functions and 
services.
    To the extent that a Corps permit is required, activities 
authorized by this NWP include, but are not limited to: the removal of 
accumulated sediments; the installation, removal, and maintenance of 
small water control structures, dikes, and berms; the installation of 
current deflectors; the enhancement, restoration, or establishment of 
riffle and pool stream structure; the placement of in-stream habitat 
structures; modifications of the stream bed and/or banks to restore or 
establish 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; shellfish seeding; 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 nuisance vegetation; and 
other related activities. Only native plant species should be planted 
at the site.
    This NWP authorizes the relocation of non-tidal waters, including 
non-tidal wetlands and streams, on the project site provided there are 
net increases in aquatic resource functions and services.
    Except for the relocation of non-tidal waters on the project site, 
this NWP does not authorize the conversion of a stream or natural 
wetlands to another aquatic habitat type (e.g., stream to wetland or 
vice versa) or uplands. This NWP does not authorize stream 
channelization. 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 establishment 
activities conducted: (1) In accordance with the terms and conditions 
of a binding wetland enhancement, restoration, or establishment 
agreement between the landowner and the U.S. Fish and Wildlife Service 
(FWS), the Natural Resources Conservation Service (NRCS), the Farm 
Service Agency (FSA), the National Marine Fisheries Service (NMFS), the 
National Ocean Service (NOS), or their designated state cooperating 
agencies; (2) as voluntary wetland restoration, enhancement, and 
establishment actions documented by the NRCS or USDA Technical Service 
Provider pursuant to NRCS Field Office Technical Guide standards; or 
(3) on 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, 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 establishment activities). The reversion 
must occur within five years after expiration of a limited term wetland 
restoration or establishment agreement or permit, and is authorized in 
these circumstances even if the discharge occurs after this NWP 
expires. The five-year reversion limit does not apply to agreements 
without time limits reached between the landowner and the FWS, NRCS, 
FSA, NMFS, NOS, or an appropriate state cooperating agency. This NWP 
also authorizes discharges of dredged or fill material in waters of the 
United States for the reversion of wetlands that were restored, 
enhanced, or established on prior-converted cropland that has not been 
abandoned or on uplands, in accordance with a binding agreement between 
the landowner and NRCS, FSA, FWS, or their designated state cooperating 
agencies (even though the restoration, enhancement, or establishment 
activity did not require a section 404 permit). 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 conducting any reversion activity the permittee or the 
appropriate Federal

[[Page 11186]]

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 are applicable to that type of land at the 
time. The requirement that the activity result in a net increase in 
aquatic resource functions and services does not apply to reversion 
activities meeting the above conditions. Except for the activities 
described above, 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.
    Reporting: For those activities that do not require pre-
construction notification, the permittee must submit to the district 
engineer a copy of: (1) The binding wetland enhancement, restoration, 
or establishment agreement, or a project description, including project 
plans and location map; (2) the NRCS or USDA Technical Service Provider 
documentation for the voluntary wetland restoration, enhancement, or 
establishment action; or (3) the SMCRA permit issued by OSM or the 
applicable state agency. These documents must be submitted to the 
district engineer at least 30 days prior to commencing activities in 
waters of the United States authorized by this NWP.
    Notification. The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
(see general condition 27), except for the following activities:
    (1) Activities conducted on non-Federal public lands and private 
lands, in accordance with the terms and conditions of a binding wetland 
enhancement, restoration, or establishment agreement between the 
landowner and the U.S. FWS, NRCS, FSA, NMFS, NOS, or their designated 
state cooperating agencies;
    (2) Voluntary wetland restoration, enhancement, and establishment 
actions documented by the NRCS or USDA Technical Service Provider 
pursuant to NRCS Field Office Technical Guide standards; or
    (3) The reclamation of surface coal mine lands, in accordance with 
an SMCRA permit issued by the OSM or the applicable state agency.
    However, the permittee must submit a copy of the appropriate 
documentation. (Sections 10 and 404)


    Note: This NWP can be used to authorize compensatory mitigation 
projects, including mitigation banks and in-lieu fee programs. 
However, this NWP does not authorize the reversion of an area used 
for a compensatory mitigation project to its prior condition, since 
compensatory mitigation is generally intended to be permanent.

    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 United States is authorized by this NWP. (Section 10)
    29. Residential Developments. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction or expansion of a single residence, a multiple unit 
residential development, or a residential subdivision. This NWP 
authorizes the construction of building foundations and building pads 
and attendant features that are necessary for the use of the residence 
or residential development. Attendant features may include but are not 
limited to roads, parking lots, garages, yards, utility lines, storm 
water management facilities, septic fields, and recreation facilities 
such as playgrounds, playing fields, and golf courses (provided the 
golf course is an integral part of the residential development).
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds this 300 linear foot limit is waived in writing 
by the district engineer. This NWP does not authorize discharges into 
non-tidal wetlands adjacent to tidal waters.
    Subdivisions: For residential subdivisions, the aggregate total 
loss of waters of United States authorized by this NWP cannot exceed 1/
2 acre. This includes any loss of waters of the United States 
associated with development of individual subdivision lots.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Sections 10 and 404)
    30. Moist Soil Management for Wildlife. Discharges of dredged or 
fill material into non-tidal waters of the United States and 
maintenance activities that are associated with moist soil management 
for wildlife 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, plowing or discing to impede succession, 
preparing seed beds, or establishing fire breaks. Sufficient riparian 
areas must be maintained adjacent to all open water bodies, including 
streams to preclude water quality degradation due to erosion and 
sedimentation. This NWP does not authorize the construction of new 
dikes, roads, water control structures, or similar features associated 
with the management areas. The activity must not result in a net loss 
of aquatic resource functions and services. This NWP does not authorize 
the conversion of wetlands to uplands, impoundments, or other open 
water bodies. (Section 404).


    Note: The repair, maintenance, or replacement of existing water 
control structures or the repair or maintenance of dikes may be 
authorized by NWP 3. Some such activities may qualify for an 
exemption under Section 404(f) of the Clean Water Act (see 33 CFR 
323.4).

    31. Maintenance of Existing Flood Control Facilities. Discharges of 
dredged or fill material resulting from activities associated with the 
maintenance of existing flood control facilities, including debris 
basins, retention/detention basins, levees, 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 they 
were 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. Discharges of dredged or fill 
materials associated with maintenance activities in flood control 
facilities in any watercourse that have previously been determined to 
be within the maintenance baseline are authorized under this NWP. This 
NWP does not authorize the removal of sediment and associated 
vegetation from natural water courses except when these activities 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 United States, and proper siltation controls must be used.
    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

[[Page 11187]]

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. 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 
approved and constructed design capacities of the flood control 
facility. If no evidence of the constructed capacity exists, the 
approved capacity will be used. The documentation will also include 
best management practices 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 cannot 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 NWP 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 best management 
practices 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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer before any maintenance work is 
conducted (see general condition 27). The pre-construction notification 
may be for activity-specific maintenance or for maintenance of the 
entire flood control facility by submitting a five-year (or less) 
maintenance plan. The pre-construction notification must include a 
description of the maintenance baseline and the dredged material 
disposal site. (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 Clean Water Act 
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 Clean Water Act, provided that:
    (a) The unauthorized activity affected no more than 5 acres of non-
tidal waters or 1 acre of tidal waters;
    (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 United States under Section 404 of the Clean Water Act 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, Section 107 
of the Comprehensive Environmental Response, Compensation and Liability 
Act, Section 312 of the National Marine Sanctuaries Act, Section 1002 
of the Oil Pollution Act of 1990, or the Park System Resource 
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is 
required.
    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. 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 U.S. Coast Guard. This NWP also 
authorizes temporary structures, work, and discharges, including 
cofferdams, necessary for construction activities not otherwise subject 
to the Corps or U.S. Coast Guard permit requirements. Appropriate 
measures must be taken to maintain near normal downstream flows and to 
minimize flooding. Fill must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. The use of 
dredged

[[Page 11188]]

material may be allowed if the district engineer determines that it 
will not cause more than minimal adverse effects on aquatic resources. 
Following completion of construction, temporary fill must be entirely 
removed to upland areas, dredged material must be returned to its 
original location, and the affected areas must be restored to pre-
construction elevations. The affected areas must also be revegetated, 
as appropriate. This permit does not authorize the use of cofferdams to 
dewater wetlands or other aquatic areas to change their use. Structures 
left in place after construction is completed require a section 10 
permit if located in navigable waters of the United States. (See 33 CFR 
part 322.)
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
(see general condition 27). The pre-construction notification must 
include a restoration plan showing how all temporary fills and 
structures will be removed and the area restored to pre-project 
conditions. (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. 
The cumulative total acreage of disturbance per cranberry production 
operation, including but not limited to, filling, flooding, ditching, 
or clearing, must not exceed 10 acres of waters of the United States, 
including wetlands. The activity must 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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer once during the period that this 
NWP is valid, and the NWP will then authorize discharges of dredge or 
fill material at an existing operation for the permit term, provided 
the 10-acre limit is not exceeded. (See general condition 27.) (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 deposited at an upland site 
and proper siltation controls are used. (Section 10)
    36. Boat Ramps. Activities required for the construction of boat 
ramps, provided the activity meets all of the following criteria:
    (a) The discharge into waters of the United States does not exceed 
50 cubic yards of concrete, rock, crushed stone or gravel into forms, 
or in the form of pre-cast concrete planks or slabs, unless the 50 
cubic yard limit is waived in writing by the district engineer;
    (b) The boat ramp does not exceed 20 feet in width, unless this 
criterion is waived in writing by the district engineer;
    (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.
    The use of unsuitable material that is structurally unstable is not 
authorized. If dredging in navigable waters of the United States is 
necessary to provide access to the boat ramp, the dredging may be 
authorized by another NWP, a regional general permit, or an individual 
permit.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge into waters of the United States exceeds 50 cubic 
yards, or (2) the boat ramp exceeds 20 feet in width. (See general 
condition 27.) (Sections 10 and 404)
    37. Emergency Watershed Protection and Rehabilitation. Work done by 
or funded by:
    (a) The Natural Resources Conservation Service for a situation 
requiring immediate action under its emergency Watershed Protection 
Program (7 CFR part 624);
    (b) The U.S. Forest Service under its Burned-Area Emergency 
Rehabilitation Handbook (FSH 509.13);
    (c) The Department of the Interior for wildland fire management 
burned area emergency stabilization and rehabilitation (DOI Manual part 
620, Ch. 3);
    (d) The Office of Surface Mining, or states with approved programs, 
for abandoned mine land reclamation activities under Title IV of the 
Surface Mining Control and Reclamation Act (30 CFR subchapter R), where 
the activity does not involve coal extraction; or
    (e) The Farm Service Agency under its Emergency Conservation 
Program (7 CFR part 701).
    In general, the prospective permittee should wait until the 
district engineer issues an NWP verification before proceeding with the 
watershed protection and rehabilitation activity. However, in cases 
where there is an unacceptable hazard to life or a significant loss of 
property or economic hardship will occur, the emergency watershed 
protection and rehabilitation activity may proceed immediately and the 
district engineer will consider the information in the pre-construction 
notification any comments received as a result of agency coordination 
to decide whether the NWP 37 authorization should be modified, 
suspended, or revoked in accordance with the procedures at 33 CFR 
330.5.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
(see general condition 27). (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. 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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Sections 10 and 404)


    Note: 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 Clean Water Act 
or Section 10 of the Rivers and Harbors Act.


    39. Commercial and Institutional Developments. Discharges of 
dredged or fill material into non-tidal waters of the United States for 
the construction or expansion of 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, storm water management facilities, and recreation 
facilities such as playgrounds and playing fields. Examples of 
commercial developments include retail stores, industrial facilities, 
restaurants,

[[Page 11189]]

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 construction of new golf courses, 
new ski areas, or oil and gas wells is not authorized by this NWP.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds this 300 linear foot limit is waived in writing 
by the district engineer. This NWP does not authorize discharges into 
non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Sections 10 and 404)
    40. Agricultural Activities. Discharges of dredged or fill material 
into non-tidal waters of the United States for agricultural activities, 
including 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 United States; and 
similar activities.
    This NWP also authorizes the construction of farm ponds in non-
tidal waters of the United States, excluding perennial streams, 
provided the farm pond is used solely for agricultural purposes. This 
NWP does not authorize the construction of aquaculture ponds.
    This NWP also authorizes discharges of dredged or fill material 
into non-tidal waters of the United States to relocate existing 
serviceable drainage ditches constructed in non-tidal streams.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters. 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 and ephemeral 
streams, this 300 linear foot limit is waived in writing by the 
district engineer.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Section 404)


    Note: Some discharges for agricultural activities may qualify 
for an exemption under Section 404(f) of the Clean Water Act (see 33 
CFR 323.4). This NWP authorizes the construction of farm ponds that 
do not qualify for the Clean Water Act Section 404(f)(1)(C) 
exemption because of the recapture provision at Section 404(f)(2).


    41. Reshaping Existing Drainage Ditches. Discharges of dredged or 
fill material into non-tidal waters of the United States, excluding 
non-tidal wetlands adjacent to tidal waters, to modify the cross-
sectional configuration of currently serviceable drainage ditches 
constructed in waters of the United States, for the purpose of 
improving water quality by regrading the drainage ditch with gentler 
slopes, which can reduce erosion, increase growth of vegetation, and 
increase uptake of nutrients and other substances by vegetation. The 
reshaping of the ditch cannot increase drainage capacity beyond the 
original as-built capacity nor can it expand the area drained by the 
ditch as originally constructed (i.e., the capacity of the ditch must 
be the same as originally constructed and it cannot drain additional 
wetlands or other waters of the United States). Compensatory mitigation 
is not required because the work is designed to improve water quality.
    This NWP does not authorize the relocation of drainage ditches 
constructed in waters of the United States; the location of the 
centerline of the reshaped drainage ditch must be approximately the 
same as the location of the centerline of the original drainage ditch. 
This NWP does not authorize stream channelization or stream relocation 
projects.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity, 
if more than 500 linear feet of drainage ditch will be reshaped. (See 
general condition 27.) (Section 404)
    42. Recreational Facilities. Discharges of dredged or fill material 
into non-tidal waters of the United States for the construction or 
expansion of recreational facilities. Examples of recreational 
facilities that may be authorized by this NWP include playing fields 
(e.g., football fields, baseball fields), basketball courts, tennis 
courts, hiking trails, bike paths, golf courses, ski areas, horse 
paths, nature centers, and campgrounds (excluding recreational vehicle 
parks). 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, but it 
does not authorize the construction of hotels, restaurants, racetracks, 
stadiums, arenas, or similar facilities.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds this 300 linear foot limit is waived in writing 
by the district engineer. This NWP does not authorize discharges into 
non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Section 404)
    43. Stormwater Management Facilities. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction and maintenance of stormwater management facilities, 
including 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.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds this 300 linear foot limit is waived in writing 
by the district engineer. This NWP does not authorize discharges into 
non-tidal wetlands adjacent to tidal waters. This NWP does not 
authorize discharges of dredged or fill material for the construction 
of new stormwater management facilities in perennial streams.
    Notification: For the construction of new stormwater management 
facilities, or the expansion of existing stormwater management 
facilities, the permittee must submit a pre-construction notification 
to the district engineer prior to commencing the activity. (See general 
condition 27.) Maintenance activities do not require pre-construction 
notification if they are limited to restoring the original design 
capacities of the stormwater management facility. (Section 404)
    44. Mining Activities. Discharges of dredged or fill material into 
non-tidal waters of the United States for mining activities, except for 
coal mining activities. The discharge must not cause the loss of 
greater than \1/2\-acre of non-tidal waters of the United States. This 
NWP does not authorize discharges into

[[Page 11190]]

non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) If reclamation is required by other 
statutes, then a copy of the reclamation plan must be submitted with 
the pre-construction notification. (Sections 10 and 404)
    45. Repair of Uplands Damaged by Discrete Events. This NWP 
authorizes discharges of dredged or fill material, including dredging 
or excavation, into all waters of the United States for activities 
associated with the restoration of upland areas damaged by storms, 
floods, or other discrete events. This NWP authorizes bank 
stabilization to protect the restored uplands. The restoration of the 
damaged areas, including any bank stabilization, must not exceed the 
contours, or ordinary high water mark, that existed before the damage 
occurred. 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 NWP. The work must commence, or be under 
contract to commence, within two years of the date of damage, unless 
this condition is waived in writing by the district engineer. This NWP 
cannot be used to reclaim lands lost to normal erosion processes over 
an extended period.
    Minor dredging is limited to the amount necessary to restore the 
damaged upland area and should not significantly alter the pre-existing 
bottom contours of the waterbody.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer (see general condition 27) within 
12-months of the date of the damage. The pre-construction notification 
should include documentation, such as a recent topographic survey or 
photographs, to justify the extent of the proposed restoration. 
(Sections 10 and 404)


    Note: Uplands lost as a result of a storm, flood, or other 
discrete event can be replaced without a section 404 permit, if the 
uplands are restored to the ordinary high water mark (in non-tidal 
waters) or high tide line (in tidal waters). (See also 33 CFR 
328.5.)


    46. Discharges in Ditches. Discharges of dredged or fill material 
into non-tidal ditches that are: (1) Constructed in uplands, (2) 
receive water from an area determined to be a water of the United 
States prior to the construction of the ditch, (3) divert water to an 
area determined to be a water of the United States prior to the 
construction of the ditch, and (4) are determined to be waters of the 
United States. The discharge must not cause the loss of greater than 
one acre of waters of the United States.
    This NWP does not authorize discharges of dredged or fill material 
into ditches constructed in streams or other waters of the United 
States, or in streams that have been relocated in uplands. This NWP 
does not authorize discharges of dredged or fill material that increase 
the capacity of the ditch and drain those areas determined to be waters 
of the United States prior to construction of the ditch.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Section 404)
    47. Pipeline Safety Program Designated Time Sensitive Inspections 
and Repairs. Activities required for the inspection, repair, 
rehabilitation, or replacement of any currently serviceable structure 
or fill for pipelines that have been identified by the Pipeline and 
Hazardous Materials Safety Administration's Pipeline Safety Program 
(PHP) within the U.S. Department of Transportation as time-sensitive 
(see 49 CFR parts 192 and 195) and additional maintenance activities 
done in conjunction with the time-sensitive inspection and repair 
activities. All activities must meet the following criteria:
    (a) Appropriate measures must be taken to maintain normal 
downstream flows and minimize flooding to the maximum extent 
practicable when temporary structures, work and discharges, including 
cofferdams, are necessary for construction activities or access fills 
or dewatering of construction sites;
    (b) Material resulting from trench excavation may be temporarily 
sidecast into waters of the United States for no more than three 
months, 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 for no more than a total of 
180 days, where appropriate. The trench cannot be constructed or 
backfilled in such a manner as to drain waters of the United States 
(e.g., backfilling with extensive gravel layers, creating a french 
drain effect);
    (c) Temporary fill must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. Temporary fills 
must be removed in their entirety and the affected areas returned to 
pre-construction elevations. The affected areas must be revegetated, as 
appropriate;
    (d) In wetlands, the top 6 to 12 inches of the trench should 
normally be backfilled with topsoil from the trench so that there is no 
change in preconstruction contours;
    (e) To the maximum extent practicable, the restoration of open 
waters must be to the pre-construction course, condition, capacity, and 
location of the waterbody;
    (f) Any exposed slopes and stream banks must be stabilized 
immediately upon completion of the project;
    (g) Additional maintenance activities done in conjunction with the 
time-sensitive inspection or repair must not result in additional 
losses of waters of the United States; and,
    (h) The permittee is a participant in the Pipeline Repair and 
Environmental Guidance System (PREGS).
    Reporting: The permittee must submit a post construction report to 
the PHP within seven days after completing the work. The report must be 
submitted electronically to PHP via PREGS. The report must contain the 
following information: Project sites located in waters of the United 
States, temporary access routes, stream dewatering sites, temporary 
fills and temporary structures identified on a map of the pipeline 
corridor; photographs of the pre- and post-construction work areas 
located in waters of the United States; and a list of best management 
practices employed for each pipeline segment shown on the map. (Section 
10 and 404)


    Note: Division engineers may modify this NWP by adding regional 
conditions to protect the aquatic environment, as long as those 
regional conditions do not require pre-construction notification or 
other actions that would delay time sensitive inspections and 
repairs. Examples of appropriate regional conditions include best 
management practices.


    48. Existing Commercial Shellfish Aquaculture Activities. This NWP 
authorizes the installation of buoys, floats, racks, trays, nets, 
lines, tubes, containers, and other structures necessary for the 
continued operation of the existing commercial aquaculture activity. 
This NWP also authorizes discharges of dredged or fill material 
necessary for shellfish seeding, rearing, cultivating, transplanting, 
and harvesting activities. Rafts and other floating structures must be 
securely anchored and clearly marked.
    This NWP does not authorize new operations or the expansion of the 
project area for an existing commercial shellfish aquaculture activity. 
This NWP does not authorize the cultivation of new species (i.e., 
species not previously cultivated in the waterbody). This NWP

[[Page 11191]]

does not authorize attendant features such as docks, piers, boat ramps, 
stockpiles, staging areas, or the deposition of shell material back 
into waters of the United States as waste.
    Reporting: For those activities that do not require pre-
construction notification, the permittee must submit a report to the 
district engineer that includes the following information: (1) The size 
of the project area for the commercial shellfish aquaculture activity 
(in acres); (2) the location of the activity; (3) a brief description 
of the culture method and harvesting method(s); (4) the name(s) of the 
cultivated species; and (5) whether canopy predator nets are being 
used. This is a subset of the information that would be required for 
pre-construction notification. This report may be provided by letter or 
using an optional reporting form provided by the Corps. Only one report 
needs to be submitted during the period this NWP is valid, as long as 
there are no changes to the operation that require pre-construction 
notification. The report must be submitted to the district engineer 
within 90 days of the effective date of this NWP.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer if: (1) The project area is 
greater than 100 acres; or (2) there is any reconfiguration of the 
aquaculture activity, such as relocating existing operations into 
portions of the project area not previously used for aquaculture 
activities; or (3) there is a change in species being cultivated; or 
(4) there is a change in culture methods (e.g., from bottom culture to 
off-bottom culture); or (5) dredge harvesting, tilling, or harrowing is 
conducted in areas inhabited by submerged aquatic vegetation. (See 
general condition 27.) (Sections 10 and 404)


    Note: The permittee should notify the applicable U.S. Coast 
Guard office regarding the project.


    49. Coal Remining Activities. Discharges of dredged or fill 
material into non-tidal waters of the United States associated with the 
remining and reclamation of lands that were previously mined for coal, 
provided the activities are already authorized, or are currently being 
processed as part of an integrated permit processing procedure, by the 
Department of Interior (DOI) Office of Surface Mining (OSM), or by 
states with approved programs under Title IV or Title V of the Surface 
Mining Control and Reclamation Act of 1977. Areas previously mined 
include reclaimed mine sites, abandoned mine land areas, or lands under 
bond forfeiture contracts. The permittee must clearly demonstrate to 
the district engineer that the reclamation plan will result in a net 
increase in aquatic resource functions. As part of the project, the 
permittee may conduct coal mining activities in an adjacent area, 
provided the newly mined area is less than 40 percent of the area being 
remined plus any unmined area necessary for the reclamation of the 
remined area.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 27.) (Sections 
10 and 404)
    50. Underground Coal Mining Activities. Discharges of dredged or 
fill material into non-tidal waters of the United States associated 
with underground coal mining and reclamation operations provided the 
activities are authorized, or are currently being processed as part of 
an integrated permit processing procedure, by the Department of 
Interior (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.
    This NWP does not authorize discharges into non-tidal wetlands 
adjacent to tidal waters. This NWP does not authorize coal preparation 
and processing activities outside of the mine site.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 27.) If 
reclamation is required by other statutes, then a copy of the 
reclamation plan must be submitted with the pre-construction 
notification. (Sections 10 and 404)


    Note: Coal preparation and processing activities outside of the 
mine site may be authorized by NWP 21.


C. Nationwide Permit General Conditions

    Note: To qualify for NWP authorization, the prospective 
permittee must comply with the following general conditions, as 
appropriate, in addition to any regional or case-specific conditions 
imposed by the division engineer or district engineer. Prospective 
permittees should contact the appropriate Corps district office to 
determine if regional conditions have been imposed on an NWP. 
Prospective permittees should also contact the appropriate Corps 
district office to determine the status of Clean Water Act Section 
401 water quality certification and/or Coastal Zone Management Act 
consistency for an NWP.


    1. Navigation. (a) No activity may cause more than a minimal 
adverse effect on navigation.
    (b) Any safety lights and signals prescribed by the U.S. Coast 
Guard, through regulations or otherwise, must be installed and 
maintained at the permittee's expense on authorized facilities in 
navigable waters of the United States.
    (c) The permittee understands and agrees that, if future operations 
by the United States require the removal, relocation, or other 
alteration, of the structure or work herein authorized, or if, in the 
opinion of the Secretary of the Army or his authorized representative, 
said structure or work shall cause unreasonable obstruction to the free 
navigation of the navigable waters, the permittee will be required, 
upon due notice from the Corps of Engineers, to remove, relocate, or 
alter the structural work or obstructions caused thereby, without 
expense to the United States. No claim shall be made against the United 
States on account of any such removal or alteration.
    2. 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.
    3. Spawning Areas. Activities in spawning areas during spawning 
seasons must be avoided to the maximum extent practicable. Activities 
that result in the physical destruction (e.g., through excavation, 
fill, or downstream smothering by substantial turbidity) of an 
important spawning area are not authorized.
    4. Migratory Bird Breeding Areas. Activities in waters of the 
United States that serve as breeding areas for migratory birds must be 
avoided to the maximum extent practicable.
    5. Shellfish Beds. No activity may occur in areas of concentrated 
shellfish populations, unless the activity is directly related to a 
shellfish harvesting activity authorized by NWPs 4 and 48.
    6. Suitable Material. No activity may use unsuitable material 
(e.g., trash, debris, car bodies, asphalt, etc.). Material used for 
construction or discharged must be free from toxic pollutants in toxic 
amounts (see Section 307 of the Clean Water Act).
    7. Water Supply Intakes. No activity may occur in the proximity of 
a public water supply intake, except where the activity is for the 
repair or improvement

[[Page 11192]]

of public water supply intake structures or adjacent bank 
stabilization.
    8. Adverse Effects From Impoundments. If the activity creates an 
impoundment of water, adverse effects to the aquatic system due to 
accelerating the passage of water, and/or restricting its flow must be 
minimized to the maximum extent practicable.
    9. Management of Water Flows. To the maximum extent practicable, 
the pre-construction course, condition, capacity, and location of open 
waters must be maintained for each activity, including stream 
channelization and storm water management activities, except as 
provided below. The activity must be constructed to withstand expected 
high flows. The activity must not restrict or impede the passage of 
normal or high flows, unless the primary purpose of the activity is to 
impound water or manage high flows. The activity may alter the pre-
construction course, condition, capacity, and location of open waters 
if it benefits the aquatic environment (e.g., stream restoration or 
relocation activities).
    10. Fills Within 100-Year Floodplains. The activity must comply 
with applicable FEMA-approved state or local floodplain management 
requirements.
    11. Equipment. Heavy equipment working in wetlands or mudflats must 
be placed on mats, or other measures must be taken to minimize soil 
disturbance.
    12. 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.
    13. Removal of Temporary Fills. Temporary fills must be removed in 
their entirety and the affected areas returned to pre-construction 
elevations. The affected areas must be revegetated, as appropriate.
    14. Proper Maintenance. Any authorized structure or fill shall be 
properly maintained, including maintenance to ensure public safety.
    15. 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).
    16. 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.
    17. 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. 
No activity is authorized under any NWP which ``may affect'' a listed 
species or critical habitat, unless Section 7 consultation addressing 
the effects of the proposed activity has been completed.
    (b) Federal agencies should follow their own procedures for 
complying with the requirements of the ESA. Federal permittees must 
provide the district engineer with the appropriate documentation to 
demonstrate compliance with those requirements.
    (c) 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 if the project is located in 
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 might affect Federally-listed endangered or threatened 
species or designated critical habitat, the pre-construction 
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. 
The district engineer will determine whether the proposed activity 
``may affect'' or will have ``no effect'' to listed species and 
designated critical habitat and will notify the non-Federal applicant 
of the Corps' determination within 45 days of receipt of a complete 
pre-construction notification. In cases where the non-Federal applicant 
has identified listed species or critical habitat that might be 
affected or is in the vicinity of the project, and has so notified the 
Corps, the applicant shall not begin work until the Corps has provided 
notification the proposed activities will have ``no effect'' on listed 
species or critical habitat, or until Section 7 consultation has been 
completed.
    (d) 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.
    (e) 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 U.S. FWS 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 U.S. FWS and 
NMFS or their world wide Web pages at http://www.fws.gov/ and http://www.noaa.gov/fisheries.html respectively.
    18. Historic Properties. (a) In cases where the district engineer 
determines that the activity may affect properties listed, or eligible 
for listing, in the National Register of Historic Places, the activity 
is not authorized, until the requirements of Section 106 of the 
National Historic Preservation Act (NHPA) have been satisfied.
    (b) Federal permittees should follow their own procedures for 
complying with the requirements of Section 106 of the National Historic 
Preservation Act. Federal permittees must provide the district engineer 
with the appropriate documentation to demonstrate compliance with those 
requirements.
    (c) Non-federal permittees must submit a pre-construction 
notification to the district engineer if the authorized activity may 
have the potential to cause effects to any historic properties listed, 
determined to be eligible for listing on, or potentially eligible for 
listing on the National Register of Historic Places, including 
previously unidentified properties. For such activities, the pre-
construction notification must state which historic properties may be 
affected by the proposed work or include a vicinity map indicating the 
location of the historic properties or the potential for the presence 
of historic properties. Assistance regarding information on the 
location of or potential for the presence of historic resources can be 
sought from the State

[[Page 11193]]

Historic Preservation Officer or Tribal Historic Preservation Officer, 
as appropriate, and the National Register of Historic Places (see 33 
CFR 330.4(g)). The district engineer shall make a reasonable and good 
faith effort to carry out appropriate identification efforts, which may 
include background research, consultation, oral history interviews, 
sample field investigation, and field survey. Based on the information 
submitted and these efforts, the district engineer shall determine 
whether the proposed activity has the potential to cause an effect on 
the historic properties. Where the non-Federal applicant has identified 
historic properties which the activity may have the potential to cause 
effects and so notified the Corps, the non-Federal applicant shall not 
begin the activity until notified by the district engineer either that 
the activity has no potential to cause effects or that consultation 
under Section 106 of the NHPA has been completed.
    (d) The district engineer will notify the prospective permittee 
within 45 days of receipt of a complete pre-construction notification 
whether NHPA Section 106 consultation is required. Section 106 
consultation is not required when the Corps determines that the 
activity does not have the potential to cause effects on historic 
properties (see 36 CFR 800.3(a)). If NHPA section 106 consultation is 
required and will occur, the district engineer will notify the non-
Federal applicant that he or she cannot begin work until Section 106 
consultation is completed.
    (e) Prospective permittees should be aware that section 110k of the 
NHPA (16 U.S.C. 470h-2(k)) prevents the Corps from granting a permit or 
other assistance to an applicant who, with intent to avoid the 
requirements of Section 106 of the NHPA, has intentionally 
significantly adversely affected a historic property to which the 
permit would relate, or having legal power to prevent it, allowed such 
significant adverse effect to occur, unless the Corps, after 
consultation with the Advisory Council on Historic Preservation (ACHP), 
determines that circumstances justify granting such assistance despite 
the adverse effect created or permitted by the applicant. If 
circumstances justify granting the assistance, the Corps is required to 
notify the ACHP and provide documentation specifying the circumstances, 
explaining the degree of damage to the integrity of any historic 
properties affected, and proposed mitigation. This documentation must 
include any views obtained from the applicant, SHPO/THPO, appropriate 
Indian tribes if the undertaking occurs on or affects historic 
properties on tribal lands or affects properties of interest to those 
tribes, and other parties known to have a legitimate interest in the 
impacts to the permitted activity on historic properties.
    19. Designated Critical Resource Waters. Critical resource waters 
include, NOAA-designated marine sanctuaries, National Estuarine 
Research Reserves, 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) Discharges of dredged or fill material into waters of the 
United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 
35, 39, 40, 42, 43, 44, 49, and 50 for any activity within, or directly 
affecting, critical resource waters, including wetlands adjacent to 
such waters.
    (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 27, 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.
    20. Mitigation. The district engineer will consider the following 
factors when determining appropriate and practicable mitigation 
necessary to ensure that adverse effects on the aquatic environment are 
minimal:
    (a) The activity must be designed and constructed to avoid and 
minimize adverse effects, both temporary and permanent, to waters of 
the United States 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 losses that exceed \1/10\ acre and require 
pre-construction notification, 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. For wetland losses of \1/10\ acre or less that 
require pre-construction notification, the district engineer may 
determine on a case-by-case basis that compensatory mitigation is 
required to ensure that the activity results in minimal adverse effects 
on the aquatic environment. Since the likelihood of success is greater 
and the impacts to potentially valuable uplands are reduced, wetland 
restoration should be the first compensatory mitigation option 
considered.
    (d) For losses of streams or other open waters that require pre-
construction notification, the district engineer may require 
compensatory mitigation, such as stream restoration, to ensure that the 
activity results in minimal adverse effects on the aquatic environment.
    (e) Compensatory mitigation will not be used to increase the 
acreage losses allowed by the acreage limits of the NWPs. For example, 
if an NWP has an acreage limit of \1/2\ acre, it cannot be used to 
authorize any project resulting in the loss of greater than \1/2\ acre 
of waters of the United States, even if compensatory mitigation is 
provided that replaces or restores some of the lost waters. However, 
compensatory mitigation can and should be used, as necessary, to ensure 
that a project already meeting the established acreage limits also 
satisfies the minimal impact requirement associated with the NWPs.
    (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., conservation 
easements) of riparian areas next to open waters. In some cases, 
riparian areas may be the only compensatory mitigation required. 
Riparian areas should consist of native species. The width of the 
required riparian area will address documented water quality or aquatic 
habitat loss concerns. Normally, the riparian area will be 25 to 50 
feet wide on each side of the stream, but the district engineer may 
require slightly wider riparian areas to address documented water 
quality or habitat loss concerns. Where both wetlands and open waters 
exist on the project site, the district engineer will determine the 
appropriate compensatory mitigation (e.g., riparian areas and/or 
wetlands compensation) based on what is best for the aquatic 
environment on a watershed basis. In cases where riparian areas are 
determined to be the most appropriate form of compensatory mitigation, 
the district engineer may waive or reduce the requirement to provide 
wetland

[[Page 11194]]

compensatory mitigation for wetland losses.
    (g) Permittees may propose the use of mitigation banks, in-lieu fee 
arrangements or separate activity-specific compensatory mitigation. In 
all cases, the mitigation provisions will specify the party responsible 
for accomplishing and/or complying with the mitigation plan.
    (h) Where certain functions and services of waters of the United 
States are permanently adversely affected, such as the conversion of a 
forested or scrub-shrub wetland to a herbaceous wetland in a 
permanently maintained utility line right-of-way, mitigation may be 
required to reduce the adverse effects of the project to the minimal 
level.
    21. Water Quality. Where States and authorized Tribes, or EPA where 
applicable, have not previously certified compliance of an NWP with CWA 
Section 401, individual 401 Water Quality Certification must be 
obtained or waived (see 33 CFR 330.4(c)). The district engineer or 
State or Tribe may require additional water quality management measures 
to ensure that the authorized activity does not result in more than 
minimal degradation of water quality.
    22. Coastal Zone Management. In coastal states where an NWP has not 
previously received a state coastal zone management consistency 
concurrence, an individual state coastal zone management consistency 
concurrence must be obtained, or a presumption of concurrence must 
occur (see 33 CFR 330.4(d)). The district engineer or a State may 
require additional measures to ensure that the authorized activity is 
consistent with state coastal zone management requirements.
    23. 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)) and with any case specific conditions 
added by the Corps or by the state, Indian Tribe, or U.S. EPA in its 
section 401 Water Quality Certification, or by the state in its Coastal 
Zone Management Act consistency determination.
    24. Use of Multiple Nationwide Permits. The use of more than one 
NWP for a single and complete project is prohibited, except when the 
acreage loss of waters of the United States authorized by the NWPs does 
not exceed the acreage limit of the NWP with the highest specified 
acreage limit. For example, if a road crossing over tidal waters is 
constructed under NWP 14, with associated bank stabilization authorized 
by NWP 13, the maximum acreage loss of waters of the United States for 
the total project cannot exceed \1/3\-acre.
    25. Transfer of Nationwide Permit Verifications. If the permittee 
sells the property associated with a nationwide permit verification, 
the permittee may transfer the nationwide permit verification to the 
new owner by submitting a letter to the appropriate Corps district 
office to validate the transfer. A copy of the nationwide permit 
verification must be attached to the letter, and the letter must 
contain the following statement and signature:
    ``When the structures or work authorized by this nationwide permit 
are still in existence at the time the property is transferred, the 
terms and conditions of this nationwide permit, including any special 
conditions, will continue to be binding on the new owner(s) of the 
property. To validate the transfer of this nationwide permit and the 
associated liabilities associated with compliance with its terms and 
conditions, have the transferee sign and date below.''

-----------------------------------------------------------------------

(Transferee)

-----------------------------------------------------------------------

(Date)

    26. Compliance Certification. Each permittee who received an NWP 
verification from the Corps must submit a signed certification 
regarding the completed work and any required mitigation. The 
certification form must be forwarded by the Corps with the NWP 
verification letter and will include:
    (a) A statement that the authorized work was done in accordance 
with the NWP 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.
    27. Pre-Construction Notification. (a) Timing. Where required by 
the terms of the NWP, the prospective permittee must notify the 
district engineer by submitting a pre-construction notification (PCN) 
as early as possible. The district engineer must determine if the PCN 
is complete within 30 calendar days of the date of receipt and, as a 
general rule, will 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 PCN 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 45 calendar days have passed from the district engineer's 
receipt of the complete PCN and the prospective permittee has not 
received written notice from the district or division engineer. 
However, if the permittee was required to notify the Corps pursuant to 
general condition 17 that listed species or critical habitat might be 
affected or in the vicinity of the project, or to notify the Corps 
pursuant to general condition 18 that the activity may have the 
potential to cause effects to historic properties, the permittee cannot 
begin the activity until receiving written notification from the Corps 
that is ``no effect'' on listed species or ``no potential to cause 
effects'' on historic properties, or that any consultation required 
under Section 7 of the Endangered Species Act (see 33 CFR 330.4(f)) 
and/or Section 106 of the National Historic Preservation (see 33 CFR 
330.4(g)) is completed. Also, work cannot begin under NWPs 21, 49, or 
50 until the permittee has received written approval from the Corps. If 
the proposed activity requires a written waiver to exceed specified 
limits of an NWP, the permittee cannot begin the activity until the 
district engineer issues the waiver. If the district or division 
engineer notifies the permittee in writing that an individual permit is 
required within 45 calendar days of receipt of a complete PCN, the 
permittee cannot begin the activity until an individual permit has been 
obtained. 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 Pre-Construction Notification: The PCN 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) A 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. The description should be 
sufficiently detailed to allow the district engineer to

[[Page 11195]]

determine that the adverse effects of the project will be minimal and 
to determine the need for compensatory mitigation. 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) The PCN must include a delineation of special aquatic sites and 
other waters of the United States on the project site. Wetland 
delineations must be prepared in accordance with the current method 
required by the Corps. The permittee may ask the Corps to delineate the 
special aquatic sites and other waters of the United States, but there 
may be a delay if the Corps does the delineation, especially if the 
project site is large or contains many waters of the United States. 
Furthermore, the 45 day period will not start until the delineation has 
been submitted to or completed by the Corps, where appropriate;
    (5) If the proposed activity will result in the loss of greater 
than \1/10\ acre of wetlands and a PCN is required, the prospective 
permittee must submit a statement describing how the mitigation 
requirement will be satisfied. As an alternative, the prospective 
permittee may submit a conceptual or detailed mitigation plan.
    (6) If any listed species or designated critical habitat might be 
affected or is in the vicinity of the project, or if the project is 
located in designated critical habitat, for non-Federal applicants the 
PCN must include the name(s) of those endangered or threatened species 
that might be affected by the proposed work or utilize the designated 
critical habitat that may be affected by the proposed work. Federal 
applicants must provide documentation demonstrating compliance with the 
Endangered Species Act; and
    (7) For an activity that may affect a historic property listed on, 
determined to be eligible for listing on, or potentially eligible for 
listing on, the National Register of Historic Places, for non-Federal 
applicants 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. Federal applicants must provide documentation 
demonstrating compliance with Section 106 of the National Historic 
Preservation Act.
    (c) Form of Pre-Construction Notification: The standard individual 
permit application form (Form ENG 4345) may be used, but the completed 
application form must clearly indicate that it is a PCN and must 
include all of the information required in paragraphs (b)(1) through 
(7) of this general condition. A letter containing the required 
information may also be used.
    (d) Agency Coordination: (1) 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.
    (2) For all NWP 48 activities requiring pre-construction 
notification and for other NWP activities requiring pre-construction 
notification to the district engineer that result in the loss of 
greater than \1/2\-acre of waters of the United States, the district 
engineer will immediately provide (e.g., via facsimile transmission, 
overnight mail, or other expeditious manner) a copy of the PCN to the 
appropriate Federal or state offices (U.S. FWS, state natural resource 
or water quality agency, EPA, State Historic Preservation Officer 
(SHPO) or Tribal Historic Preservation Office (THPO), 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 pre-construction 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 pre-construction 
notification that the resource agencies' concerns were considered. For 
NWP 37, the emergency watershed protection and rehabilitation activity 
may proceed immediately in cases where there is an unacceptable hazard 
to life or a significant loss of property or economic hardship will 
occur. The district engineer will consider any comments received to 
decide whether the NWP 37 authorization should be modified, suspended, 
or revoked in accordance with the procedures at 33 CFR 330.5.
    (3) In cases of where the prospective permittee is not a Federal 
agency, the district engineer will provide a response to NMFS within 30 
calendar days of receipt of any Essential Fish Habitat conservation 
recommendations, as required by Section 305(b)(4)(B) of the Magnuson-
Stevens Fishery Conservation and Management Act.
    (4) Applicants are encouraged to provide the Corps multiple copies 
of pre-construction notifications to expedite agency coordination.
    (5) For NWP 48 activities that require reporting, the district 
engineer will provide a copy of each report within 10 calendar days of 
receipt to the appropriate regional office of the NMFS.
    (e) 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. If the proposed activity requires a 
PCN and will result in a loss of greater than \1/10\ acre of wetlands, 
the prospective permittee should submit a mitigation proposal with the 
PCN. Applicants may also propose compensatory mitigation for projects 
with smaller impacts. 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. The compensatory 
mitigation proposal may be either conceptual or detailed. 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 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 calendar days of receiving a complete 
PCN and determine whether the proposed mitigation would ensure no more 
than minimal adverse effects on the aquatic environment. If the net 
adverse effects of the project on the aquatic environment (after 
consideration of the compensatory mitigation proposal) are determined 
by the district engineer to be minimal, the district engineer will 
provide a timely written response to the applicant. The response will 
state that the project can proceed under the terms and conditions of 
the NWP.

[[Page 11196]]

    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 plan 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 plan that would reduce the adverse effects on the aquatic 
environment to the minimal level. When mitigation is required, no work 
in waters of the United States may occur until the district engineer 
has approved a specific mitigation plan.
    28. Single and Complete Project. The activity must be a single and 
complete project. The same NWP cannot be used more than once for the 
same single and complete project.

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): 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.
    Compensatory mitigation: The restoration, establishment (creation), 
enhancement, or preservation of aquatic resources for the purpose of 
compensating for unavoidable adverse impacts which remain after all 
appropriate and practicable avoidance and minimization has been 
achieved.
    Currently serviceable: Useable as is or with some maintenance, but 
not so degraded as to essentially require reconstruction.
    Discharge: The term ``discharge'' means any discharge of dredged or 
fill material and any activity that causes or results in such a 
discharge.
    Enhancement: The manipulation of the physical, chemical, or 
biological characteristics of an aquatic resource to heighten, 
intensify, or improve a specific aquatic resource function(s). 
Enhancement results in the gain of selected aquatic resource 
function(s), but may also lead to a decline in other aquatic resource 
function(s). Enhancement does not result in a gain in aquatic resource 
area.
    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.
    Establishment (creation): The manipulation of the physical, 
chemical, or biological characteristics present to develop an aquatic 
resource that did not previously exist at an upland site. Establishment 
results in a gain in aquatic resource area.
    Historic Property: Any prehistoric or historic district, site 
(including archaeological site), building, structure, or other object 
included in, or eligible for inclusion in, the National Register of 
Historic Places maintained by the Secretary of the Interior. This term 
includes artifacts, records, and remains that are related to and 
located within such properties. The term includes properties of 
traditional religious and cultural importance to an Indian tribe or 
Native Hawaiian organization and that meet the National Register 
criteria (36 CFR part 60).
    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 United States: Waters of the United States 
that are permanently adversely affected by filling, flooding, 
excavation, or drainage because of the regulated activity. Permanent 
adverse effects include permanent discharges of dredged or fill 
material that change an aquatic area to dry land, increase the bottom 
elevation of a waterbody, or change the use of a waterbody. The acreage 
of loss of waters of the United States is a threshold measurement of 
the impact to jurisdictional 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 services. The loss of stream bed 
includes the linear feet of stream bed that is filled or excavated. 
Waters of the United States temporarily filled, flooded, excavated, or 
drained, but restored to pre-construction contours and elevations after 
construction, are not included in the measurement of loss of waters of 
the United States. Impacts resulting from activities eligible for 
exemptions under Section 404(f) of the Clean Water Act are not 
considered when calculating the loss of waters of the United States.
    Non-tidal wetland: A non-tidal wetland is a wetland 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: For purposes of the NWPs, an open water is any area 
that in a year with normal patterns of precipitation has water flowing 
or standing above ground to the extent that an ordinary high water mark 
can be determined. 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. Examples of ``open waters'' 
include rivers, streams, lakes, and ponds.
    Ordinary High Water Mark: An ordinary high water mark is a line on 
the shore established by the fluctuations of water and indicated by 
physical characteristics, or by other appropriate means that consider 
the characteristics of the surrounding areas (see 33 CFR 328.3(e)).

[[Page 11197]]

    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.
    Practicable: Available and capable of being done after taking into 
consideration cost, existing technology, and logistics in light of 
overall project purposes.
    Pre-construction notification: A request submitted by the project 
proponent to the Corps for confirmation that a particular activity is 
authorized by nationwide permit. The request may be a permit 
application, letter, or similar document that includes information 
about the proposed work and its anticipated environmental effects. Pre-
construction notification may be required by the terms and conditions 
of a nationwide permit, or by regional conditions. A pre-construction 
notification may be voluntarily submitted in cases where pre-
construction notification is not required and the project proponent 
wants confirmation that the activity is authorized by nationwide 
permit.
    Preservation: The removal of a threat to, or preventing the decline 
of, aquatic resources by an action in or near those aquatic resources. 
This term includes activities commonly associated with the protection 
and maintenance of aquatic resources through the implementation of 
appropriate legal and physical mechanisms. Preservation does not result 
in a gain of aquatic resource area or functions.
    Re-establishment: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and 
results in a gain in aquatic resource area.
    Rehabilitation: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of repairing 
natural/historic functions to a degraded aquatic resource. 
Rehabilitation results in a gain in aquatic resource function, but does 
not result in a gain in aquatic resource area.
    Restoration: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former or degraded aquatic resource. 
For the purpose of tracking net gains in aquatic resource area, 
restoration is divided into two categories: Re-establishment and 
rehabilitation.
    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.
    Riparian areas: Riparian areas are lands adjacent to streams, 
lakes, and estuarine-marine shorelines. Riparian areas are transitional 
between terrestrial and aquatic ecosystems, through which surface and 
subsurface hydrology connects waterbodies with their adjacent uplands. 
Riparian areas provide a variety of ecological functions and services 
and help improve or maintain local water quality. (See general 
condition 20.)
    Shellfish seeding: The placement of shellfish seed and/or suitable 
substrate to increase shellfish production. Shellfish seed consists of 
immature individual shellfish or individual shellfish attached to 
shells or shell fragments (i.e., spat on shell). Suitable substrate may 
consist of shellfish shells, shell fragments, or other appropriate 
materials placed into waters for shellfish habitat.
    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. A single and complete project must 
have independent utility (see definition). For linear projects, a 
``single and complete project'' is all crossings of a single water of 
the United States (i.e., a single waterbody) at a specific location. 
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, and crossings of such 
features cannot be considered separately.
    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 best management practices, 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's course, 
condition, capacity, or location that causes more than minimal 
interruption of normal stream processes. A channelized stream remains a 
water of the United States.
    Structure: An object that is arranged in a definite pattern of 
organization. Examples of structures include, without limitation, any 
pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, 
bulkhead, revetment, riprap, jetty, artificial island, artificial reef, 
permanent mooring structure, power transmission line, permanently 
moored floating vessel, piling, aid to navigation, or any other manmade 
obstacle or obstruction.
    Tidal wetland: A tidal wetland is a wetland (i.e., water of the 
United States) that is inundated by tidal waters. The definitions of a 
wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 
328.3(f), respectively. Tidal waters rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters end where the rise and fall of the water surface 
can no longer be practically measured in a predictable rhythm due to 
masking by other waters, wind, or other effects. Tidal wetlands are 
located channelward of the high tide line, which is defined at 33 CFR 
328.3(d).
    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: For purposes of the NWPs, a waterbody is a 
jurisdictional

[[Page 11198]]

water of the United States that, during a year with normal patterns of 
precipitation, has water flowing or standing above ground to the extent 
that an ordinary high water mark (OHWM) or other indicators of 
jurisdiction can be determined, as well as any wetland area (see 33 CFR 
328.3(b)). If a jurisdictional wetland is adjacent--meaning bordering, 
contiguous, or neighboring--to a jurisdictional waterbody displaying an 
OHWM or other indicators of jurisdiction, that waterbody and its 
adjacent wetlands are considered together as a single aquatic unit (see 
33 CFR 328.4(c)(2)). Examples of ``waterbodies'' include streams, 
rivers, lakes, ponds, and wetlands.

[FR Doc. E7-3960 Filed 3-9-07; 8:45 am]
BILLING CODE 3710-92-P