[Federal Register Volume 81, Number 105 (Wednesday, June 1, 2016)]
[Proposed Rules]
[Pages 35186-35240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12083]
[[Page 35185]]
Vol. 81
Wednesday,
No. 105
June 1, 2016
Part III
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Chapter II
Proposal To Reissue and Modify Nationwide Permits; Proposed Rule
Federal Register / Vol. 81 , No. 105 / Wednesday, June 1, 2016 /
Proposed Rules
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Chapter II
RIN 0710-AA73
Proposal To Reissue and Modify Nationwide Permits
AGENCY: Army Corps of Engineers, DoD.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Army Corps of Engineers (Corps) is soliciting
comments for the reissuance of the existing nationwide permits (NWPs),
general conditions, and definitions, with some modifications. The Corps
is also proposing to issue two new NWPs and one new general condition.
The Corps is requesting comment on all aspects of these proposed
nationwide permits. The reissuance process starts with this publication
of the proposed NWPs in the Federal Register for a 60-day comment
period. The purpose of this Federal Register document is to solicit
comments on the proposed new and modified NWPs, as well as the NWP
general conditions and definitions. Shortly after the publication of
this Federal Register document, each Corps district will publish a
public notice to solicit comments on its proposed regional conditions
for these NWPs.
DATES: Submit comments on or before August 1, 2016.
ADDRESSES: You may submit comments, identified by docket number COE-
2015-0017 and/or RIN 0710-AA73, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Email: [email protected]. Include the docket number, COE-2015-
0017, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street
NW., Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
As explained later, the proposed rule would establish new and
revise existing information collection requirements. If you wish to
comment on the information collection requirements in this proposed
rule, please note that the Office of Management and Budget (OMB) is
required to make a decision concerning the collection of information
contained in this proposed rule between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment to OMB on the proposed information collection requirements is
best assured of having its full effect if OMB receives it by July 1,
2016.
Instructions: If submitting comments through the Federal
eRulemaking Portal, direct your comments to docket number COE-2015-
0017. All comments received will be included in the public docket
without change and may be made available on-line at http://www.regulations.gov, including any personal information provided,
unless the commenter indicates that the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI, or otherwise protected,
through regulations.gov or email. The regulations.gov Web site is an
anonymous access system, which means we will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email directly to the Corps without going through
regulations.gov your email address will be automatically captured and
included as part of the comment that is placed in the public docket and
made available on the Internet. If you submit an electronic comment we
recommend that you include your name and other contact information in
the body of your comment and with any disk or CD-ROM you submit. If we
cannot read your comment because of technical difficulties and cannot
contact you for clarification we may not be able to consider your
comment. Electronic comments should avoid the use of any special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: For access to the docket to read background documents or
comments received, go to regulations.gov. All documents in the docket
are listed. Although listed in the index, some information is not
publicly available, such as CBI or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or
access the U.S. Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Army Corps of Engineers (Corps) issues nationwide permits
(NWPs) to authorize activities under Section 404 of the Clean Water Act
and Section 10 of the Rivers and Harbors Act of 1899 that will result
in no more than minimal individual and cumulative adverse environmental
effects. There are currently 50 NWPs. These NWPs were published in the
February 21, 2012, issue of the Federal Register (77 FR 10184) and
expire on March 18, 2017. With this Federal Register notice, we are
beginning the process for reissuing the NWPs so that the reissued NWPs
will be in effect immediately after the current NWPs expire.
Section 404(e) of the Clean Water Act provides the statutory
authority for the Secretary of the Army, after notice and opportunity
for public hearing, to issue general permits on a nationwide basis for
any category of activities involving discharges of dredged or fill
material into waters of the United States. The Secretary's authority to
issue permits has been delegated to the Chief of Engineers and his or
her designated representatives. Nationwide permits are a type of
general permit issued by the Chief of Engineers and are designed to
regulate with little, if any, delay or paperwork certain activities in
jurisdictional waters and wetlands that have no more than minimal
adverse environmental impacts (see 33 CFR part 330.1(b)). Activities
authorized by NWPs and other general permits must be similar in nature,
cause only minimal adverse environmental effects when performed
separately, and will have only minimal cumulative adverse effect on the
environment (see 33 U.S.C. 1344(e)(1)). Nationwide permits can also be
issued to authorize activities pursuant to Section 10 of the Rivers and
Harbors Act of 1899 (see 33 CFR part 322.2(f)). The NWP program is
designed to provide timely authorizations for the regulated public
while protecting the Nation's aquatic resources.
The phrase ``minimal adverse environmental effects when performed
separately'' refers to the direct and indirect adverse environmental
effects caused by a specific activity authorized by an NWP. The phrase
``minimal cumulative adverse effect on the environment'' refers to the
collective direct and indirect adverse environmental effects caused by
the all the activities authorized by a particular NWP during the time
period that NWP is in effect (a period of no more than 5 years) in a
specific geographic region. The appropriate geographic area for
assessing cumulative effects is
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determined by the decision-making authority for the general permit.
When Corps Headquarters issues or reissues an NWP, it conducts a
national-scale cumulative impact assessment in accordance with the
National Environmental Policy Act definition of ``cumulative impact''
at 40 CFR 1508.7. The NEPA cumulative effects analysis prepared by
Corps Headquarters for an NWP examines the impact on the environment
which results from the incremental impact of its action (i.e., the
activities that will be authorized by that NWP) and adds that
incremental impact to ``other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or non-Federal) or
person undertakes such other actions'' (40 CFR 1508.7). In addition to
environmental impacts caused by activities authorized by the NWP, other
NWPs, and other types of DA permits, the Corps' NEPA cumulative effects
analysis in each of its national decision documents discusses, in
general terms, the environmental impacts caused by other past, present,
and reasonably foreseeable future Federal, non-Federal, and private
actions. For example, wetlands and other aquatic ecosystems are
affected by a wide variety of Federal, non-Federal, and private actions
that involve land use/land cover changes, pollution, resource
extraction, species introductions and removals, and climate change
(Millennium Ecosystem Assessment 2005).
Corps Headquarters fulfills the requirements of NEPA when it
finalizes the environmental assessment in its national decision
document for the issuance or reissuance of an NWP. An NWP verification
issued by a district engineer does not require separate NEPA
documentation (see 53 FR 3126, the Corps' final rule for implementing
the National Environmental Policy Act, which was published in the
February 3, 1986, issue of the Federal Register). When a district
engineer issues an NWP verification, he or she is merely verifying that
the activity is authorized by an NWP issued by Corps Headquarters. That
verification is subject to any activity-specific conditions added to
the NWP authorization by the district engineer. When reviewing a
request for an NWP verification, the district engineer considers, among
other factors, the ``cumulative adverse environmental effects resulting
from activities occurring under the NWP'' (33 CFR 330.5(d)(1)).
If that NWP authorizes discharges of dredged or fill material into
waters of the United States, the Corps also conducts a national-scale
cumulative effects analysis in accordance with the 404(b)(1)
Guidelines. The 404(b)(1) Guidelines approach to cumulative effects
analysis for the issuance or reissuance of general permits is described
at 40 CFR 230.7(b).
Corps Headquarters issues a decision document for each NWP, which
includes a NEPA environmental assessment, a public interest review, and
if applicable, a 404(b)(1) Guidelines analysis. Each NWP is a stand-
alone general permit.
When the Corps issues or reissues NWPs, Corps divisions are
required to prepare supplemental decision documents to provide regional
analyses of the environmental effects of those NWPs. The supplemental
decision documents also support the division engineer's decision on
modifying, suspending, or revoking one or more NWPs in a particular
region. Nationwide permits are modified on a regional basis through the
addition of regional conditions, which restricts the use of the NWPs in
those regions that are subject to those regional conditions.
Supplemental decision documents include regional cumulative effects
analyses conducted under the NEPA definition, and for those NWPs that
authorize discharges of dredged or fill material into waters of the
United States, regional cumulative effects analyses conducted in
accordance with the 404(b)(1) guidelines approach at 40 CFR 230.7(b).
The geographic regions considered in a supplemental decision document
may be of cumulative adverse environmental effects are made at
different geographic scales. In their supplemental decision documents,
division engineers will evaluate cumulative effects of each NWP at the
scale of a Corps district, state, or other geographic area, such as a
watershed or ecoregion. If the division engineer is not suspending or
revoking an NWP in a particular region, a supplemental decision
document for an NWP includes a statement finding that the use of that
NWP in the region will cause only minimal individual and cumulative
adverse environmental effects.
For some NWPs, the project proponent may proceed with the NWP
activity as long as he or she complies with all terms and conditions of
the applicable NWP(s), including regional conditions. When required,
water quality certification and/or Coastal Zone Management Act
consistency concurrence must be obtained or waived (see general
conditions 25 and 26, respectively). Other NWPs require project
proponents to notify district engineers of their proposed activities
prior to conducting regulated activities, so that district engineers
can make case-specific determinations of NWP eligibility. The
notification takes the form of a pre-construction notification (PCN).
The purpose of a PCN is to give the district engineer an opportunity to
review a proposed NWP activity (generally 45 days after receipt of a
complete PCN) to ensure that the proposed activity (i.e., discharges of
dredged or fill material into waters of the United States and/or
structures or work in navigable waters of the United States) is
authorized by NWP. The PCN requirements for the NWPs are stated in the
terms of those NWPs, as well as a number of general conditions,
especially general condition 32. Paragraph (b) of general condition 32
lists the information required for a complete PCN. We are also
proposing to develop a standard PCN form for use with the 2017 NWPs.
For the 2017 NWPs, the Corps has developed a standard form for
PCNs. There will be a separate Federal Register notice seeking comment
on the NWP PCN form. For more information on the PCN, see the
``Administrative Requirements'' section of this notice.
Twenty-one of the proposed NWPs require PCNs for all activities,
including the two proposed new NWPs. Twelve of the proposed NWPs
require PCNs for some activities authorized by those NWPs. Nineteen of
the NWPs do not require PCNs, unless notification is required to comply
with certain general conditions. All NWPs require PCNs for any proposed
activity undertaken by a non-federal entity that might affect listed
species or designated critical habitat under the Endangered Species Act
(see general condition 18 and 33 CFR part 330.4(f)(2)) or any proposed
activity undertaken by a non-federal entity that may have the potential
to cause effects to historic properties listed, or eligible for listing
in, the National Register of Historic Places (see general condition 20
and 33 CFR 330.4(g)(2)).
Except for NWPs 21, 49, and 50, and activities conducted by non-
Federal permittees that require PCNs under paragraph (c) of general
conditions 18 and 20, if the Corps district does not respond to the PCN
within 45 days of a receipt of a complete PCN the activity is
authorized by NWP (see 33 CFR 330.1(e)(1)). Regional conditions imposed
by division engineers may also add PCN requirements to one or more
NWPs.
When a Corps district receives a PCN, the district engineer reviews
the PCN and determines whether the proposed activity will result in no
more than minimal individual and cumulative
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adverse environmental effects. The district engineer applies the
criteria in paragraph 2 of section D, ``District Engineer's Decision.''
The district engineer may add conditions to the NWP authorization,
including mitigation requirements, to ensure that the verified NWP
activity results in no more than minimal individual and cumulative
adverse environmental effects. The district engineer prepares a
decision document to explain his or her conclusions. The district
engineer will consider cumulative adverse environmental effects within
a watershed, county, state, or a Corps district. If the applicant
requests a waiver of a linear foot or other NWP limit that is allowed
to be waived, and the district engineer determines, after coordinating
with the agencies, that the proposed NWP activity will result in no
more than minimal adverse environmental effects, the decision document
explains the basis for the district engineer's decision. The decision
document is part of the administrative record for the NWP verification,
and may be made available through a Freedom of Information Act request
submitted to the appropriate Corps district office.
Pre-construction notification requirements give the Corps the
opportunity to evaluate certain proposed NWP activities on a case-by-
case basis to ensure that they will cause no more than minimal adverse
environmental effects, individually and cumulatively. Some NWP
activities that require PCNs also require agency coordination (see
paragraph (d) of general condition 32). This case-by-case review of
PCNs often results in district engineers adding activity-specific
conditions, including mitigation requirements, to NWP authorizations to
ensure that the adverse environmental effects are no more than minimal.
Mitigation requirements for NWP activities can include permit
conditions (e.g., time-of-year restrictions or use of best management
practices) to avoid or minimize adverse effects on certain species or
other resources, or compensatory mitigation requirements to offset
authorized losses of jurisdictional waters and wetlands so that the net
adverse environmental effects are no more than minimal. Any
compensatory mitigation required for NWP activities must comply with
the Corps' compensatory mitigation regulations at 33 CFR part 332.
Review of a PCN may also result in the Corps district asserting
discretionary authority to require an individual permit for the
proposed activity, if the district engineer determines, based on the
information provided in the PCN and other available information, that
adverse environmental effects will be more than minimal, or there are
sufficient concerns for any of the Corps public interest review factors
(see 33 CFR 330.4(e)(2)). As discussed above, for NWP verifications,
district engineers will assess cumulative adverse environmental effects
at an appropriate regional scale. If an NWP verification includes
multiple authorizations using a single NWP (e.g., linear projects with
crossings of separate and distant waters of the United States
authorized by NWPs 12 or 14) or non-linear projects authorized with two
or more different NWPs (e.g., an NWP 28 for reconfiguring an existing
marina plus an NWP 19 for minor dredging within that marina), the
district engineer will evaluate the cumulative effects of the
applicable NWPs within the appropriate geographic area.
Because the required NEPA cumulative effects and 404(b)(1)
Guidelines cumulative effects analyses are conducted by Corps
Headquarters in its decision documents for the issuance of the NWPs,
district engineers do not need to do comprehensive cumulative effects
analyses for NWP verifications. For an NWP verification, the district
engineer only needs to assess the cumulative adverse environmental
effects of the NWP or NWPs at the appropriate geographic scale (e.g.,
Corps district, watershed, ecoregion) and include a statement in
administrative record stating whether the proposed NWP activity, plus
any required mitigation, will result in no more than minimal individual
and cumulative adverse environmental effects. If the district engineer
determines, after considering mitigation, that there will be more than
minimal cumulative adverse environmental effects, he or she will
exercise discretionary authority and require an individual permit.
Today's proposal to reissue the 50 existing NWPs with some
modifications and to issue two new NWPs reflects the Corps commitment
to environmental protection. We are proposing to revise the text of
some of the NWPs, general conditions, and definitions so that they are
clearer and can be more easily understood by the regulated public,
government personnel, and interested parties while retaining terms and
conditions that protect the aquatic environment. Making the text of the
NWPs clearer and easier to understand will also facilitate compliance
with these permits, which will also benefit the aquatic environment.
The NWP program allows the Corps to authorize activities with only
minimal adverse environmental impacts in a timely manner. Thus, the
Corps is able to better protect the aquatic environment by focusing its
limited resources on more extensive evaluations through the individual
permit process focused on more rigorous evaluation of activities that
have the potential for causing more severe adverse environmental
effects.
Through the NWPs, the aquatic environment will also receive
additional protection through regional conditions imposed by division
engineers and activity-specific conditions added to NWPs by district
engineers. These regional conditions and activity-specific conditions
further minimize adverse environmental effects, because these
conditions can only further restrict use of the NWPs. Nationwide
permits also allow Corps district engineers to exercise, on a case-by-
case basis, discretionary authority to require individual permits for
proposed activities that may result in more than minimal individual and
cumulative adverse environmental effects. Nationwide permits help
protect the aquatic environment because they provide incentives to
permit applicants to reduce impacts to jurisdictional waters and
wetlands to meet the restrictive requirements of the NWPs and receive
authorization more quickly than they would through the individual
permit process. Regional general permits issued by district engineers
provide similar environmental protections and incentives to project
proponents.
Regional conditions may be imposed on the NWPs by division
engineers to take into account regional differences in aquatic resource
functions and services across the country and to restrict or prohibit
the use of NWPs to protect those resources. Through regional
conditions, a division engineer can modify an NWP to require submission
of PCNs for certain activities. Regional conditions may also restrict
or prohibit the use of an NWP in certain waters or geographic areas, if
the use of that NWP in those waters or areas might result in more than
minimal individual or cumulative adverse environmental effects.
Regional conditions may not be less stringent than the NWPs.
A district engineer may impose activity-specific conditions on an
NWP authorization to ensure that the NWP activity will result in no
more than minimal individual and cumulative adverse effects on the
environment and other public interest review factors. In addition,
activity-specific conditions will often include mitigation
requirements, including avoidance and
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minimization, and possibly compensatory mitigation, to reduce the
adverse environmental effects of the proposed activity so that they are
no more than minimal. Compensatory mitigation requirements for NWP
activities must comply with the applicable provisions of 33 CFR part
332. Compensatory mitigation may include the restoration,
establishment, enhancement, and/or preservation of wetlands.
Compensatory mitigation may also include the rehabilitation,
enhancement, or preservation of streams, as well as the restoration,
enhancement, and protection/maintenance of riparian areas next to
streams and other open waters. District engineers may also require
compensatory mitigation for impacts to other types of aquatic
resources, such as seagrass beds, shallow sandy bottom marine areas,
and coral reefs.
Compensatory mitigation can be provided through permittee-
responsible mitigation, mitigation banks, or in-lieu fee programs. If
the required compensatory mitigation will be provided through
mitigation bank or in-lieu fee program credits, the permit conditions
must comply with the requirements at 33 CFR 332.3(k)(4), and specify
the number and resource type of credits that need to be secured by the
permittee. If the required compensatory mitigation will be provided
through permittee-responsible mitigation, the permit conditions must
comply with 33 CFR 332.3(k)(3).
Process for Reissuing the NWPs
The NWPs reissued on February 13, 2012, went into effect on March
19, 2012. Those NWPs expire on March 18, 2017. The process for
reissuing the NWPs for the next five-year period starts with today's
publication of the proposed NWPs in the Federal Register for a 60-day
comment period. Requests for a public hearing must be submitted in
writing to the address in the ADDRESSES section of this notice. These
requests must explain the reason or reasons why a public hearing should
be held. If we determine that a public hearing or hearings would assist
in making a decision on the proposed NWPs, general conditions, and
definitions, a 30-day advance notice will be published in the Federal
Register to advise interested parties of the date(s) and location(s)
for the public hearing(s). Any announcement of public hearings would
also be posted as a supporting document in docket number COE-2015-0017
at www.regulations.gov as well as the Corps Regulatory Program home
page at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.
Shortly after the publication of this Federal Register notice,
Corps district offices will issue public notices to solicit comments on
proposed regional conditions. In their district public notices,
district engineers may also propose to suspend or revoke some or all of
these NWPs if they have issued, or are proposing to issue, regional
general permits, programmatic general permits, or section 404 letters
of permission for use instead of some or all of these NWPs. The comment
period for these district public notices will be 45 days.
After the comment period has ended, we will review the comments
received in response to this Federal Register notice. Then we will
draft the final NWPs, and those draft final NWPs will be subjected to
another review under Executive Order 12866, Regulatory Planning and
Review. The Corps will try to publish the final NWPs in the Federal
Register approximately 90 days before the planned effective date of
March 19, 2017, the day after the 2012 NWPs expire. This 90-day period
provides coastal state governments the opportunity to make their
Coastal Zone Management Act (CZMA) consistency determinations for these
NWPs, consistent with 15 CFR 930.36(b). During this 90-day period,
state governments, tribal governments, and EPA will make their Clean
Water Act Section 401 water quality certifications (WQCs) for these
NWPs. The CZMA/WQC and regional conditioning processes are discussed in
more detail below.
Within this 90-day period, Corps districts will prepare
supplemental decision documents and proposed regional conditions for
approval by division engineers before the final NWPs go into effect.
Supplemental decision documents address the environmental
considerations related to the use of NWPs in a Corps district, state,
or other geographic region. The supplemental decision documents will
certify that the NWPs, with any regional conditions or geographic
suspensions or revocations, will authorize only those activities that
result in no more than minimal individual and cumulative adverse
effects on the environment or any relevant public interest review
factor.
Existing and New Permits
Activities authorized by the 2012 NWPs remain authorized by those
NWPs until March 18, 2017. An activity completed under the
authorization provided by a 2012 NWP continues to be authorized by that
NWP (see 33 CFR 330.6(b)). Activities authorized by the 2012 NWPs that
have commenced or are under contract to commence by March 18, 2017,
will have one year (i.e., until March 18, 2018) to complete those
activities under the terms and conditions of the 2012 NWPs (see 33 CFR
330.6(b)). Activities previously authorized by the 2012 NWPs that have
not commenced or are not under contract to commence by March 18, 2017,
will require reauthorization under the 2017 NWPs, provided those
activities qualify for authorization under the 2017 NWPs. If those
activities no longer qualify for NWP authorization because they do not
meet the terms and conditions of the 2017 NWPs (including any regional
conditions imposed by division engineers), the project proponent will
need to obtain an individual permit, or seek authorization under a
regional general permit, if such a general permit is available in the
applicable Corps district and can be used to authorize the proposed
activity.
National Environmental Policy Act Compliance
We have prepared a draft decision document for each proposed NWP.
Each draft decision document contains an environmental assessment (EA).
The EA includes the public interest review described in 33 CFR
320.4(b). The EA generally discusses the anticipated impacts the NWP
will have on the human environment and the Corps' public interest
review factors. If a proposed NWP authorizes discharges of dredged or
fill material into waters of the United States, the draft decision
document will also include analysis conducted pursuant to guidelines
set out in section 404(b)(1) of the Clean Water Act (404(b)(1)
Guidelines) in accordance with 40 CFR 230.7. These decision documents
evaluate the environmental effects of each NWP from a national
perspective.
The draft decision documents for the proposed NWPs are available on
the internet at: www.regulations.gov (docket ID number COE-2015-0017)
as Supporting Documents. We are soliciting comments on these draft
national decision documents, and any comments received will be
considered when preparing the final decision documents for the NWPs.
After the NWPs are issued or reissued, division engineers will
issue supplemental decision documents to evaluate environmental effects
on a regional basis (e.g., state or Corps district). The supplemental
decision documents are prepared by Corps districts, but must be
approved and
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formally issued by the appropriate division engineer, since the NWP
regulations at 33 CFR 330.5(c) state that the division engineer has the
authority to modify, suspend, or revoke NWP authorizations for any
specific geographic area within his or her division. For some Corps
districts, their geographic area of responsibility covers an entire
state. For other states, there is more than one Corps district
responsible for implementing the Corps Regulatory Program, including
the NWP program. In those states, there is a lead Corps district
responsible for preparing the supplemental decision documents for all
of the NWPs. The supplemental decision documents will discuss regional
conditions imposed by division engineers to protect the aquatic
environment and ensure that any adverse environmental effects resulting
from NWP activities in that region will be no more than minimal,
individually and cumulatively.
For the NWPs, the assessment of cumulative effects occurs at three
levels: National, regional, and the verification stage. Each national
NWP decision document includes a national-scale NEPA cumulative effects
analysis. Each supplemental decision document has a NEPA cumulative
effects analysis conducted for a region, which is usually a state or
Corps district. When a district engineer issues a verification letter
in response to a PCN or a voluntary request for a NWP verification, the
district engineer prepares a brief decision document. That decision
document explains whether the proposed NWP activity, after considering
permit conditions such as mitigation requirements, will result in no
more than minimal individual and cumulative adverse environmental
effects.
If the NWP is not suspended or revoked in a state or a Corps
district, the supplemental decision document includes a certification
that the use of the NWP in that district, with any applicable regional
conditions, will result in no more than minimal cumulative adverse
environmental effects.
After the NWPs are issued or reissued, evaluations by a district
engineer may result in a recommendation to the division engineer to
modify, suspend, or revoke one or more NWPs in a particular geographic
region or watershed at a later time. Such a recommendation will occur
if the district engineer finds information indicating that the use of
an NWP in a particular area may result in more than minimal individual
or cumulative adverse environmental effects. In such cases, the
division engineer will amend the applicable supplemental decision
documents to account for the modification, suspension, or revocation of
those NWPs.
Compliance With Section 404(e) of the Clean Water Act
The proposed NWPs are issued in accordance with section 404(e) of
the Clean Water Act and 33 CFR part 330. These 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 that the ``categories of
activities that are similar in nature'' requirement in Clean Water Act
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
while maintaining environmental protection, by efficiently authorizing
activities that have no more than minimal adverse environmental
effects, consistent with Congressional intent in the 1977 amendments to
the Federal Water Pollution Control Act. Keeping the number of NWPs
manageable is a key component for making the NWPs protective of the
environment and streamlining the authorization process for those
general categories of activities that have no more than minimal
individual and cumulative adverse environmental effects.
The various terms and conditions of these NWPs, including the NWP
regulations at 33 CFR 330.1(d) and 330.4(e), allow district engineers
to exercise discretionary authority to modify, suspend, or revoke NWP
authorizations or to require individual permits, and ensure compliance
with section 404(e) of the Clean Water Act. For each NWP that may
authorize discharges of dredged or fill material into waters of the
United States, the national and supplemental decision documents include
404(b)(1) Guidelines analyses. These 404(b)(1) Guidelines analyses are
conducted in accordance with 40 CFR part 230.7.
The 404(b)(1) Guidelines analyses in the national and supplemental
decision documents also include a cumulative effects analysis, in
accordance with 40 CFR 230.7(b) and 230.11(g). A 404(b)(1) Guidelines
cumulative effects analysis is provided in addition to the NEPA
cumulative effects analysis because the implementing regulations for
NEPA and the 404(b)(1) Guidelines define ``cumulative impacts'' or
``cumulative effects'' differently.
2015 Revisions to the Definition of ``Waters of the United States''
In the June 29, 2015, edition of the Federal Register (80 FR 37054)
the U.S. Environmental Protection Agency (EPA) and the Army published a
final rule amending the definition of ``waters of the United States''
in the Corps' regulations at 33 CFR part 328 and in a number of EPA's
regulations. Numerous parties filed multiple challenges to the 2015
final rule, which currently are pending. On October 9, 2015, the United
States Court of Appeals for the Sixth Circuit issued a stay of the rule
pending further order of that court.
We are seeking the views of NWP users on how the 2015 revisions to
the definition of ``waters of the United States'' might affect the
applicability and efficiency of the proposed NWPs. We are also seeking
comments on changes to the NWPs, general conditions, and definitions
that would help ensure that activities that result in no more than
minimal individual and cumulative adverse environmental effects can
continue to be authorized by the NWPs. The objective of such changes is
to continue to be consistent with Congressional intent for section
404(e) of the Clean Water Act, which calls for a streamlined
authorization process for regulated activities with only minimal
adverse environmental effects.
After the final rule defining waters of the United States was
published on June 29, 2015, the Corps received letters from several
entities requesting that the Corps consider increasing the acreages
limits and PCN thresholds for several NWPs. One group suggested
increasing the acreage limits and PCN thresholds for NWPs 12, 14, 18,
43, 51, and 52 and another group asked for increases in the acreage
limits and PCN thresholds for NWPs 12, 14, 39, 43, 51, and 52. The
former group recommended increasing the acreage limits of NWPs 12, 14,
43, 51, and 52 to one acre and the acreage limit of NWP 18 to \1/2\-
acre. The latter group said the acreage limits of NWPs 12, 14, 39, 43,
51, and 52 should be raised to two acres. Both of these groups cited
the President's Climate Action Plan and EPA's proposed Clean Power Plan
as reasons to increase the acreage limits and PCN thresholds of these
NWPs. They said these NWPs are important tools for meeting goals for
natural gas and renewable energy production and transmission, to reduce
greenhouse gas emissions. Further, they assert that new and modified
infrastructure, some of which would
[[Page 35191]]
likely be authorized by NWPs 12, 39, 51 and 52, would need to be
constructed and operational in the next several years to meet the goals
in the Climate Action Plan.\1\
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\1\ Nationwide permits 3, 12, and 14 are frequently used to
authorize discharges of dredged or fill material into waters of the
United States and structures and work in navigable waters of the
United States associated with the construction and maintenance of
infrastructure, including energy and transportation infrastructure.
Nationwide permits 51 and 52 authorize renewable energy projects.
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Therefore, we are seeking comment on changes in the terms and
conditions of the NWPs. These could include changes in acreage and
linear foot limits (see below), PCN thresholds, and the use of other
tools for complying with the no more than minimal adverse environmental
effects requirement for NWPs and other types of general permits. Such
tools include using PCNs and the activity- and site-specific review
they require and retaining the \1/10\-acre threshold for requiring
wetland compensatory mitigation (see paragraph (c) of general condition
23).
Acreage Limits and Pre-Construction Notification Thresholds
We are seeking comment on whether to retain the \1/2\-acre limit
that has been imposed on certain NWPs (i.e., NWPs 12, 14, 21, 29, 39,
42, 43, 44, 50, 51, and 52), or to impose different acreage limits on
these NWPs. We are seeking comment on the acreage limits in part
because of the suggestions from various entities mentioned in the
previous section of this notice. Another reason we are soliciting
comments on the acreage limits is to help determine whether there are
alternative acreage limits that would be more effective at ensuring
that the NWPs continue to meet their intended purpose of providing a
streamlined authorization process for activities resulting in no more
than minimal individual and cumulative adverse environmental effects.
Many of the NWPs listed in the previous sentence have had this \1/2\-
acre limit since 2000. Nationwide permit 50 was first issued in 2007
and NWPs 51 and 52 were originally issued in 2012. We welcome comments
and suggestions for higher or lower acreage limits and those comments
and suggestions should include relevant data and other information that
explain why the acreage limits should be changed. Different acreage
limits can be suggested for NWPs that authorize different categories of
activities.
Comments should explain how your recommended changes to acreage
limits would help the NWP program continue to comply with Congressional
intent for a streamlined process for authorizing regulated activities
that result in no more than minimal individual and cumulative adverse
environmental effects. The intent of Congress was articulated through
the 1977 amendments to the Federal Water Pollution Control Act (33
U.S.C. 1344(e)). Commenters should consider that general permits are an
important tool for protecting the environment by providing incentives
to minimize impacts to jurisdictional waters and wetlands to qualify
for a streamlined authorization process. If those incentives are
removed by reducing the acreage limits so that designing projects to
qualify for NWP authorization is no longer practical, project
proponents may submit permit applications for activities with
substantial adverse environmental impacts. General permits are also an
important tool for managing the Corps' Regulatory Program, and allow
the Corps to focus its resources on evaluating individual permit
applications for proposed activities that have the potential for
resulting in substantial adverse environmental impacts.
We are also soliciting comments on changing the PCN thresholds for
those NWPs that require pre-construction notification. Pre-construction
notifications are an important tool for ensuring that NWP activities
result in only minimal and individual and cumulative adverse
environmental effects. Pre-construction notifications allow district
engineers to evaluate the activity- and site-specific circumstances of
proposed NWP activities to decide whether those activities are eligible
for NWP authorization or require individual permits. In addition, PCNs
provide district engineers with the opportunity to impose activity-
specific conditions on NWPs, including mitigation requirements, to
comply with the statutory requirements of Section 404(e) of the Clean
Water Act. Pre-construction notifications also facilitate compliance
with the Endangered Species Act and the National Historic Preservation
Act.
There are circumstances where requiring PCNs for all activities
authorized by an NWP is not necessary to satisfy the ``no more than
minimal'' adverse environmental effects requirement. We are soliciting
comment on whether the PCN thresholds for specific NWPs should be
changed to improve the efficiency of the NWP Program while maintaining
strong protection of the aquatic environment and other public interest
review factors relevant to the Corps' Regulatory Program.
Waivers of Certain Nationwide Permit Limits
Since 2002, certain NWPs have had a 300-linear foot limit for
losses of stream bed that could be waived after a district engineer
evaluates the PCN and determines that the proposed NWP activity would
result in no more than minimal individual and cumulative adverse
environmental effects. In the 2012 NWPs, we added a requirement that
waivers of certain NWP limits could only be granted through a written
determination by a district engineer concluding that the proposed NWP
activity would result only in minimal adverse environmental effects.
The ability to waive those limits provides flexibility in the NWPs to
authorize, after an activity-specific review, activities that are
specifically determined by district engineers to result in no more than
minimal adverse environmental effects.
In today's proposal, the following NWPs have certain limits that
can be waived with a written determination of a district engineer after
review of a PCN: NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51, and
52. For all these NWPs, the district engineer can only grant the waiver
upon making a written determination that the NWP activity will result
in only minimal adverse environmental effects. For NWPs 21, 29, 39, 40,
42, 43, 44, 50, 51, and 52, the total loss of waters of the United
States, including any waivers of the 300 linear foot limit for the loss
of intermittent and ephemeral stream bed, cannot exceed \1/2\-acre.
The Corps uses an internal, automated information system to track
all individual permit applications and NWP verification requests, as
well as verifications for regional general permits and programmatic
general permits. That automated information system, known as ORM, is
used to record requested amounts of impacts to jurisdictional waters
and wetlands, as well as proposed compensatory mitigation. When the
Corps issues an individual permit or a general permit verification,
Corps district project managers record the amounts of authorized
impacts and, if required, compensatory mitigation. The proposed and
authorized impacts and compensatory mitigation are recorded as acres or
linear feet, or both, depending on the judgment of the Corps project
manager. The Corps' automated information system does not specifically
track waivers for NWP verifications, but for the 2017 NWPs we will be
modifying that system by adding data fields to record the use of
waivers for these NWPs.
[[Page 35192]]
In the 2012 NWPs, agency coordination was required for any proposed
activity authorized by NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52
where the applicant requested a waiver of the 300 linear foot limit for
the loss of intermittent or ephemeral stream bed. The agency
coordination process is described in paragraph (d)(2) of the ``pre-
construction notification'' general condition, and we are not proposing
any changes to that agency coordination process. These waivers can only
be issued after an activity-specific evaluation, consideration of
agency comments received in response to agency coordination, and the
district engineer's consideration of the nine factors for making
minimal effect determinations described in paragraph D.1 in the section
entitled ``District Engineer's Decision'' (77 FR 10184 at 10287-10288).
To gather more information on the use of waivers, we are soliciting
comment on five aspects of waivers:
(1) Making changes to the numeric limits that can be waived;
(2) whether to retain the authority of district engineers to issue
activity-specific waivers of certain NWP limits;
(3) whether to impose a linear foot cap on waivers to the 500
linear foot limit for NWPs 13 and proposed NWP B (e.g., a total waiver
amount of 1,000 linear feet), and the 20 foot limit (e.g., a total
waiver amount of 40 linear feet) in NWP 36;
(4) whether to impose a linear foot cap (e.g., a total waiver
amount of 1,000 linear feet) on losses of intermittent and ephemeral
stream bed potentially eligible for waivers of the 300 linear foot
limit for losses of stream bed in NWPs 21, 29, 39, 40, 42, 43, 44, 50,
51, and 52; and
(5) whether to require compensatory mitigation to offset all losses
of stream bed (consistent with General Condition 23(d)) authorized by
waivers of the 300 linear foot limit for NWPs 21, 29, 39, 40, 42, 43,
44, 50, 51, and 52.
Comments on suggested changes to the numeric limits above which a
waiver could be issued, and comments on whether to retain or remove the
waiver provisions, should be accompanied by data and other information
supporting the commenter's views on these questions. If the ability for
district engineers to issue waivers of certain NWP limits is removed,
then individual permits would be required for proposed activities with
losses of waters of the United States that exceed those limits.
NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 currently have a
\1/2\-acre cap on losses of waters of the United States. Any loss of
stream bed, including any losses of intermittent and ephemeral stream
bed in excess of 300 linear feet that are waived upon a written
determination by the district engineer after agency coordination,
counts towards that \1/2\-acre limit. We are seeking comment on whether
there should also be a linear foot cap on those waivers, in addition to
the \1/2\-acre limit. Commenters supporting a linear foot cap on
waivers for the loss of intermittent and ephemeral stream bed should
provide a suggested numeric linear foot cap. Commenters should also
explain how their suggested linear foot limit will help ensure that
these NWPs only authorize activities with no more than minimal adverse
environmental effects, and include supporting data and other
information.
We are also seeking comment on whether to require compensatory
mitigation for all losses of intermittent or ephemeral stream bed
authorized by NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 through a
district engineer's written waiver of the 300 linear foot limit.
Commenters are encouraged to provide data to support their position
including providing data that demonstrate that compensatory mitigation
is necessary to reach a finding of minimal impact based on the criteria
listed in paragraph 2, section D for specific resource types.
It is important to note that district engineers can only issue
those waivers after conducting agency coordination. District engineers
fully consider agency comments received during that coordination,
including any agency comments recommending requiring compensatory
mitigation to ensure that the net adverse environmental effects are no
more than minimal. In the NWP program, district engineers require
compensatory mitigation on a case-by-case basis when necessary to
ensure that proposed NWP activities will result in no more than minimal
individual and cumulative adverse environmental effects (see 33 CFR
part 330.1(e)(3) and general condition 23).
When making waiver decisions for NWPs 21, 29, 39, 40, 42, 43, 44,
50, 51, and 52, as well as compensatory mitigation decisions, district
engineers consider the nine factors in paragraph 2 of Section D,
District Engineer's Decision. The factors most relevant to compensatory
mitigation decision making are: The environmental setting in the
vicinity of the NWP activity, the functions provided by the aquatic
resources that will be affected by the NWP activity, the degree or
magnitude to which the aquatic resources perform those functions, the
extent that aquatic resource functions will be lost as a result of the
NWP activity (e.g., partial or complete loss), the duration of the
adverse effects (temporary or permanent), and the importance of the
aquatic resource functions to the region (e.g., watershed or
ecoregion). We are soliciting comment on the appropriateness and
practicability of requiring compensatory mitigation for all waivers of
the 300 linear foot limit for losses of stream bed, to offset the
losses of intermittent and ephemeral stream that are authorized by
written waivers issued by district engineers for these NWPs. We are
also seeking comments and suggestions on technical approaches for
providing compensatory mitigation to offset losses of stream bed
authorized by those written waivers.
Compliance With the Endangered Species Act
The Corps has determined that the NWP regulations at 33 CFR
330.4(f) and NWP general condition 18, endangered species, ensure that
all activities authorized by NWPs comply with section 7 of the
Endangered Species Act (ESA). Those regulations and general condition
18 require non-federal permittees to submit PCNs for any activity that
might affect listed species or designated critical habitat. The Corps
then evaluates the PCN and makes an effect determination for the
proposed NWP activity for the purposes of ESA section 7. The Corps
established the ``might affect'' threshold in 33 CFR 330.4(f)(2) and
paragraph (c) of general condition 18 because it is more stringent than
the ``may affect'' threshold for section 7 consultation in the U.S.
Fish and Wildlife Service's (FWS) and National Marine Fisheries
Service's (NMFS) ESA section 7 consultation regulations at 50 CFR part
402. The word ``might'' is defined as having ``less probability or
possibility'' than the word ``may'' (Merriam-Webster's Collegiate
Dictionary, 10th edition).
If the project proponent is required to submit a PCN and the
proposed activity might affect listed species or critical habitat, the
activity is not authorized by NWP until either the Corps district makes
a ``no effect'' determination or makes a ``may affect'' determination
and completes formal or informal ESA section 7 consultation.
When evaluating a PCN, the Corps will either make a ``no effect''
determination or a ``may affect'' determination. If the Corps makes a
``may affect'' determination, it will notify the non-federal applicant
and the activity is not authorized by NWP until ESA Section 7
consultation has been completed. If the non-federal project
[[Page 35193]]
proponent does not comply with 33 CFR 330.4(f)(2) and general condition
18, and does not submit the required PCN, then the activity is not
authorized by NWP. In such situations, it is an unauthorized activity
and the Corps district will determine an appropriate course of action
to respond to the unauthorized activity.
Federal agencies, including state agencies (e.g., certain state
Departments of Transportation) to which the Federal Highway
Administration has assigned its responsibilities pursuant to 23 U.S.C.
327, are required to follow their own procedures for complying with
Section 7 of the ESA (see 33 CFR 330.4(f)(1) and paragraph (b) of
general condition 18). This includes circumstances when an NWP activity
is part of a larger overall federal project or action. The federal
agency's ESA section 7 compliance covers the NWP activity because it is
undertaking the NWP activity and possibly other related activities that
are part of a larger overall federal project or action.
On October 15, 2012, the Chief Counsel for the Corps issued a
letter to the FWS and NMFS (the Services) clarifying the Corps' legal
position regarding compliance with the ESA for the February 13, 2012,
reissuance of 48 NWPs and the issuance of two new NWPs. That letter
explained that the issuance or reissuance of the NWPs, as governed by
NWP general condition 18 (which applies to every NWP and which relates
to endangered and threatened species), and 33 CFR 330.4(f), results in
``no effect'' to listed species or critical habitat, and therefore the
reissuance/issuance action itself does not require ESA section 7
consultation. Although the reissuance/issuance of the NWPs has no
effect on listed species or their critical habitat and thus requires no
ESA section 7 consultation, the terms and conditions of the NWPs,
including general condition 18, and 33 CFR 330.4(f) ensure that ESA
consultation will take place on an activity-specific basis wherever
appropriate at the field level of the Corps, FWS, and NMFS. The
principles discussed in the Corps' October 15, 2012, letter apply to
this proposed issuance/reissuance of NWPs. Those principles are
discussed in more detail below.
The only activities that are immediately authorized by NWPs are
``no effect'' activities under Section 7 of the ESA and its
implementing regulations at 50 CFR part 402. Therefore, the issuance or
reissuance of NWPs does not require ESA section 7 consultation because
no activities authorized by any NWPs ``may affect'' listed species or
critical habitat without first completing activity-specific ESA Section
7 consultations with the Services, as required by general condition 18
and 33 CFR 330.4(f). Regional programmatic ESA section 7 consultations
may also be used to satisfy the requirements of the NWPs in general
condition 18 and 33 CFR 330.4(f)(2) if a proposed NWP activity is
covered by that regional programmatic consultation.
ESA section 7 requires each federal agency to ensure, through
consultation with the Services, that ``any action authorized, funded,
or carried out'' by that agency ``is not likely to jeopardize the
continued existence of listed species or adversely modify designated
critical habitat.'' (See 16 U.S.C. 1536(a)(2).) Accordingly, the
Services' section 7 regulations specify that an action agency must
ensure that the action ``it authorizes,'' including authorization by
permit, does not cause jeopardy or adverse modification. (See 50 CFR
402.01(a) and 402.02.) Thus, in assessing application of ESA section 7
to NWPs issued or reissued by the Corps, the proper focus is on the
nature and extent of the specific activities ``authorized'' by the NWPs
and the timing of that authorization.
The issuance or reissuance of the NWPs by the Chief of Engineers
imposes express limitations on activities authorized by those NWPs.
These limitations are imposed by the NWP terms and conditions,
including the general conditions that apply to all NWPs regardless of
whether pre-construction notification is required. With respect to
listed species and critical habitat, general condition 18 expressly
prohibits any activity ``which `may affect' a listed species or
critical habitat, unless section 7 consultation addressing the effects
of the proposed activity has been completed.'' General condition 18
also states that if an activity ``may affect'' a listed species or
critical habitat, a non-federal applicant must submit a PCN 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.'' Permit applicants that are Federal agencies
should follow their own requirements for complying with the ESA (see 33
CFR 330.4(f)(1)), and if a PCN is required the district engineer will
review the federal agency's ESA compliance documentation and determine
whether it is sufficient to address ESA compliance for the NWP
activity.
Thus, because no NWP can or does authorize an activity that may
affect a listed species or critical habitat absent an activity-specific
ESA section 7 consultation, and because any activity that may affect a
listed species or critical habitat must undergo an activity-specific
consultation before the district engineer can verify that the activity
is authorized by NWP, the issuance or reissuance of NWPs has ``no
effect'' on listed species or critical habitat. Accordingly, the action
being ``authorized'' by the Corps (i.e., the issuance or re-issuance of
the NWPs themselves) has no effect on listed species or critical
habitat.
To help ensure protection of listed species and critical habitat,
general condition 18 establishes a higher threshold than the threshold
set forth in the Services' ESA section 7 regulations for initiation of
section 7 consultation. Specifically, while section 7 consultation must
be initiated for any activity that ``may affect'' listed species or
critical habitat, for non-federal permittees general condition 18
requires submission of a PCN to the Corps if ``any listed species or
designated critical habitat might be affected or is in the vicinity of
the activity, or if the activity is located in designated critical
habitat'' and prohibits work until ``notified by the district engineer
that the requirements of the ESA have been satisfied and that the
activity is authorized.'' (See paragraph (c) of general condition 18.)
The PCN must ``include the name(s) of the endangered or threatened
species that might be affected by the proposed work or that utilize the
designated critical habitat that might be affected by the proposed
work.'' (See paragraph (b)(7) of general condition 32.) Paragraph (f)
of general condition 18 notes that information on the location of
listed species and their critical habitat can be obtained from the
Services directly, or from their Web sites.
General condition 18 makes it clear to project proponents that an
NWP does not authorize the ``take'' of an endangered or threatened
species. Paragraph (e) of general condition 18 also states that a
separate authorization (e.g., an ESA section 10 permit or a biological
opinion with an ``incidental take statement'') is required to take a
listed species. In addition, paragraph (a) of general condition 18
states that no activity is authorized by NWP which is likely to
``directly or indirectly jeopardize the continued existence of a
threatened or endangered species or a species proposed for such
designation'' or ``which will directly or indirectly destroy or
adversely modify the critical habitat of such species.'' Such
activities would require district engineers to exercise their
discretionary authority
[[Page 35194]]
and subject the proposed activity to the individual permit review
process, because an activity that would jeopardize the continued
existence of a listed species, or a species proposed for listing, or
that would destroy or adversely modify the critical habitat of such
species would not result in minimal adverse environmental effects and
thus cannot be authorized by NWP.
During the process for developing regional conditions, Corps
districts coordinate or consult with FWS and/or NMFS regional or field
offices to identify regional conditions that can provide additional
assurance of compliance with general condition 18 and 33 CFR
330.4(f)(2). Such regional conditions can add PCN requirements to one
or more NWPs in areas inhabited by listed species or where designated
critical habitat occurs. Regional conditions can also be used to
establish time-of-year restrictions when no NWP activity can take place
to ensure that individuals of listed species are not adversely affected
by such activities. Corps districts will continue to consider through
regional consultations, local initiatives, or other cooperative efforts
additional information and measures to ensure protection of listed
species and critical habitat, the requirements established by general
condition 18 (which apply to all uses of all NWPs), and other
provisions of the Corps regulations ensure full compliance with ESA
section 7.
Corps district offices meet with local representatives of the FWS
and NMFS to establish or modify existing procedures, where necessary,
to ensure that the Corps has the latest information regarding the
existence and location of any threatened or endangered species or their
critical habitat. Corps districts can also establish, through local
procedures or other means, additional safeguards that ensure compliance
with the ESA. Through formal ESA section 7 consultation, or through
other coordination with the FWS and/or the NMFS, as appropriate, the
Corps establishes procedures to ensure that NWP activities will not
jeopardize any threatened and endangered species or result in the
destruction or adverse modification of designated critical habitat.
Such procedures may result in the development of regional conditions
added to the NWP by the division engineer, or in activity-specific
conditions to be added to an NWP authorization by the district
engineer.
Based on the fact that NWP issuance or reissuance has no effect on
listed species or critical habitat and any activity that ``may affect''
listed species or critical habitat will undergo activity-specific ESA
section 7 consultation, there is no requirement that the Corps
undertake programmatic consultation for the NWP program. The national
programmatic consultations conducted in the past for the NWP program
were voluntary consultations. Regional programmatic consultation can be
conducted by Corps districts and regional or local offices of the FWS
and/or NMFS to provide further assurance against potential adverse
effects on listed species or critical habitat, and assure other
benefits to listed species or critical habitat, such as through the
establishment of additional procedures, regional NWP conditions,
activity-specific NWP conditions, or other safeguards that may be
employed by Corps district offices based on further discussions between
the Corps and the FWS and NMFS.
The programmatic ESA section 7 consultations the Corps conducted
for the 2007 and 2012 NWPs were voluntary consultations. The voluntary
programmatic consultation conducted with the NMFS for the 2012 NWPs
resulted in a biological opinion issued on February 15, 2012, which was
replaced by a new biological opinion issued on November 24, 2014, after
the proposed action was modified and triggered re-initiation of that
programmatic consultation. The programmatic consultation on the 2012
NWPs with the FWS did not result in a biological opinion.
In the Corps Regulatory Program's automated information system
(ORM), the Corps collects data on all individual permit applications,
all NWP PCNs, all voluntary requests for NWP verifications where the
NWP or general conditions do not require PCNs, and all verifications of
activities authorized by regional general permits. For all written
authorizations issued by the Corps, the collected data include
authorized impacts and required compensatory mitigation, as well as
information on all consultations conducted under section 7 of the ESA.
Every year, the Corps evaluates over 30,000 NWP PCNs and requests for
NWP verifications when PCNs are not required, and provides written
verifications for those activities when district engineers determine
those activities result in no more than minimal adverse environmental
effects. During the evaluation process, district engineers assess
potential impacts to listed species and critical habitat and conduct
section 7 consultations whenever they determine NWP activities may
affect listed species or critical habitat. District engineers will
exercise discretionary authority and require individual permits when
proposed NWP activities will result in more than minimal adverse
environmental effects.
Each year, the Corps conducts thousands of ESA section 7
consultations with the FWS and NMFS for activities authorized by NWPs.
These section 7 consultations are tracked in ORM. During the period of
March 19, 2012, to December 14, 2015, Corps districts conducted 1,188
formal consultations and 7,327 informal consultations for NWP
activities under ESA section 7. During that time period, the Corps also
used regional programmatic consultations for 7,679 NWP verifications to
comply with ESA section 7. Therefore, each year NWP activities are
covered by an average of more than 4,300 formal, informal, and
programmatic ESA section 7 consultations with the FWS and/or NMFS.
For one of the protective measures in NMFS's 2014 biological
opinion, Corps districts posted information to assist prospective NWP
users in complying with general condition 18. That implementation
guidance was issued on August 5, 2014, and provides general guidance to
prospective permittees on whether a PCN should be submitted for a
proposed NWP activity to comply with general condition 18. It also
directs prospective permittees to NMFS's Web site for additional
information on listed species and critical habitat under their
jurisdiction. Districts coordinated that document with NMFS regional
and field offices and had the option of adding region-specific
information. For the 2017 NWPs, we plan to continue using that
information document, and expanding it to include information on listed
species and critical habitat under the jurisdiction of the FWS.
During the process for reissuing the NWPs, Corps districts will
coordinate with regional and field offices of the FWS and NMFS to
discuss whether new or modified regional conditions should be imposed
on the NWPs to improve protection of listed species and designated
critical habitat. Regional conditions must comply with the Corps'
regulations for adding permit conditions (33 CFR 325.4), and the Corps
decides whether suggested regional conditions identified during this
coordination are appropriate for the NWPs. During this coordination,
other tools, such as additional regional programmatic consultations or
standard local operating procedures, might be identified to facilitate
compliance with the ESA while streamlining the process for authorizing
activities under the NWPs. Section 7 consultation on regional
conditions only occurs when a
[[Page 35195]]
Corps districts makes a ``may affect'' determination and initiates
formal or informal section 7 consultation with the FWS and/or NMFS,
depending on the species that may be affected. Otherwise, the Corps
district coordinates with the FWS and/or NMFS. Regional conditions,
standard local operating procedures, and regional programmatic
consultations are important tools for protecting listed species and
critical habitat and helping to tailor the NWP program to address
specific species, their habitats, and the stressors that affect those
species.
Compliance With the Essential Fish Habitat Provisions of the Magnuson-
Stevens Fishery Conservation and Management Act
The NWP Program's compliance with the essential fish habitat (EFH)
consultation requirements of the Magnuson-Stevens Fishery Conservation
and Management Act will be achieved through EFH consultations between
Corps districts and NMFS regional offices. This approach continues the
EFH Conservation Recommendations provided by NMFS Headquarters to Corps
Headquarters in 1999 for the NWP program. Corps districts that have EFH
designated within their geographic areas of responsibility will
coordinate with NMFS regional offices, to the extent necessary, to
develop NWP regional conditions that conserve EFH and are consistent
the NMFS regional EFH Conservation Recommendations. Corps districts
will conduct consultations in accordance with the EFH consultation
regulations at 50 CFR 600.920.
Regional Conditioning of Nationwide Permits
Under section 404(e) of the Clean Water Act, NWPs can only be
issued for those activities that result in no more than minimal
individual and cumulative adverse environmental effects. For activities
that require authorization under Section 10 of the Rivers and Harbors
Act of 1899 (33 U.S.C. 403), the Corps' regulations at 33 CFR 322.2(f)
have a similar requirement. An important mechanism for ensuring
compliance with these requirements is regional conditions imposed by
division engineers to address local environmental concerns.
Coordination with federal and state agencies and Tribes, and the
solicitation of public comments, assist division and district engineers
in identifying and developing appropriate regional conditions for the
NWPs. Effective regional conditions protect local aquatic ecosystems
and other resources and helps ensure that the NWPs authorize only those
activities that result in no more than minimal individual and
cumulative adverse effects on the aquatic environment, and are in the
public interest.
There are two types of regional conditions: (1) Corps regional
conditions and (2) water quality certification/Coastal Zone Management
Act consistency determination regional conditions.
Corps regional conditions may be added to NWPs by division
engineers after a public notice and comment process and coordination
with appropriate federal, state, and local agencies, as well as Tribes.
The process for adding Corps regional conditions to the NWPs is
described at 33 CFR 330.5(c).
Examples of Corps regional conditions include:
Restricting the types of waters of the United States where
the NWPs may be used (e.g., fens, bogs, bottomland hardwoods, etc.) or
prohibiting the use of some or all of the NWPs in those types of waters
or in specific watersheds.
Restricting or prohibiting the use of NWPs in an area
covered by a Special Area Management Plan, where regional general
permits are issued to authorize activities consistent with that plan
that have only minimal adverse environmental effects.
Revoking certain NWPs in a watershed or other type of
geographic area (e.g., a state or county).
Adding PCN requirements to NWPs to require notification
for all activities or lowering PCN thresholds, in certain watersheds or
other types of geographic areas, or in certain types of waters of the
United States.
Reducing NWP acreage limits in certain types of waters of
the United States or specific waterbodies, or in specific watersheds or
other types of geographic regions.
Restricting activities authorized by NWPs to certain times
of the year in a particular waterbody, to minimize the adverse effects
of those activities on fish or shellfish spawning, wildlife nesting, or
other ecologically cyclical events.
Conditions necessary to facilitate compliance with general
condition 18, to enhance protection of listed species or critical
habitat under the Endangered Species Act.
Conditions necessary to facilitate compliance with general
condition 17, to enhance protection of tribal trust resources,
including natural and cultural resources and Indian lands.
Conditions necessary for ensuring compliance with general
condition 20, to protect historic properties.
Conditions necessary to ensure that NWP activities have no
more than minimal adverse effects to Essential Fish Habitat.
Corps regional conditions approved by division engineers cannot
remove or reduce any of the terms and conditions of the NWPs, including
general conditions. Corps regional conditions cannot lessen PCN
requirements. In other words, Corps regional conditions can only be
more restrictive than the NWP terms and conditions established by Corps
Headquarters when it issues or reissues an NWP.
Water quality certification (WQC) regional conditions are added to
the NWPs as a result of water quality certifications issued by states,
Tribes, or the U.S. EPA. Regional conditions are added to the NWPs
through the state Coastal Zone Management Act consistency review
process. These WQC/CZMA regional conditions are reviewed by Corps
division engineers to determine whether they are consistent with the
Corps regulations for permit conditions at 33 CFR 325.4. Regulatory
Guidance Letter 92-4, issued on September 14, 1992, provides additional
guidance and information on WQC and CZMA conditions for the NWPs.
At approximately the same time as the publication of this Federal
Register notice, each Corps district will issue an initial public
notice. The public comment period for these district public notices
will be 45 days. Those initial public notices will include proposed
Corps regional conditions developed by our district offices, and will
also request comments or suggestions for additional Corps regional
conditions or modifications to the proposed Corps regional conditions.
The public notices issued by the Districts may also include, for
informational purposes only, proposed conditions intended to meet the
specific requirements of Tribes, states, and EPA for the purposes of
obtaining WQC, and the specific requirements of states for obtaining
CZMA concurrence. The WQC and CZMA reviews are separate and independent
administrative review processes for the NWPs. Public comments on the
Tribal, state, or EPA WQC regional conditions or state CZMA regional
conditions as proposed by the districts should be sent directly to the
Tribe, state, or EPA, as appropriate. The public should not send
comments on proposed WQC/CZMA regional conditions to the Corps.
In response to the district's public notice, interested parties may
suggest additional Corps regional conditions or changes to Corps
regional conditions. They may also suggest suspension or
[[Page 35196]]
revocation of NWPs in certain geographic areas, such as specific
watersheds or waterbodies. Such comments should include data to support
the need for the suggested modifications, suspensions, or revocations
of NWPs.
After the NWPs are issued or reissued, the division engineer will
issue supplemental decision documents for each NWP in a specific region
(e.g., a state or Corps district). Each supplemental decision document
will evaluate the NWP on a regional basis (e.g., by Corps district
geographic area of responsibility or by state) and discuss the need for
NWP regional conditions for that NWP. Each supplemental decision
document will also include a statement by the division engineer, which
will certify that the NWP, with approved regional conditions, will
authorize only those activities that will have no more than minimal
individual and cumulative adverse environmental effects.
After the division engineer approves the Corps regional conditions,
each Corps district will issue a final public notice for the NWPs. The
final public notice will announce both the final Corps regional
conditions and any final WQC/CZMA regional conditions. The final public
notices will also announce the final status of water quality
certifications and CZMA consistency determinations for the NWPs. Corps
districts may adopt additional regional conditions after following
public notice and comment procedures, if they identify a need to add or
modify regional conditions. Information on regional conditions and the
suspension or revocation of one or more NWPs in a particular area can
be obtained from the appropriate district engineer.
In cases where a Corps district has issued a regional general
permit that authorizes similar activities as one or more NWPs, during
the regional conditioning process the district will clarify the use of
the regional general permit versus the NWP(s). For example, the
division engineer may revoke the applicable NWP(s) so that only the
regional general permit is available for use to authorize those
activities.
Water Quality Certification/Coastal Zone Management Act Consistency
Determination for Nationwide Permits
A Tribal, State, or EPA water quality certification, or waiver
thereof, is required by Section 401 of the Clean Water Act, for an
activity authorized by NWP which results in a discharge into waters of
the United States. In addition, any state with a federally-approved
CZMA program must concur with the Corps' determination that activities
authorized by NWPs which are within, or will have reasonably
foreseeable effects on any land or water uses or natural resources of
the state's coastal zone, are consistent with the CZMA program to the
maximum extent practicable. Water quality certifications and/or CZMA
consistency concurrences may be issued without conditions, issued with
conditions, or denied for specific NWPs.
We believe that, in general, the activities authorized by the NWPs
will not violate Tribal, state, or EPA water quality standards, other
provisions of Tribal/State law, and will be consistent with state CZMA
programs/enforceable policies. The NWPs are conditioned to ensure that
adverse environmental effects will be no more than minimal and address
the types of activities that would be routinely authorized if evaluated
under the individual permit process. We recognize that in some states
or Tribal lands there will be a need to add regional conditions, or
individual Tribal or State review for some activities, to ensure
compliance with water quality standards, other appropriate provisions
of Tribal/State law, and/or consistency with the state's CZMA programs.
As a practical matter, we intend to work with states and Tribes to
ensure that NWPs include the necessary conditions so that they can
issue water quality certifications or CZMA consistency concurrences.
Therefore, each Corps district will initiate discussions with their
respective Tribe(s), state(s), and regional offices of EPA, as
appropriate, to discuss issues of concern and identify regional
modifications and other approaches to address the scope of waters,
activities, discharges, and PCNs, as appropriate, to resolve these
issues.
Please note that in some states the Corps has issued state
programmatic general permits (SPGPs) or regional general permits
(RGPs), and within those states some or all of the NWPs may be
suspended or revoked by division engineers. Concurrent with today's
proposal, district engineers may be proposing suspension or revocation
of the NWPs in states where SPGPs or RGPs will be used in place of some
or all of the NWPs.
Section 401 of the Clean Water Act
This Federal Register notice serves as the Corps' application to
the Tribes, States, or EPA, where appropriate, for water quality
certification (WQC) of the activities authorized by these NWPs. The
Tribes, States, and EPA, where appropriate, are requested to issue,
deny, or waive water quality certification pursuant to 33 CFR 330.4(c)
for these NWPs.
If a state denies a WQC for an NWP within that state, then the
affected activities are not authorized by NWP within that state, until
a project proponent obtains an individual WQC for that activity, or a
waiver of WQC occurs. However, when applicants request verification of
NWP activities that require individual WQC, and the Corps determines
that those activities meet the terms and conditions of the NWP, the
Corps will issue provisional NWP verification letters. The provisional
verification letter will contain general and regional conditions as
well as any activity-specific conditions the Corps determines are
necessary for NWP authorization. The Corps will notify the applicant
that he or she must obtain an activity-specific WQC, or waiver thereof,
before he or she is authorized to start discharging dredged or fill
material into waters of the United States. That is, NWP authorization
will be contingent upon obtaining the necessary WQC or waiver thereof
from the Tribe, State, or EPA where appropriate. Anyone wanting to
perform such activities where pre-construction notification to the
Corps is not required has an affirmative responsibility to first obtain
an activity-specific WQC or waiver thereof from the Tribe, State, or
EPA before proceeding under the NWP. This requirement is provided at 33
CFR 330.4(c).
Section 307 of the Coastal Zone Management Act (CZMA)
This Federal Register notice serves as the Corps' determination
that the activities authorized by these NWPs are, to the maximum extent
practicable, consistent with state CZMA programs. This determination is
contingent upon the addition of state CZMA conditions and/or regional
conditions, or the issuance by the state of an individual consistency
concurrence, where necessary. States are requested to concur or object
to the consistency determination for these NWPs following 33 CFR
330.4(d).
The Corps' CZMA consistency determination only applies to NWP
authorizations for activities that are within, or affect, any land,
water uses or natural resources of a State's coastal zone. NWP
authorizations for activities that are not within or would not affect a
State's coastal zone do not require the Corps' CZMA consistency
determinations and thus are not contingent on a State's concurrence
with the Corps' consistency determinations.
[[Page 35197]]
If a state objects to the Corps' CZMA consistency determination for
an NWP, then the affected activities are not authorized by NWP within
that state, until a project proponent obtains an individual CZMA
consistency concurrence, or sufficient time (i.e., six months) passes
after requesting a CZMA consistency concurrence for the applicant to
make a presumption of consistency, as provided in 33 CFR 330.4(d)(6).
However, when applicants request NWP verifications for such activities,
and the Corps determines that those activities meet the terms and
conditions of the NWP, the Corps will issue provisional NWP
verification letters. The provisional verification letter will contain
general and regional conditions as well as any activity-specific
conditions the Corps determines are necessary for the NWP
authorization. The Corps will notify the applicant that he or she must
obtain an activity-specific CZMA consistency concurrence before he or
she is authorized to start work in waters of the United States. That
is, NWP authorization will be contingent upon obtaining the necessary
CZMA consistency concurrence from the State. Anyone wanting to perform
such activities where pre-construction notification to the Corps is not
required has an affirmative responsibility to present a CZMA
consistency certification to the appropriate State agency for
concurrence. Upon concurrence with such CZMA consistency certifications
by the state, the activity would be authorized by the NWP. This
requirement is provided at 33 CFR 330.4(d).
Nationwide Permit Verifications
Certain NWPs require the permittee to submit a PCN, and thus
request confirmation from the district engineer prior to commencing the
proposed work that an NWP activity complies with the terms and
conditions of an NWP. The requirement to submit a PCN is identified in
the NWP text, as well as certain general conditions. General condition
18 requires non-federal permittees to submit PCNs for any proposed
activity that might affect listed species or critical habitat, if
listed species or critical habitat are in the vicinity of the proposed
activity, or if the proposed activity is located in critical habitat.
General condition 20 requires non-federal permittees to submit PCNs for
any proposed activity that may have the potential to cause effects to
any historic properties listed in, determined to be eligible for
listing in, or potentially eligible for listing in, the National
Register of Historic Places.
In the PCN, the project proponent must specify which NWP or NWPs he
or she wants to use to provide the required Department of Army (DA)
authorization under section 404 of the Clean Water Act and/or section
10 of the Rivers and Harbors Act of 1899. For voluntary NWP
verification requests (where a PCN is not required), the request should
also identify the NWP(s) the project proponent wants to use. The
district engineer should verify the activity under those NWP(s), as
long as the proposed activity complies with all applicable terms and
conditions, including any applicable regional conditions imposed by the
division engineer. If the proposed activity does not qualify for NWP
authorization, the district engineer must exercise discretionary
authority and explain why the NWP or NWPs specified by the applicant
are not appropriate for authorizing the proposed activity.
Pre-construction notification requirements may be added to NWPs by
division engineers through regional conditions to require PCNs for
additional activities. For an activity where a PCN is not required, a
project proponent may submit a PCN voluntarily, if he or she wants
written confirmation that the activity is authorized by an NWP. Some
project proponents submit permit applications without specifying the
type of authorization they are seeking. In such cases, district
engineer will review those applications and determine if the proposed
activity qualifies for NWP authorization or another form of DA
authorization, such as a regional general permit (see 33 CFR 330.1(f)).
In response to a PCN or a voluntary NWP verification request, the
district engineer reviews the information submitted by the prospective
permittee. If the district engineer determines that the activity
complies with the terms and conditions of the NWP, he or she will
notify the permittee. Activity-specific conditions, such as
compensatory mitigation requirements, may be added to an NWP
authorization to ensure that the NWP activity results in only minimal
individual and cumulative adverse environmental effects. The activity-
specific conditions are incorporated into the NWP verification, along
with the NWP text and the NWP general conditions.
If the district engineer reviews the PCN or voluntary NWP
verification request and determines that the proposed activity does not
comply with the terms and conditions of an NWP, he or she will notify
the project proponent and provide instructions for applying for
authorization under a regional general permit or an individual permit.
District engineers will respond to NWP verification requests, submitted
voluntarily or as required through PCN, within 45 days of receiving a
complete PCN. Except for NWPs 21, 49, and 50, and for proposed NWP
activities that require Endangered Species Act Section 7 consultation
and/or National Historic Preservation Act section 106 consultation, if
the project proponent has not received a reply from the Corps within 45
days, he or she may assume that the project is authorized, consistent
with the information provided in the PCN. For NWPs 21, 49, and 50, and
for proposed NWP activities that require ESA Section 7 consultation
and/or NHPA Section 106 consultation, the project proponent may not
begin work before receiving a written NWP verification.
In the January 28, 2013, issue of the Federal Register (78 FR
5726), the Corps issued a final rule that amended the NWP regulations
to allow district engineers to issue NWP verification letters that are
in effect until the NWP expires, instead of two years. That rule took
effect on February 27, 2013. That final rule streamlines the
verification process for NWP activities.
Contact Information for Corps District Engineers
Contact information for Corps district engineers is available at
the following Web page: http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/RegulatoryContacts.aspx.
Request for Comment
We are proposing to reissue 50 nationwide permits, as well as the
general conditions and definitions. We are also proposing to issue two
new NWPs and one new general condition. Substantive changes to the
nationwide permits, general conditions, and definitions are discussed
below, but we are soliciting comments on all the nationwide permits,
general conditions, and definitions as well as all NWP application
procedures including the PCNs. Minor grammatical changes, the removal
of redundant language, and other small changes are not discussed in the
preamble below. Therefore, commenters should carefully read each
proposed NWP, general condition, and definition in this notice.
Discussion of Proposed Modifications to Existing Nationwide Permits
If an existing NWP is not listed in this section of the preamble,
we are proposing to reissue the NWP without changing the terms of the
NWP.
[[Page 35198]]
NWP 3. Maintenance. We are proposing to modify this NWP to state
that it also authorizes regulated activities associated with the
removal of previously authorized structures or fills. Individual
permits include a permit condition requiring modification of the permit
and the removal of the authorized structure or fill if the permittee
will no longer use it, and will not transfer the authorization and the
structures or fills to another party. (See general condition 2 of
appendix A to 33 CFR part 325.) General permits might not have a
similar condition, so we are proposing to modify this NWP to authorize
such removals. The proposed modification to NWP 3 would authorize the
removal of the previously authorized structure or fill in those cases
where authorization is required (e.g., work in section 10 waters).
We are also proposing to modify paragraph (c) of this NWP to
clarify that the use of temporary mats in jurisdictional waters and
wetlands is also authorized by this NWP, if those mats are used to
minimize impacts during regulated maintenance activities. After the
timber mats are used, they are removed and the affected areas are
returned to pre-construction elevations. This provision of NWP 3 would
only be necessary in circumstances where the Corps district has
determined that the use of such mats in jurisdictional waters and
wetlands requires DA authorization.
NWP 12. Utility Line Activities. We are proposing to modify the
``utility lines'' paragraph of this NWP to clarify that the NWP
authorizes discharges of dredged or fill material into waters of the
United States and structures or work in navigable waters of the United
States for crossings of those waters associated with the construction,
maintenance, or repair of utility lines. This change is intended to
clarify that NWP 12 does not authorize the construction, maintenance,
or repair of utility lines per se. The Corps only authorizes those
components of utility lines where the construction, maintenance, or
repair involves activities regulated under its jurisdictional
authorities (i.e., section 404 of the Clean Water Act and section 10 of
the Rivers and Harbors Act of 1899). Because of the proposed
modification, we are proposing to remove the text in this sentence that
referred to ``excavation, backfill, and bedding'' because those
activities are covered by the more precise reference to ``discharges of
dredged or fill material into waters of the United States.'' Some
excavation activities do not require section 404 authorization.
We are also proposing to modify the definition of ``utility line''
to make it clear that utility lines can also include lines, such as
optic cables, that communicate through the internet.
In response to a suggestion received during the period that the
2012 NWPs were in effect, we are proposing to add a paragraph to NWP 12
to authorize, to the extent that DA authorization is required,
discharges of dredged or fill material into section 404 waters, and
structures and work in section 10 waters, necessary to remediate
inadvertent returns of drilling muds (also known as ``frac-outs'') that
can occur during directional drilling operations to install utility
lines below jurisdictional waters and wetlands. An inadvertent return
takes place when drilling fluids are released through fractures in the
bedrock and flow to the surface, and possibly into a river, stream,
wetland, or other type of waterbody. The entity making the suggestion
expressed concerns about inconsistencies in how inadvertent returns are
managed when they occur. The entity also requested that NWP 12
authorize section 404 and section 10 activities that are necessary to
remediate inadvertent returns, instead of addressing the needed
remediation through enforcement actions. For NWP 12 activities where
there is the possibility of such inadvertent returns, district
engineers may add conditions to the NWP 12 verification requiring
activity-specific remediation plans to address these situations, should
they occur during the installation or maintenance of the utility line.
The fluids used for directional drilling operations consist of a
water-bentonite slurry. This water-bentonite mixture is not considered
a toxic or hazardous substance, but it can adversely affect aquatic
organisms if released into bodies of water. Because a frac-out releases
a drilling fluid and that fluid is not a material that can be
considered ``fill material'' under 33 CFR 323.2(e), the inadvertent
returns of these drilling muds is not regulated under section 404 of
the Clean Water Act. However, activities necessary to contain and clean
up these drilling fluids may require DA authorization (e.g., temporary
fills in waters of the United States, or fills to repair a fracture in
a stream bed). For the same reasons as the proposed modification to NWP
3, we are proposing to modify this NWP to state that the use of
temporary mats in jurisdictional waters and wetlands is also
authorized.
We are proposing to modify Note 1 to remove the requirement to send
a copy of the PCN to the National Ocean Service, because there is no
need to chart a utility in navigable waters of the United States unless
it is verified as being authorized by NWP 12. Corps districts will
still send copies of NWP 12 verifications, when utility lines are
installed in waters charted by the National Ocean Service.
In addition, we are proposing to add three new notes to this NWP.
The new proposed Note 2 explains that separate and distant crossings of
waters of the United States may qualify for separate NWP authorization,
consistent with past practices as codified in the NWP regulations
issued on November 22, 1991 (see 56 FR 59110) and the definition of
``single and complete linear project'' promulgated in the 2012 NWPs. In
the 1991 final rule, the Corps defined the term ``single and complete
project'' at 33 CFR 330.2(i). In the 2012 NWPs, we clarified the long-
standing practices associated with the 1991 final rule by providing
separate definitions for ``single and complete linear project'' and
``single and complete non-linear project'' (see 77 FR 10184 at 10290
and the associated preamble discussion in the February 21, 2012 issue
of the Federal Register.)
Proposed Note 2 also points prospective permittees to 33 CFR
330.6(d), which addresses the use of NWPs with individual permits,
where components of a larger overall project that have independent
utility might be eligible for NWP authorization while other components
might require an individual permit because not all crossings of waters
of the United States comply with the terms and conditions of the NWPs
or regional general permits. For utility lines, Sec. 330.6(d) applies
in cases where one or more crossings for a stand-alone utility line are
not eligible for NWP authorization, but the remaining crossings for the
utility line could satisfy the NWP terms and conditions. If one or more
separate and distant crossings of waters of the United States for a
stand-alone utility line do not qualify for authorization by NWP or a
regional general permit, and an individual permit is required to
authorize those crossings, then all the crossings necessary to
construct that stand-alone utility line would require an individual
permit. A stand-alone utility line is a utility line that has
independent utility and can be operated on its own to transport
materials or energy from a point of origin to a terminal point.
Section 330.6(d) requires an individual permit for all regulated
activities under the Clean Water Act and, if applicable, the Rivers and
Harbors Act of 1899, associated with a stand-alone utility line if one
or more crossings of waters of the United States
[[Page 35199]]
do not qualify for general permit authorization and requires an
individual permit. Other utility line segments that can operate
independently (i.e., other stand-alone utility lines) can be authorized
by NWP if all of the crossings of waters of the United States that
require DA authorization are eligible for NWPs, as long as the permit
decision document includes an impact analysis for the larger, overall
utility line project (see 33 CFR 330.6(d)(1)).
The second new note (proposed Note 3) references the regulation
(i.e., 33 CFR 322.5(i)) that specifies the minimum clearances required
for aerial electric power transmission lines crossing navigable waters
of the United States.
The third new note (proposed Note 5) states that NWP 12 authorizes
utility line maintenance and repair activities that do not qualify for
the Clean Water Act section 404(f)(1) exemption for maintenance of
currently serviceable structures.
NWP 13. Bank Stabilization. We are proposing to modify the first
paragraph of this NWP to clarify that it authorizes a wide variety of
bank stabilization measures. This NWP has never been limited to hard
structural measures, such as bulkheads and revetments, for bank
stabilization. This NWP can be used to authorize vegetative bank
stabilization techniques, including hybrid techniques that involve both
hard materials and vegetation components (e.g., bioengineering). For
example, a bank may be graded and plant materials installed to
stabilize portions of the bank, with rip rap placed at the bottom of
the bank for toe protection. Nationwide permit 13 was first issued in
1977; it has never specified any preference for particular approaches
to bank stabilization. This NWP has always had the flexibility to
authorize a variety of types of bank stabilization measures.
In addition, NWP 13 is used to authorize bank stabilization
activities in a variety of types of aquatic environments, such as open
coasts, sheltered coasts, rivers and streams, lakes, and other types of
waters. The appropriate approach for bank stabilization is dependent on
site conditions, and landowners and contractors may have preferences
for specific approaches. In addition, there can be a substantial amount
of variation in the effectiveness of a particular bank stabilization
technique across these different environments. Given that variability
and the need to consider site-specific conditions and practicability
when selecting an appropriate bank stabilization approach for a site,
we believe it is not appropriate to modify this NWP to require the use
of one technique to control bank erosion over other techniques.
We are proposing to modify paragraph (c) of this NWP to clarify
that the quantity of the dredged or fill material discharged into
waters of the United States must not exceed one cubic yard per running
foot below the plane of the ordinary high water mark or the high tide
line, as measured along the bank. Some bank stabilization techniques,
such as stream barbs, may involve fills that extend from the bank to
the streambed. Stream barbs are low rock sills that extend from a
stream bank to cross the thalweg of the stream. In other words, not all
discharges of dredged or fill material authorized by this NWP must be
placed along the bank if the bank stabilization method relies on other
fill configurations, and as long as discharges of dredged or fill
material into waters of the United States are minimized to the maximum
extent practicable.
As discussed below, we are proposing to issue a new NWP to
authorize nature-based bank stabilization techniques known as living
shorelines. We believe a separate NWP is appropriate to authorize
structures and work in navigable waters and discharges of dredged or
fill material into waters of the United States for the construction and
maintenance of living shorelines. Living shorelines are effective
primarily in sheltered, low- to mid- energy coasts (see the 2007
National Research Council Report entitled ``Mitigating Shore Erosion
along Sheltered Coasts''). In open coasts subject to higher energy
regimes such as stronger wave energies and greater erosive forces, hard
bank stabilization structures such as revetments and bulkheads or a
combination of hard structures and soft, nature-based structures (e.g.,
hybrid approaches described by the Systems Approach to Geomorphic
Engineering (SAGE) \2\) are more effective at protecting infrastructure
and buildings along those coasts. The proposed NWP for living
shorelines is intended to complement NWP 13 to provide general permit
authorization for these approaches to bank stabilization.
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\2\ http://sagecoast.org/
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Paragraph (a) of general condition 23 requires that NWP activities
avoid and minimize adverse effects to waters of the United States to
the maximum extent practicable on the project site (i.e., on-site).
Living shorelines involve filling fairly large areas of intertidal and
subtidal lands or lake shorelines. The placement of sand fills for
marsh plantings and the construction of stone sills and breakwaters
alter shoreline habitats and require consideration of trade-offs of
those habitat changes (NRC 2007). Bulkheads and other bank
stabilization structures can be constructed near to or landward of the
high tide line in estuarine waters, or near to or landward of the mean
high water line in lakes; thus resulting in much smaller fill areas in
waters of the United States or no fills in waters of the United States
if they constructed outside of the Corps' jurisdiction. Additionally,
we recognize that bulkheads have indirect effects on nearby
jurisdictional waters and wetlands and that living shorelines can
provide some important ecological functions and services. Another
factor is that there are trade-offs associated with every approach to
bank stabilization and those trade-offs are considered by landowners
when deciding which bank stabilization approach they will be proposing
if they need to obtain DA authorization. The Corps also evaluates these
trade-offs when evaluating all bank stabilization proposals.
We are soliciting comments on proposed changes to NWP 13 and the
proposed NWP B. We are trying to provide as much equitability as
possible between NWP 13 and the new, proposed NWP for living
shorelines, so that landowners can consider a variety of options. By
providing an efficient authorization option, landowners have incentive
to select an environmentally preferable bank stabilization option where
appropriate. A few of the terms in NWPs 13 and proposed NWP B are
similar. There are different PCN thresholds because living shorelines
require substantial amounts of fill material, while bank stabilization
methods authorized by NWP 13 involving small amounts of fill to be
discharged into waters of the United States, or no discharges into
special aquatic sites such as tidal wetlands and vegetated shallows, do
not require PCNs.
Another factor is that the Corps' regulations have long recognized
that landowners have a general right to protect their property from
erosion (see 33 CFR 320.4(g)(2)). The Corps evaluates the potential for
the proposed erosion protection measures to cause damage to other
landowners' property, adversely affect public health and safety,
adversely impact wetland values, and the Corps can inform the applicant
about possible alternative methods of bank stabilization. However, that
section of our regulations also states that the Corps' advice will be
given only as general guidance, and must not compete with private
consulting firms. In other
[[Page 35200]]
words, the Corps cannot mandate a specific approach to bank
stabilization. Consideration must also be given to the availability of
consultants and contractors qualified to design and build living
shorelines. Many landowners prefer bulkheads and revetments because
well-constructed bulkheads last approximately 20 years and revetments
can last up to 50 years (NRC 2007).
As discussed elsewhere in this notice, we are proposing to develop
a standard form for use in submitting PCNs. The proposed PCN form will
include two questions for PCNs involving bank stabilization activities.
The first question will ask whether the applicant has considered the
use of living shorelines, if he or she is submitting a PCN for a bank
stabilization activity. The second question will ask if there are
consultants and contractors in the area that are qualified to design
and construct living shorelines. We will also modify our automated
information system to track the responses to those questions. We will
use the responses to those questions during evaluations of the use of
NWPs 13 and B. The Corps solicits comments on the suitability on those
questions and whether other questions should be included on the form.
NWP 14. Linear Transportation Projects. We are proposing to add a
note to this NWP similar to proposed Note 2 in NWP 12 to explain that
separate and distant crossings of waters of the United States for
linear projects may qualify for separate authorization by NWP. Similar
to proposed Note 2 in NWP 12, the proposed Note 1 for NWP 14 references
33 CFR 330.6(d) because linear transportation projects also have to
comply with the requirements of Sec. 330.6(d). Linear transportation
projects can have segments that can operate as stand-alone roads or
other types of linear transportation projects. NWP 14 can authorize
those segments with independent utility where each separate and distant
crossing of waters of the United States qualifies for NWP
authorization. If one or more separate and distant crossings of waters
of the United States for a stand-alone linear transportation project
does not qualify for authorization by NWP or a regional general permit,
and an individual permit is required to authorize the crossings, then
all the crossings necessary to construct that stand-alone linear
transportation project would require an individual permit. Section
330.6(d) requires an individual permit for all regulated activities
under the Clean Water Act and, if applicable, the Rivers and Harbors
Act of 1899, associated with a stand-alone linear transportation
projects if one or more crossings of waters of the United States do not
qualify for general permit authorization and requires an individual
permit. Other linear transportation project segments that can operate
independently (i.e., other stand-alone linear transportation projects)
can be authorized by NWP if all of the crossings of waters of the
United States that require DA authorization are eligible for NWPs, as
long as the permit decision document includes an impact analysis for
the larger, overall linear transportation project (see 33 CFR
330.6(d)(1)).
NWP 19. Minor Dredging. We are proposing to add a sentence
requiring the dredged material to be deposited and retained at an area
that has no waters of the United States, unless the district engineer
specifically authorizes the placement of that dredged material into
jurisdictional waters and wetlands through a separate authorization.
The new sentence is intended to provide consistency with the NWPs that
authorize dredging or similar activities, where the dredged or
excavated material requires disposal. The NWPs that currently have that
provision are: NWP 31, which authorizes the maintenance of existing
flood control facilities, NWP 36 which authorizes boat ramps, and
paragraph (b) of NWP 3, which authorizes the removal of accumulated
sediments from the vicinity of existing structures. To protect
jurisdictional waters and wetlands, dredged or excavated material
should be deposited in uplands or other areas not subject to the Corps'
jurisdiction, unless the district engineer issues a separate
authorization to allow that dredged material to be placed in waters of
the United States for a specific use, such as substrate for marsh
reestablishment.
NWP 21. Surface Coal Mining Activities. We are proposing to remove
paragraph (a) that was in the 2012 NWP 21. The proposed NWP consists of
paragraph (b) of the 2012 NWP 21, with a \1/2\-acre limit for losses of
non-tidal waters of the United States, a 300 linear foot limit for
losses of stream bed, and a prohibition against discharges of dredged
or fill material into waters of the United States for the construction
of valley fills.
As discussed in the February 21, 2012, Federal Register notice (77
FR 10184 at 10212), paragraph (a) of the 2012 NWP 21 was intended to
``provide an equitable transition to the new limits in NWP 21 and
reduce burdens on the regulated public.'' In that final rule, we also
stated that if surface coal mining activities previously authorized by
NWP 21 could not be completed before the 2012 NWP 21 expires, or within
one year of that expiration date if the activity qualifies for the
grandfathering provision at 33 CFR 330.6(b), then the project proponent
would have to obtain an individual permit or, if available, a regional
general permit authorization to complete the surface coal mining
activities in waters of the United States (see 77 FR 10184 at 10209-
10210).
NWP 32. Completed Enforcement Actions. We are proposing to modify
paragraph (i)(a) of this NWP to clarify that the 5 acre and 1 acre
limits apply to the areas adversely affected by the activities that
remain after resolution has been achieved. These would be the net
adverse effects after any required restoration was conducted to reach
resolution.
NWP 33. Temporary Construction, Access, and Dewatering. We are
proposing to modify this NWP to change the PCN threshold to require
notification only for temporary construction, access, and dewatering
activities in navigable waters of the United States. In the 2007 NWPs,
we modified NWPs 3, 12, and 14 to authorize temporary structures,
fills, and work in jurisdictional waters and wetlands to complete the
authorized NWP activity. In the 2012 NWPs we added similar language to
NWP 13. While those four NWPs require PCNs for certain activities, when
we modified those NWPs we did not add PCN requirements specifically for
temporary structures, fills, and work associated with conducting the
activities authorized by those NWPs. Based on our experience with those
four NWPs and to provide more efficiency in the NWP Program, we believe
that it is no longer necessary to require PCNs for NWP 33 activities in
section 404-only waters. We are proposing to continue to require PCNs
for all NWP 33 activities in section 10 waters, to ensure that each of
those activities are reviewed by district engineers on a case-by-case
basis to protect navigation and other relevant public interest review
factors. Division engineers can add regional conditions to this NWP to
require PCNs for temporary construction, access, and dewatering
activities in section 404-only waters.
Pre-construction notification will still be required for proposed
activities in section 404-only waters that will be conducted by non-
federal permittees, when those activities trigger the notification
requirements of general condition 18, endangered species, and general
condition 20, historic properties. See paragraph (c) of general
condition 18 and paragraph (c) of general condition 20.
[[Page 35201]]
NWP 35. Maintenance Dredging of Existing Basins. We are proposing
to modify this NWP to state that all dredged material must be placed in
an area that has no waters of the United States, unless placement of
the dredged material into waters of the United States is authorized by
a separate DA authorization. The proposed change is intended to provide
consistency with the proposed changes to NWP 19 and the text of other
NWPs that authorize dredging or excavation activities. There may be
some situations where disposal of the dredged material into waters of
the United States is acceptable, such as using the dredged material for
marsh establishment or re-establishment. The district engineer will
authorize that disposal into waters of the United States through a
separate DA authorization, such as another NWP, a regional general
permit, or an individual permit. Please see the rationale provided
above in the preamble discussion of the proposed changes to NWP 19.
NWP 39. Commercial and Institutional Developments. We are proposing
to modify this NWP to clarify that it authorizes discharges of dredged
or fill material into waters of the United States to construct
wastewater treatment facilities. Wastewater treatment facilities are
attendant features for commercial, industrial, and institutional
facilities to hold and treat wastewater. Wastewater treatment
facilities are excluded from Clean Water Act jurisdiction (see 33 CFR
328.3(b)(1)) and do not require Clean Water Act Section 404
authorization to maintain those facilities. Applicants should be aware
that, consistent with current policy, designation of a portion of
waters of the United States as a waste treatment system does not alter
CWA jurisdiction over any waters upstream and/or adjacent to such
system.
NWP 40. Agricultural Activities. We are not proposing any changes
to this NWP. As discussed below, we are seeking comment on whether any
clarifications are need for this NWP. Discharges of dredged or fill
material into waters of the United States for normal farming,
silviculture and ranching activities such as plowing, seeding,
cultivating, minor drainage, and harvesting for the production of food,
fiber, and forest products, or upland soil and water conservation
practices are exempt from the requirement to obtain Clean Water Act
section 404 authorization, except when those activities trigger the
recapture provision of Clean Water Act section 404(f)(2). Normal
farming, silviculture and ranching activities that trigger the
recapture provision of section 404(f)(2) can be authorized by
individual or general permits. This NWP authorizes a variety of
agricultural activities that involve discharges of dredged or fill
material into waters of the United States, as long as those activities
comply with the terms and conditions of this NWP, including the \1/2\-
acre limit for losses of waters of the United States, and result in no
more than minimal individual and cumulative adverse environmental
effects. Nationwide permit 40 can be used to authorize discharges of
dredged or fill material into waters of the United States associated
with blueberry production. We are soliciting comment on whether any
further clarification of NWP 40 is necessary.
NWP 41. Reshaping Existing Drainage Ditches. We are soliciting
comment on clarifications or changes to NWP 41 that might encourage
more landowners to reshape their drainage ditches to help improve local
water quality, including suggestions for text to clarify the NWP for
circumstances where original configuration information is not
available. To facilitate the reshaping of drainage ditches to improve
water quality, we are also proposing to remove the requirement to
submit a PCN if more than 500 linear feet of ditch is to be reshaped.
This NWP was first issued in 2000 (65 FR 12818 at 12854, March 9,
2000). The intent of this NWP is to authorize the maintenance of
drainage ditches that were constructed in waters of the United States
in a manner that benefits the aquatic environment. This NWP authorizes
changes to the ditch cross section by creating gentler slopes so that
there is greater interaction between water in the ditch and soil and
vegetation to facilitate the removal of sediment, nutrients, and
chemicals from that water. However, this NWP does not authorize
reshaping ditches so that they drain larger areas than the original
ditch was designed to drain. In other words, this NWP allows the
configuration of the ditch to be changed to improve water quality, but
not increase the original geographic area drained by the ditch.
Determining the original drainage area of a ditch can be accomplished
by reviewing records, obtaining technical advice from consultants, or
other sources of information. When evaluating compliance with this NWP,
Corps district staff will use their judgment, based on such
information, to determine whether the activity is in compliance with
the requirement not to increase the original drainage capacity of the
ditch.
We are soliciting comment on clarifications or changes to NWP 41
that might encourage more landowners to reshape their drainage ditches
to help improve local water quality, including suggestions for text to
clarify the NWP for circumstances where original configuration
information is not available. To facilitate the reshaping of drainage
ditches to improve water quality, we are also proposing to remove the
requirement to submit a PCN if more than 500 linear feet of ditch is to
be reshaped and are soliciting comment on that change.
NWP 43. Stormwater Management Facilities. We are proposing to
modify the sentence that states that the maintenance of stormwater
management facilities that are determined to be waste treatment systems
under 33 CFR 328.3(a)(8) generally does not require a section 404
permit. That provision in the Corps' regulations refers to the waste
treatment exclusion in the 1986 definition of ``waters of the United
States,'' which appears in the last paragraph of Sec. 328.3(a) in the
1986 final rule (see 51 FR 41250). We are proposing to change the
reference to 33 CFR 328.3(a)(8) that was in the text of the 2012 NWP 43
to ``33 CFR 328.3(b)(6)'' because under the 2015 final rule amending
the definition of ``waters of the United States'' that exclusion
applies to ``[s]tormwater control features constructed to convey,
treat, or stormwater that are created in dry land'' We are proposing to
remove the word ``generally'' from this sentence, because under the
2015 final rule defining ``waters of the United States,'' there are no
exceptions to the exclusions in 33 CFR 328.3(b) (see the first sentence
of Sec. 328.3(b)).
NWP 44. Mining Activities. We are proposing changes to the terms of
this NWP to clarify the application of the \1/2\-acre limit for losses
of waters of the United States. The mining activities authorized by
this NWP often involve impacts to open waters, such as the mining of
sand and gravel from large rivers. Paragraph (a) of the proposed
modification states that the loss of non-tidal wetlands cannot exceed
\1/2\-acre. Paragraph (b) states that the mined area in open non-tidal
waters cannot exceed \1/2\-acre. Paragraph (c) limits the total impacts
under paragraphs (a) and (b) to \1/2\-acre. In other words, if the
proposed mining activity involves discharges of dredged or fill
material into both vegetated non-tidal wetlands and open waters, the
acreage loss of non-tidal wetlands plus the acreage of open waters
excavated (or dredged, if the mining activity occurs in non-tidal
navigable waters of the United States) cannot exceed \1/2\-acre. This
modification will provide further assurance that this NWP will only
[[Page 35202]]
authorize activities with no more than minimal individual and
cumulative adverse environmental effects. This NWP also limits the loss
of stream bed to 300 linear feet, unless for intermittent and ephemeral
streams the district engineer issues a waiver after coordinating with
the agencies and making a written determination that the proposed
activity will result in no more than minimal adverse environmental
effects. The loss of non-tidal waters of the United States, plus the
loss of stream bed, cannot exceed \1/2\-acre.
NWP 45. Repair of Uplands Damaged by Discrete Events. To provide
flexibility in the use of this NWP after major flood events or other
natural disasters, we are proposing to modify the PCN requirement to
allow district engineers to waive the 12-month deadline for submitting
PCNs. The district engineer can waive the 12-month deadline if the
prospective permittee can demonstrate funding, contract, or similar
delays. Such delays can occur after major storm events if the entities
responsible for making decisions regarding disbursement of funds or
issuing contracts are short-staffed or receive more requests than can
be handled in a timely manner.
NWP 48. Commercial Shellfish Aquaculture Activities. We are
proposing to modify this NWP to clarify that it authorizes new and
continuing commercial shellfish aquaculture operations in authorized
project areas. We are proposing to define the project area as the area
in which the operator is authorized to conduct commercial shellfish
aquaculture activities during the period the NWP is in effect. Those
areas can be identified through leases or permits issued by an
appropriate state or local government agency, a treaty, or any other
easement, lease, deed, contract, or other legally-binding agreement
which establishes an enforceable property interest for an operator.
Legally-binding agreements can include agreements between operators to
conduct shellfish aquaculture on various parcels within project areas
in which they have the requisite interests. The proposed changes
recognize that in some areas of the country, state or local
authorizations are not required for commercial shellfish aquaculture
activities if the subtidal or intertidal lands are privately owned. In
addition, we are proposing to define a ``new commercial shellfish
aquaculture operation'' as an operation in a project area where
commercial shellfish aquaculture activities have not been conducted
during the past 100 years.
In addition, we are proposing changes to this NWP to do a better
job of taking into account the dynamic nature of commercial shellfish
aquaculture activities and to further streamline the authorization
process. During the effective period of this NWP, an operator may
change the species cultivated in the project area. An operator may also
utilize only certain areas in the project area, and allow other areas
within the project area to be fallow. If a PCN is required for the
commercial shellfish aquaculture activity, either because of the PCN
thresholds in the text of the NWP, the requirements of general
condition 18, or other general conditions or regional conditions, a PCN
only needs to be submitted once during the period this NWP is in
effect. The one-time PCN would identify the species expected to be
cultivated during the period the 2017 NWP 48 is in effect, and identify
the entire project area, including active and fallow areas. If
unanticipated changes to the commercial shellfish operation need to
occur during this period, and those changes involve activities
regulated by the Corps, the operator should contact the Corps district
to request a modification of the NWP verification, instead of
submitting another PCN.
For the purposes of NWP 48, the project area is not limited to
those areas where active commercial shellfish activities are presently
occurring. The project area includes all areas in which the operator is
authorized to conduct commercial shellfish aquaculture activities, as
identified through a lease or permit issued by an appropriate state or
local government agency, a treaty, or any other easement, lease, deed,
contract, or other legally-binding agreement which establishes an
enforceable property interest for the operator. The project area also
includes fallow areas, as long as the fallow areas are included in the
areas identified in the lease, permit, or other applicable document or
agreement.
The information in a PCN must describe, in general terms, the
expected plan of operation for the commercial shellfish aquaculture
activity during the period this NWP is in effect. The PCN must list the
species expected to be cultivated during the time frame the 2017 NWP 48
authorization is in effect, as well as the area(s) expected to be used
for cultivation during that period.
We are also proposing to modify the pre-construction notification
requirements for this NWP. We are proposing to remove the PCN
requirement for dredge harvesting, tilling, or harrowing conducted in
areas inhabited by submerged aquatic vegetation. We are proposing this
modification because of the recognition in numerous studies and reports
that have shown that vigorous populations of shellfish and submerged
aquatic vegetation can coexist in coastal waters (e.g., Dumbauld and
McCoy 2015; Tallis et al. 2009) In addition, both submerged aquatic
vegetation beds and oyster beds provide habitat for a wide variety of
fish and invertebrate species (Hosack et al. 2006). The presence of
submerged aquatic vegetation should not prevent the use of NWP 48 to
authorize commercial shellfish aquaculture activities because available
evidence indicates that both shellfish and submerged aquatic vegetation
sustain vibrant populations in the same waterbody. If the commercial
shellfish aquaculture activity might affect listed species or critical
habitat, then a PCN is required under general condition 18, and the
Corps will evaluate effects to submerged aquatic vegetation caused by
the commercial shellfish aquaculture activity. For those on-going
commercial shellfish aquaculture activities that are covered by a
currently valid programmatic biological opinion, programmatic informal
consultation concurrence, or activity-specific biological opinion or
informal consultation concurrence, the PCN should be expeditiously
reviewed by the district engineer.
We are also proposing to remove the notification requirement for
changing from bottom culture to floating or suspended culture, because
general condition 1 provides sufficient assurance that these activities
will have no more than minimal adverse effects on navigation. A third
modification to the PCN thresholds is to require PCNs for commercial
shellfish aquaculture activities that will include species that have
never been cultivated in the waterbody, instead of species that have
not ``previously'' been cultivated in that waterbody. We believe the
word ``never'' provides more clarity than the word ``previously.'' A
fourth modification to the PCN requirements is to require PCNs for
commercial shellfish aquaculture activities proposed for areas that
have not been used for those activities for the past 100 years,
consistent with our proposed definition of ``new commercial shellfish
aquaculture operations.''
For NWP 48 activities that require PCNs, either because of the
terms of NWP 48 or the requirements of general condition 18 or other
general or regional conditions, we are proposing to require the PCN to
identify all the species that the operator plans to cultivate during
the period this NWP is in effect. We are
[[Page 35203]]
also proposing to require PCNs to state whether suspended cultivation
techniques will be used, as well as information on the general water
depths in the project area. A detailed survey of water depths is not
required for a PCN.
During the implementation of NWP 48, questions have been raised
about the accumulation of sediment in tidal waterbodies where long
lines slow water flows so that suspended sediments fall out of the
water column, and whether that sediment accumulation is a regulated
activity under section 404 of the Clean Water Act. Long lines are used
in commercial shellfish aquaculture to grow oysters in the water
column, as an alternative to bottom culture. Sediment accretion caused
by long lines is not a discharge of dredged or fill material and is not
regulated under section 404 of the Clean Water Act because the sediment
accumulation is an indirect effect of the use of long lines. Section
404 of the Clean Water Act requires permits for point sources
discharging dredged or fill material into waters of the United States,
unless those activities are exempt from the requirement to obtain
section 404 authorization. Sediment accretion caused by long lines is
dispersed throughout the area those long lines are used, and there is
no point source. With long lines, there is not a point source
discharging dredged or fill material into waters of the United States.
NWP 51. Land-Based Renewable Energy Generation Facilities. We are
proposing to split Note 1 of the 2012 NWP 51 into two notes. Note 1
explains that utility lines constructed to transfer energy from the
land-based renewable energy generation facility to a distribution
system, regional grid, or other facility are general considered to be
linear projects. Proposed Note 2 states that if the only activities
that require DA authorization are utility line crossings or road
crossings, those activities should be authorized by NWPs 12 and 14,
respectively, if they satisfy the terms and conditions of those NWPs.
Based on comments and questions from stakeholders, we are seeking
comment on changing the PCN threshold in this NWP, which currently
requires PCNs for all authorized activities. We are soliciting comment
on whether changing the PCN threshold so that some NWP 51 activities
can proceed without pre-construction notification would streamline the
authorization process for regulated activities associated with land-
based renewable energy generation facilities while still ensuring that
these activities have no more than minimal adverse environmental
impacts. Comments should provide a recommended PCN threshold, such as
losses of waters of the United States in excess of \1/10\-acre or \1/
4\-acre. Pre-construction notification would still be required for all
activities that trigger the PCN requirements in general condition 18,
endangered species, and general condition 20, historic properties.
NWP 52. Water-Based Renewable Energy Generation Pilot Projects.
During the period the 2012 NWPs have been in effect, we received a
suggestion that this NWP also authorize floating solar energy
generation facilities.
In response to that suggestion, we are proposing to modify this NWP
to include floating solar energy generation projects in navigable
waters of the United States. A single water-based solar renewable
energy unit can occupy a substantial area of navigable waters. We are
proposing to limit the surface area of navigable waters covered by
floating solar energy generation facilities to \1/2\-acre, but are
seeking comment on whether a different limit would be more appropriate
for such projects. The current 10-unit limit for water-based wind
turbines and hydrokinetic generation units does not seem practical for
floating solar generation facilities and for ensuring that adverse
effects to navigation and other public interest review factors due to
floating solar energy facilities are no more than minimal, individually
and cumulatively.
Please note that floating water-based solar energy generation
facilities installed in open waters subject only to Clean Water Act
section 404 jurisdiction do not require DA authorization unless there
is an associated discharge of dredged or fill material into waters of
the United States. Water-based solar energy generation facilities are
structures floating on the water surface, and structures in section
404-only waters that do not involve discharges of dredged or fill
material do not require DA authorization.
On December 22, 2014, the Corps issued guidance clarifying the
circumstances when hydrokinetic projects that require authorization
from the Federal Energy Regulatory Commission (FERC) or DA
authorization under Sections 9 and 10 of the Rivers and Harbors Act of
1899. That guidance concluded that hydrokinetic projects authorized by
FERC under the Federal Power Act of 1920 do not require DA
authorization under sections 9 or 10 of the Rivers and Harbors Act of
1899. Therefore, NWP 52 would only be used to authorize hydrokinetic
projects in navigable waters that do not require FERC authorization.
Nationwide permit 52 can be used to authorize water-based renewable
energy generation facilities on the outer continental shelf, if those
generation facilities require authorization under section 10 of the
Rivers and Harbors Act of 1899. Section 4(f) of the Outer Continental
Shelf Lands Act of 1953, as amended (43 U.S.C. 1333(e)) extended the
Corps' section 10 authority over installations, artificial islands, and
structures on the outer continental shelf (see 33 CFR 320.2(b) and
322.3(b)).
We are requesting comments on modifying this NWP to remove the
terms that limited the 2012 NWP 52 to pilot projects. We are also
seeking comment on limits of the number of permanent water-based
renewable energy generation units that could authorized by this NWP, if
the pilot project limitation is removed in the final NWP. As discussed
above, we are also soliciting comment on acreage limits for water-based
solar renewable energy generation projects.
Discussion of Proposed New Nationwide Permits
During the period the 2012 NWPs were in effect, the Corps received
a number of suggestions for changes to the NWPs, general conditions,
and definitions. Suggested modifications of existing NWPs, general
conditions, and definitions are discussed above. In response to those
suggestions, we are proposing to issue two new NWPs to authorize two
categories of activities: The removal of low-head dams and the
construction and maintenance of living shorelines. Some low-head dam
removals might have been authorized by NWP 27, if those dams were small
dams located in headwater streams. However, most low-dam removal
requires individual permit authorization because it is not covered by
an NWP or regional general permit. The proposed NWP will facilitate the
removal of low-head dams that are no longer being used for their
intended purposes or are too costly to repair. The removal of low-head
dams restores ecological processes in rivers and streams and enhances
public safety.
We are also proposing to issue a new NWP that authorizes the
construction and maintenance of living shorelines. Many living
shorelines require individual permit authorization, and some Corps
districts have issued regional general permits to authorize different
types of living shorelines. The proposed NWP will provide general
permit authorization for the construction and maintenance of living
shorelines, which will give landowners
[[Page 35204]]
a choice in how they can protect their property under erosion
mitigation measures authorized by NWP. Bank stabilization activities
are authorized by NWP 13 and if the proposed new NWP is issued, it will
provide a similar streamlined authorization process as NWP 13. Both of
these NWPs will result in decreased processing times and permit
application costs associated with obtaining authorization under Section
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act
of 1899.
Proposed NWP A. Removal of Low-Head Dams
We are proposing to issue a new NWP to authorize structures and
work in navigable waters of the United States, as well as associated
discharges of dredged or fill material into waters of the United
States, for the removal of low-head dams. One objective for removing
such dams would be to restore rivers and streams by removing barriers
that adversely affect ecological processes. Another objective would be
to facilitate removal of these dams to enhance public safety because
many low-head dams are old and poorly maintained, and are potential
safety hazards. The proposed NWP will authorize activities that restore
rivers and streams, and improve public safety. As discussed below, low-
head and other types of dams cause substantial disruption and
degradation of the ecological functions performed by rivers and
streams. Low-head dams also pose hazards to swimmers and paddlers. The
proposed NWP would only authorize the removal of low-head dams. If the
landowner or other entity wants to construct a replacement or new dam,
he or she would have to obtain a separate Department of the Army
authorization to construct a replacement or new dam into waters of the
United States.
A large number of low-head or run-of-the river dams were
constructed in the United States during the past few centuries to
increase water levels to provide water for towns and cities, and
industries, as well as power (Tschantz and Wright 2011). Many of those
dams were built in the 19th century, and are deteriorating or have been
abandoned (Tschantz and Wright 2011). Many of these dams, especially
the older dams, no longer serve an economic purpose (Born et al. 1998,
Shuman 1995) and are in need of repair or replacement to comply with
modern dam safety standards. Low-head dams present a safety hazard, and
have been linked to hundreds of deaths since the 1960s (Tschantz 2014).
Graf (1993) estimates there are more than 2,000,000 small dams in
the United States, and many of these small dams are low-head dams. Many
of these dams need to be replaced or repaired, and the replacement or
repair costs are likely to be prohibitive for 90 percent of the dam
owners (Shuman 1995). Dam removal may be the only practical economic
alternative for protecting public safety and preventing economic losses
if they cannot be repaired or replaced. There is also increasing
interest in removing these dams to restore rivers and streams, and the
ecological functions and services they provide (Born et al. 1998).
There is also interest in removing these dams to protect public safety.
Dams cause a number of adverse effects on rivers and streams, such
altering river and stream hydrology, altering sediment transport
through the riverine network, changing flooding regimes, fragmenting
river and stream habitats, and blocking corridors for movement of fish
and other aquatic organisms (Stanley and Doyle 2003, Poff and Hart
2002). Dams also modify nutrient cycling processes in rivers and
streams, change water temperatures, and alter the functioning of
aquatic and riparian habitats (Poff and Hart 2002). Dams change the
communities of aquatic organisms from riverine species that inhabit
free-flowing waters to lacustrine species that prefer to live in lakes
(Born et al. 1998). Dam removal helps reverse many of these adverse
effects, and restore ecological functions performed by rivers and
streams and their riparian habitats (O'Connor et al. 2015, Stanley and
Doyle 2003, Gregory et al. 2002, Bednarek 2001)
Dams can be classified in a number of ways. One approach to
classifying dams is an operational or functional definition: Run-of-the
river dams versus storage dams (Poff and Hart 2002). Run-of-the river
dams have small hydraulic heads and storage volumes, short residence
times, and there is little or no control of the rates at which water is
released from the dams (Poff and Hart 2002) because the water is
allowed to flow over the dam structure (Csiki and Rhoads 2014). Storage
dams have large hydraulic heads and storage volumes, long hydraulic
residence times, and there is control over water releases from the dams
(Poff and Hart 2002).
Another approach is to classify dams as large or small, based on
designated thresholds of dam height and storage capacity. For example,
the National Inventory of Dams considers large dams as having high
hazard potential or dams with low hazard potential that are either (1)
more than 7.6 meters (25 feet) tall with a storage capacity more than
18,500 cubic meters (653,000 cubic feet), or (2) more than 1.8 meters
(6 feet) tall with a storage capacity greater than 61,700 cubic meters
(2,367,000 cubic feet) (Poff and Hart 2002). Dams classified these
three ways listed above can vary considerably in size (Poff and Hart
2002). Dams may be considered ``small'' if they do not meet or exceed
the criteria for large dams under the National Inventory of Dams (e.g.,
Fencl et al. 2015, Stanley et al. 2002). Dam height is not a good
indicator of the storage capacity of a dam because the storage capacity
also depends on the shapes of the stream channel and the valley in
which the stream is located, and the lateral extent of the dam
structure.
The National Inventory of Dams is a congressionally authorized
automated information system that catalogues dams in the United States
and its territories. The current National Inventory of Dams was
published in 2013, and it includes information on 87,000 dams that are
more than 25 feet high, can store more than 50 acre-feet of water, or
are considered a significant hazard if they were to fail. The National
Inventory of Dams is maintained and published by the Corps along with
the Association of State Dam Safety Officials, the states and
territories, and Federal agencies that regulate dams. Additional
information on the National Inventory of Dams is available at: http://www.agc.army.mil/Media/FactSheets/FactSheetArticleView/tabid/11913/Article/480923/national-inventory-of-dams.aspx (accessed April 6,
2016).
Run-of-the river dams usually are not higher than the channel banks
of the rivers and streams in which they are located (Csiki and Rhoads
2014). Low-head dams are considered run-of-the-river dams (Tschantz and
Wright 2011). Tschantz and Wright (2011) define low-head dams as dams
that pass water over the entire dam structure, and were constructed to
raise the water level and provide a source of water for industry,
municipal water supply, irrigation, recreation, and to protect utility
lines. Low-head dams pass peak flows and are unlikely to hold fine
sediment or alter downstream water flows (Poff and Hart 2002, Csiki and
Rhoads 2014). They have little effect on downstream hydrologic regimes
(Doyle et al. 2005).
For the purposes of this NWP, we are proposing to define a ``low-
head dam'' as ``a dam built across a stream to pass flows from upstream
over the entire width of the dam crest on an uncontrolled basis.'' For
this NWP, we are proposing to adapt the definition of ``low-head'' dam
from Tschantz and Wright (2011) because dams that meet
[[Page 35205]]
that definition store low volumes of sediment, and therefore sediment
releases during low-head dam removal will be more likely to be small
and result in no more than minimal adverse environmental effects.
Sediment releases from dam removal are less of a problem for low-head
dams and dams in wide valleys, because there is not much sediment
stored behind those dams (Gregory et al. 2002). During high flows,
sediment from the impounded area upstream of the low-head dam is
transported over the dam structure, thus preventing the impoundment
from filling with sediment (Fencl et al. 2015, Csiki and Rhoads 2014).
Because low-head dams do not store large amounts of sediment and low-
head dams continue to allow sediment transport through the impoundment,
they are not likely to be storing contaminants at levels greater than
the levels of contaminants transported along the stream network through
normal runoff and sediment transport processes (Poff and Hart 2002).
Contaminants usually adhere to fine sediments (i.e., silts, clays) that
are more readily transported through the stream network in the
suspended sediment load. Low-head dams continue to allow that sediment
transport to continue because the water that passes over the crest of
the low-head dam carries those fine sediments in suspension. Csiki and
Rhoads (2014) found that sediments stored in run-of-the-river dams turn
over rapidly because they are regularly flushed out of the impoundment
during high flow events. Therefore, low-head dams are likely to be
storing little sediment laden with contaminants.
We are soliciting comment on alternative approaches to defining
``low-head dams'' for the purposes of this NWP. Alternative approaches
may define low-head dams in terms of maximum dam heights or reservoir
volumes. Commenters suggesting other definitions of low-head dams for
use with this NWP should explain how their recommended definitions will
be more effective than the proposed definition in helping ensure that
NWP A only authorizes those low-head dam removals that result in no
more than minimal individual and cumulative adverse environmental
effects. Those recommendations should cite scientific studies or
reviews in support of those suggested definitions.
Recent reviews and studies have shown that rivers and streams
recover quickly after dam removal (e.g., O'Connor et al. 2015, Lovett
2014, Doyle et al. 2005, Stanley et al. 2002). The rate of recovery is
dependent on dam size, river size, river channel shape, sediment
volume, and sediment grain size (O'Connor et al. 2015). Sediment
released as a result of dam removal are redistributed throughout the
downstream segments within months (O'Connor et al. 2015). Different
groups of aquatic organisms recover at different rates following dam
removal (Doyle et al. 2005, Stanley and Doyle 2003). Dam removal should
be viewed in the trade-offs that occur (Stanley and Doyle 2003). There
are substantial long-term beneficial ecological outcomes from dam
removal (e.g., restored river flows, habitat connectivity, temperature
regimes, sediment transport, and migration corridors) and some short-
term adverse effects (e.g., sediment releases, increased turbidity, and
the potential release of contaminated sediments) (Bednarek 2001).
The proposed NWP will also facilitate the removal of old,
deteriorating low-head dams that present threats to public safety. Low-
head dams are hazardous to kayakers, canoeists, and others that engage
in water-borne recreational activities and try to cross the crests of
these dams. These dams can create a reverse roller wave at the base of
the downstream side of the dam, and cause fatalities through drowning.
The release of sediments from dams, either through their operation
or the removal of dam structures, may or may not result in a discharge
of dredged or fill material, as those terms are defined at 33 CFR
323.2. Csiki and Rhoads (2014) concluded that there should be less
concern about sediment management when removing run-of-the-river dams
because of the minor sediment volumes stored by such dams. The
determination of whether a regulated discharge occurs from such
sediment releases is made on a case-by-case basis. Regulatory Guidance
Letter 05-04, issued by the Corps on August 19, 2005, provides guidance
on when sediment releases from dam breaches require DA authorization
under section 404 of the Clean Water Act. District engineers will use
the information provided in that Regulatory Guidance Letter when
evaluating PCNs. When evaluating PCNs, district engineers will also
consider whether there is a need to test sediment that might be stored
in the impoundment for contaminants, based on a ``reason to believe''
approach similar to the EPA's inland testing manual for dredged
material. If the district engineer determines that the release of
sediments associated with the removal of a low-head dam results in a
discharge of dredged or fill material, this NWP would authorize that
discharge. The effects of those sediment releases will diminish over
time, as the sediment is transported downstream by the flowing water.
Nationwide permit 27 authorizes the installation, removal, and
maintenance of small water control structures, dikes, and berms to
restore or enhance streams and other types of aquatic resources. Small
water control structures include small dams, and small in-stream dams
are typically limited to headwater streams. While DA authorization to
remove some low-head dams could be provided by NWP 27, the proposed new
NWP would authorize the removal of larger low-head dams, including low-
head dams located below the headwaters, that are not authorized by NWP
27. The proposed NWP would authorize the removal of low-head dams
regardless of stream size or the location in the stream network in a
watershed, as long as the district engineer determines, after reviewing
a PCN, that the proposed low-head dam removal activity will result in
no more than minimal individual and cumulative adverse environmental
effects.
We are seeking comments on this proposed new NWP, including its
terms and conditions, such as the definition of ``low-head dam.'' In
response to a PCN, the district engineer may impose activity-specific
conditions on an NWP verification to ensure that the adverse
environmental effects of the authorized activity are no more than
minimal or exercise discretionary authority to require exercise
discretionary authority to require an individual permit for the
proposed activity.
Proposed NWP B. Living Shorelines
We are proposing to issue a new NWP to authorize structures and
work in navigable waters of the United States, and discharges of
dredged or fill material into waters of the United States, for the
construction and maintenance of living shorelines. While some
activities associated with living shorelines can be authorized by NWPs
13 and 27, the construction of living shorelines often requires
individual permits because the structures, work, and fills may not fall
within the terms and conditions of those NWPs. These activities often
require substantial amount of fill discharged into jurisdictional
waters and wetlands to achieve appropriate grades to dissipate wave
energy, as well as sills or breakwaters to protect the marsh fringe
that helps maintain the grade of the substrate. Living shorelines may
also alter intertidal and subtidal habitats utilized by endangered or
threatened species, and PCNs for this NWP will be evaluated by district
engineers to determine if ESA Section 7 consultation
[[Page 35206]]
is required to comply with general condition 18.
Living shorelines maintain the continuity of natural land-water
interface and provide ecological benefits which hard bank stabilization
structures do not, such as improved water quality, resilience to
storms, and habitat for fish and wildlife.
We are proposing a separate NWP to authorize the construction and
maintenance of living shorelines to provide an efficient mechanism for
authorizing these types of projects when they have no more than minimal
adverse environmental effects. The current and proposed NWP 13 is an
important tool for authorizing a variety of bank stabilization
techniques to help protect private and public property and
infrastructure. Both NWP 13 and proposed NWP B provide options for
implementing the Corps' regulations relating to considerations of
property ownership, especially 33 CFR 320.4(g). Section 320.4(g)(2)
states that a landowner has the ``general right to protect property
from erosion'' and that ``applications to erect protective structures
will usually receive favorable consideration.''
Living shorelines are designed for erosion control and also sustain
habitat functions along a shoreline, resulting in minimal environmental
effects on a coastline. Living shorelines provide ecosystem services to
society, shoreline stabilization, storm attenuation, food production,
nutrient and sediment removal, water quality improvement and carbon
sequestration (Barbier et al. 2011). The vegetation and fish
utilization in constructed marsh sill can mirror that of nearby natural
marshes in just a few growing seasons (Currin et al. 2008; Gittman et
al. 2016). Even narrow marshes, like a frequent component of living
shoreline designs, have been shown to slow waves and reduce shoreline
erosion. It must be noted, shorelines are dynamic environments and the
core function of stabilization is not static, but changes over time.
In 2007, the National Research Council (NRC) issued a report
entitled: ``Mitigating Shore Erosion Along Sheltered Coasts.'' \3\ One
of the findings in that report was that the lack of a general permit to
authorize living shorelines is one of a few factors that discourages
the use of that erosion control technique in sheltered coasts. Other
studies have made similar findings. The 2007 NRC study and other
reports acknowledge that living shorelines are not practical or
feasible in all coastal environments. Living shorelines work best in
sheltered coasts, which are defined in the 2007 NRC report as
shorelines that front smaller bodies of water, and are not subject to
the high energy erosive forces that occur along open coasts. Additional
information on living shorelines is available from the Systems Approach
to Geomorphic Engineering Group (SAGE), in a publication entitled
``Natural and Structural Measures for Shoreline Stabilization.'' \4\ In
2015, the National Oceanic and Atmospheric Administration issued
guidance on living shorelines.\5\
---------------------------------------------------------------------------
\3\ Available at http://www.nap.edu/read/11764/.
\4\ Available at: http://sagecoast.org/ (accessed February 4,
2016).
\5\ Available at: http://www.habitat.noaa.gov/pdf/noaa_guidance_for_considering_the_use_of_living_shorelines_2015.pdf
(accessed February 5, 2016).
---------------------------------------------------------------------------
Coastal environments fall along a continuum, and there is no
quantifiable measure to identify a sheltered coast. Therefore, judgment
must be used to determine whether a particular segment of the shoreline
is a sheltered coast where the use of living shorelines to manage
erosion will likely be practical and effective. According to the 2007
NRC report, sheltered coasts are typically found in estuaries, bays,
lagoons, and coastal deltas.
Depending on site conditions, these areas exhibit a variety of
geomorphic features, such as upland bluffs, dunes, beaches, tidal
flats, and sand bars. In sheltered coasts, the distance to the opposite
shore (i.e., fetch) is generally small, and water depths are usually
shallow. These coastal areas are usually subject to low velocity tidal
currents and low- or medium-energy waves. In general, the larger the
fetch the higher the level of protection needed to reduce erosion and
to protect the property.
Living shorelines are generally limited to lower energy, sheltered
estuarine waters rather than open estuarine waters and marine waters
with higher energy waves and currents. Living shorelines are also used
in the Great Lakes, and this proposed NWP would also authorize the
construction and maintenance of living shorelines in these waters and
other lakes. In lower energy shorelines, sills or breakwaters can
provide protection to fringe marshes landward of those structures, but
in higher energy coastal environments, wave energy can bypass those
structures and erode the substrate, resulting in the loss of the marsh
fringe. The combination of a constructed or enhanced marsh fringe with
protective sills or breakwaters can help maintain a more natural
shoreline and provide more ecological functions and services than
hardening shorelines to reduce erosion. Another living shoreline
approach is to construct short, low-profile, sand containment
structures perpendicular to the shoreline, place sand between the low-
profile sand containment structures, grade the sand to the proper slope
to dissipate wave energy, and plant marsh vegetation in the sand to
establish or improve a fringe marsh to reduce erosion. This design
approach allows organisms more access to and from the intertidal zone
than living shorelines constructed with stone sills.
Sills are structures placed in the water outside the seaward edge
of a tidal marsh fringe. Sills can be constructed with stone or other
materials (e.g. oyster, oyster shell bags, coir fiber logs, coir with
mussels, etc.) and protect the existing or planted marsh fringe by
reducing wave action and erosion. The sill should be the minimum size
necessary to protect the marsh fringe. Sills should have breaks to
allow aquatic animals to move between the open water and the marsh
fringe. Breakwaters are structures consisting of stone or other
materials that are constructed offshore to reduce the energy of waves
reaching the shoreline, and protect the marsh vegetation planted or
recruited along the shore. Breakwaters may be detached from, or
attached to, the shoreline.
``Living shoreline'' is a broad term that encompasses a range of
shoreline stabilization techniques along estuarine coasts, bays,
sheltered coastlines, and tributaries. A living shoreline has a
footprint that is made up mostly of native material. It incorporates
vegetation or other living, natural ``soft'' elements alone or in
combination with some type of harder shoreline structure (e.g. oyster
reefs or rock sills) for added stability. Living shorelines are
designed for erosion control and also sustain habitat function along a
shoreline, resulting in minimal environmental effects on a coastline.
Living shorelines provide ecosystem services to society, shoreline
stabilization, storm attenuation, food production, nutrient and
sediment removal, water quality improvement and carbon sequestration.
The vegetation and fish utilization in constructed marsh sill can
mirror that of nearby natural marshes in just a few growing seasons.
Even narrow marshes--like a frequent component of living shoreline
designs--have been shown to slow waves and reduce shoreline erosion. It
should be noted that shorelines are dynamic environments and the core
function of stabilization is not static, but changes over time.
[[Page 35207]]
We are seeking comment on the proposal to limit the placement of
structures and fills to within 30 feet of the mean high water line or
ordinary high water mark. Please note that the proposed 30 foot limit
is not a design standard. It is merely intended to establish a limit
above which a written waiver from the district engineer is required to
obtain NWP authorization. The proposed 30-foot limit was derived by
examining some of the literature on the design living shorelines,
especially those living shorelines that involve the planting of a marsh
fringe with and without sills or other types of protective structures.
Sand fills are often needed to establish a grade along the shore that
will dissipate wave energy and provide appropriate elevations for the
planting of marsh grasses that will further reduce wave energy. A
typical grade for sand fills for planted tidal marsh fringe ranges from
8:1 to 10:1 (Hardaway et al. 2010). According to the Maryland
Department of the Environment (MDE), marsh establishment projects for
shore protection are typically 20 to 25 feet wide and additional
encroachment into the water would be needed if sills or other
structures are necessary to protect the marsh (MDE 2008). In mid-energy
wave environments, wetland marshes need to be around 40 to 70 feet wide
with armor stone to protect the marsh (Hardaway et al. 2010).
Based on our review of available information on design
specifications for living shorelines, we determined that 30 feet is a
moderate encroachment that could authorize a large proportion of living
shorelines with no more than minimal adverse environmental effects. We
are seeking comments on the proposed 30-foot limit, and welcome
suggestions for different limits as long as the commenter provides
supporting data or other information for his or her proposed limit. We
are also proposing to allow district engineers to waive this 30 foot
limit, if they make a written determination concluding that the
proposed activity will result in only minimal adverse environmental
effects after coordinating the PCNs with the agencies. The project
proponent must submit a PCN before a waiver can be issued by the
district engineer, and if the district engineer does not provide a
written verification authorizing the waiver, then the proposed activity
does not qualify for NWP authorization.
The design and construction of living shorelines are dependent on
site-specific conditions. This NWP is intended to provide flexibility
to authorize living shorelines in a variety of environmental settings,
as long as discharges of dredged or fill material into waters of the
United States and structures and work in navigable waters are minimized
to the maximum extent practicable. If the district engineer does not
provide a written response within 45-days of receipt of a complete PCN,
and general conditions 18 and 20 do not apply, a default authorization
does not occur for an NWP activity that requires a written waiver from
the district engineer. Commenters are encouraged to suggest other
limits, and provide a rationale for a recommended alternative limit. We
are also soliciting comments on whether district engineers should have
the authority to waive this 30-foot limit, if in response to a PCN the
district engineer can issue a written waiver based on a site-specific
evaluation and a written finding that the proposed living shoreline
will result in no more than minimal adverse environmental effects.
There are nine criteria used by the Corps to determine whether a
proposed NWP activity will result in no more than minimal adverse
environmental effects are listed in paragraph 2 of Section D,
``District Engineer's Decision.''
We are also seeking comment on the other proposed terms of this
NWP, as well as the proposed pre-construction notification thresholds.
We are proposing to require PCNs for any proposed construction of
living shorelines. However, for maintenance and repair activities, pre-
construction notification would not be required, unless a PCN is
necessary under an applicable NWP general condition or regional
conditions imposed by division engineers. For example, maintenance and
repair activities conducted by non-federal permittees that might affect
a species listed under the Endangered Species Act would require pre-
construction notification (see general condition 18).
For activities that require PCNs, district engineers will review
those proposed activities, and make site-specific determinations
whether the proposed activities will result in no more than minimal
individual and cumulative adverse environmental effects. Division
engineers can add regional conditions to this NWP to address
environmental concerns and other public interest review factors at a
regional level.
Discussion of Proposed Modifications to Nationwide Permit General
Conditions
GC 12. Soil Erosion and Sediment Controls. To clarify the
application of this general condition in tidal waters, we are proposing
to modify the last sentence to encourage permittees to conduct work
during low tides to reduce soil erosion and sediment transport during
construction activities in waters subject to the ebb and flow of the
tide.
GC 16. Wild and Scenic Rivers. We are proposing to modify this
general condition to require pre-construction notification for any NWP
activity that will 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. Section 7(a) of the Wild and Scenic Rivers
Act requires Federal agencies that issue permits or licenses for water
resources projects to coordinate with the Federal agency with direct
management responsibility for that river. Water resources projects, for
the purposes of the Wild and Scenic Rivers Act, include activities that
require Department of the Army permits under Section 404 of the Clean
Water Act and Section 10 of the Rivers and Harbors Act of 1899.
District engineers will coordinate PCNs for those NWP activities that
have the potential to adversely affect Wild and Scenic Rivers or study
rivers. The managing Federal agency with direct management
responsibility for that river will issue a determination with its
findings on the proposed NWP activity's effects on the applicable
characteristics of the Wild and Scenic River or study river. There are
different standards for activities that are within the corridors of
these Wild and Scenic Rivers and activities that are outside of those
river corridors.
For the purposes of section 7(a) of the Wild and Scenic River Act,
there are processes for evaluating water resources projects within a
Wild and Scenic River corridor and for evaluating water resources
projects outside a Wild and Scenic River corridor. For activities
within a Wild and Scenic River's ordinary high water marks (i.e., the
activity is below the ordinary high water mark), the Federal agency
with direct management responsibility for that river applies a ``direct
and adverse effect'' standard. For an activity located in a river's
ordinary high water marks upstream, downstream, or on a tributary to a
Wild and Scenic River (i.e., ``outside'' the Wild and Scenic River
corridor), the Federal agency with direct management responsibility for
that river evaluates whether the proposed activity will ``invade the
area or unreasonably diminish'' the Wild and Scenic River. After the
Federal agency with direct management responsibility for that river
makes its determination, it will transmit that determination to the
Corps district.
[[Page 35208]]
If the Federal agency makes a written determination that the
proposed NWP activity will not have a direct and adverse effect on the
values that resulted in the designation of that Wild and Scenic River
or study river, the district engineer will issue the NWP verification
as long as the proposed NWP activity complies with all other applicable
terms and conditions. If the Federal agency with direct management
responsibility for that river finds that the proposed NWP activity will
have a direct and adverse effect on the Wild and Scenic River or study
river, it may recommend measures to eliminate those adverse effects. If
the prospective permittee modifies the proposed NWP activity to adopt
those recommended measures, the district engineer will coordinate the
revised PCN with the Federal agency, and then decide whether to issue
the NWP verification.
District engineers are encouraged to work out local procedures with
Federal agencies with direct management responsibility over Wild and
Scenic Rivers and study rivers in their geographic areas of
responsibility. Regional conditions may also be added to the NWPs by
division engineers to help potential users of the NWPs understand when
PCNs need to be submitted to district engineers to comply with this
general condition.
GC 18. Endangered Species. We are proposing to modify the first
paragraph of this general condition to define the terms ``direct
effects'' and ``indirect effects.'' We are proposing to use definitions
from FWS and NMFS regulations and guidance to define these terms for
general condition 18, to assist with compliance with this general
condition. We are proposing to define ``direct effects'' as ``the
immediate effects on listed species and critical habitat caused by the
proposed NWP activity.'' We are proposing to define ``indirect
effects'' as ``those effects on listed species and critical habitat
that are caused by the proposed NWP activity and are later in time, but
still are reasonably certain to occur.'' The definition of ``direct
effects'' is adapted from the FWS and NMFS's 1998 Endangered Species
Consultation Handbook (page 4-25) because that term is not defined in
their section 7 regulations. The definition of ``indirect effects'' is
adapted from the FWS and NMFS's section 7 regulations at 50 CFR 402.02.
The implementing regulations for ESA section 7 require Federal
agencies to consult with the FWS and/or NMFS on any Federal action that
``may affect'' listed species or critical habitat. The Federal action
is the activity that is authorized, funded, or carried out, in whole or
in part, by that agency. To determine if ESA section 7 consultation is
required, the Federal agency evaluates whether its action will directly
or indirectly affect listed species or critical habitat.
The term ``minimal adverse environmental effect'' used for the
purposes of the NWPs has a different meaning and regulatory application
than the term ``may affect,'' when that term is used for implementing
section 7 of the ESA. The former term is the threshold for determining
whether a regulated activity qualifies for NWP authorization. The
latter term is used to determine when section 7 consultation is
required for a Federal action, such as an activity that may be
authorized by an NWP. For the purposes of the NWPs, ESA section 7
consultation is required for NWP activities that may affect listed
species or critical habitat. Either formal or informal consultation may
be conducted to comply with the requirements of ESA section 7.
General condition 18 requires a non-federal permittee to submit a
pre-construction notification to the district engineer if any listed
species or designated critical habitat might be affected or is in the
vicinity of the project. The term ``in the vicinity'' cannot be
explicitly defined for the purposes of general condition 18 because the
``vicinity'' is dependent on a variety of factors, such as species
distribution, ecology, life history, mobility, and migratory patterns
(if applicable), as well as habitat characteristics and species
sensitivity to various environmental components and potential
stressors. The vicinity is also dependent on the NWP activity and the
types of direct and indirect effects that might be caused by that NWP
activity.
During formal consultation, ESA section 7 and its implementing
regulations require the FWS and NMFS to consider in their biological
opinions the direct and indirect effects of the Federal action, as well
as the effects of any interrelated or interdependent actions. The FWS
and NMFS also consider cumulative effects, as that term is defined in
50 CFR 402.02. Interrelated and interdependent activities are not
Federal actions, because they are not authorized, funded, or carried
out by the Federal agency. In many instances, the action that triggers
the ESA section 7 consultation requirement (e.g., a discharge of
dredged or fill material into waters of the United States that requires
Corps authorization and may affect a listed species or critical
habitat) is a component of a larger overall project, and the biological
opinion also considers the effects of the interrelated and
interdependent activities on listed species and critical habitat. Those
interrelated and interdependent activities are outside of the
jurisdiction of the Corps. Including interrelated and interdependent
activities in a formal ESA Section 7 consultation and biological
opinion does not grant the Corps any authority to regulate those
activities and their effects on listed species and critical habitat.
The FWS and NMFS would be responsible for enforcing those provisions of
the incidental take statement that apply to the upland activities
outside of the Corps' jurisdiction.
We are proposing to modify paragraph (b) of this general condition
to clarify that Federal agencies only need to submit documentation of
compliance with section 7 of the Endangered Species Act (ESA) when the
terms and conditions of the NWP, or regional conditions imposed by the
division engineer, require the submission of a PCN. The NWP regulations
at 33 CFR 330.4(f)(1) do not require Federal permittees to submit PCNs
if the proposed NWP activity does not otherwise require a PCN. Under
section 7(a)(2) of the Endangered Species Act, all Federal agencies are
obligated to ensure that their actions do not jeopardize the continued
existence of listed species or destroy or adversely modify critical
habitat. Therefore, Federal agencies have their own obligations to
conduct section 7 consultations to ensure that their actions are not
likely to jeopardize the continued existence of listed species or
result in the destruction or adverse modification of designated
critical habitat. Activities authorized by NWP are usually a component
of a larger overall Federal agency action. The federal agency is
responsible for ensuring that its overall action, plus any NWP
activities that authorize components of their larger overall action,
comply with ESA section 7. When a Federal permittee conducts formal
section 7 consultation, the FWS and NMFS will consider the direct and
indirect effects of that Federal agency's action, plus the effects
caused by interrelated and interdependent activities. The overall
action subject to formal section 7 consultation should include those
activities for which the Federal permittee is seeking NWP
authorization.
It is not the Corps' responsibility to make sure that other Federal
agencies are fulfilling their obligations under section 7 of the ESA.
The FWS and NMFS can work with the federal agency if they have concerns
about that Federal
[[Page 35209]]
agency's compliance with ESA section 7 for a particular Federal action.
The proposed change to this paragraph is also consistent with 33 CFR
330.4(f)(1), which states that for the purposes of the NWP Program,
Federal agencies should follow their own procedures for complying with
ESA section 7. There should not need to be two section 7 consultations
for the same Federal action, when another Federal agency's larger
action includes an activity for which they are seeking NWP
authorization.
We are also proposing to modify paragraph (d) of this general
condition to clarify that the district engineer may add activity-
specific conditions to an NWP authorization after conducting formal or
informal ESA section 7 consultation. The 2012 version of this general
condition referred to regional conditions, which are approved by
division engineers to modify one or more NWPs in a region. Regional
conditions are imposed within a Corps district, state, watershed, or
other type of geographic area. Most ESA section 7 consultations done
for the purposes of general condition 18 are activity-specific
consultations, and therefore it would be more appropriate for this
paragraph to refer to conditions added to specific NWP authorizations.
Division engineers can impose regional conditions on the NWPs to help
protect listed species and designated critical habitat. Regional
conditions are usually identified through coordination with the FWS or
NMFS instead of formal or informal consultations.
We are also proposing to update the URLs for the Web sites
maintained by the FWS and NMFS where information on endangered and
threatened species and designated critical habitats can be obtained.
GC 19. Migratory Birds and Bald and Golden Eagles. We are proposing
to modify this general condition to state that the permittee is
responsible for ensuring that his or her action complies with the
Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act,
instead of stating that the permittee is responsible for obtaining any
``take'' permits from the U.S. Fish and Wildlife Service. There may be
situations where such ``take'' permits are not required and compliance
with these acts may be achieved through other means.
GC 20. Historic Properties. Parallel with the proposed
modifications of paragraph (b) of general condition 18, we are also
proposing to modify paragraph (b) of general condition 20 to state that
federal permittees only need to submit documentation of their
compliance with section 106 of the National Historic Preservation Act
(NHPA) if the proposed NWP activity requires pre-construction
notification because of other terms and conditions, including regional
conditions imposed by division engineers. Federal agencies are
responsible for complying with the requirements of NHPA section 106.
Activities undertaken by other federal agencies that might qualify for
NWP authorization are usually parts of a larger overall action and
include other activities that not regulated by the Corps. If a State
Historic Preservation Officer, Tribal Historic Preservation Officer, or
the Advisory Council on Historic Preservation have concerns about the
federal agency's compliance with section 106, they can work with the
federal agency conducting the larger overall undertaking.
GC 23. Mitigation. We are proposing to modify the opening paragraph
of this general condition and paragraph (b) to clarify that mitigation
can be required by district engineers to ensure that activities
authorized by NWPs will result in no more than minimal individual and
cumulative adverse environmental effects. The NWP regulations at 33 CFR
330.1(e)(3) state that district engineer first reviews the PCN to
determine whether the proposed NWP activity will result in more than
minimal individual and cumulative adverse environmental effects. If the
district engineer determines the adverse environmental effects of the
proposed NWP activity will be more than minimal, he or she will notify
the applicant of two options: (1) The applicant can apply for an
individual permit, or (2) the applicant can prepare a mitigation
proposal to reduce the adverse environmental effects so that they are
no more than minimal. If the applicant chooses the latter option, the
district engineer will review the mitigation proposal and if it is
sufficient to ensure the proposed NWP activity will result in no more
than minimal individual and cumulative adverse environmental effects,
he or she will issue an NWP verification with conditions stating the
mitigation requirements.
We are proposing to modify paragraph (d) to state that compensatory
mitigation for stream losses should be provided through rehabilitation,
enhancement, or preservation. This will make paragraph (d) consistent
with 33 CFR 332.3(e)(3), which states that streams are difficult-to-
replace resources. Compensatory mitigation projects for streams should
focus on actions that improve or protect the ecological functions
provided by existing streams. The proposed modification uses the word
``should'' and if a particular stream restoration project involves re-
establishment of the stream, and would have a high likelihood of
resulting in the restoration of stream functions and services, then
that stream re-establishment project could be determined by the
district engineer to be an acceptable compensatory mitigation project
for an NWP activity.
In paragraph (e), we are proposing to modify the first sentence to
state that compensatory mitigation provided through riparian areas can
be accomplished by restoration, enhancement, or preservation of those
areas. An existing stream would have had a riparian area at some time
in the past, so we are deleting establishment as a compensatory
mitigation mechanism. If the riparian area was removed, re-establishing
that riparian area is a restoration action. We are proposing to modify
the second sentence of this paragraph to state that restored riparian
areas should consist of native species. If the compensatory mitigation
project involves replanting the riparian area, then native plant
species should be used. If an intact riparian area already exists, and
that riparian area is already providing important ecological functions
and services, then that riparian area should be preserved through site
protection mechanisms. Clearing trees from a well-established,
functioning riparian area to remove individual trees because they are
non-native, in most cases, can do more harm than good. Clearing trees
disturbs the soil and makes it more susceptible to erosion, and it will
take years for the newly planted vegetation to develop into trees.
During the time it takes the riparian area to develop and recover,
important ecological functions are likely to be reduced or absent.
In the 2012 version of general condition 23, the requirement to
comply with the applicable provisions of the Corps' compensatory
mitigation regulations at 33 CFR part 332 is in the paragraph
addressing wetland mitigation. Because the Corps' compensatory
mitigation regulations at 33 CFR part 332 apply to all types of aquatic
resources, including streams, we are proposing to move those
requirements to a new separate paragraph (paragraph (f)).
We are proposing to modify paragraph (f)(1) to state that if the
district engineer determines compensatory mitigation is required for
the proposed NWP activity, the preferred mechanism for providing
compensatory mitigation is either mitigation bank credits or in-lieu
credits. This proposed modification is consistent with the 2008
mitigation rule,
[[Page 35210]]
specifically 33 CFR 332.3(b). That section of the 2008 mitigation rule
establishes a hierarchical framework for considering compensatory
mitigation options for DA permits. Mitigation banks are a preferred
mechanism for providing compensatory mitigation because they
``typically involve larger, more ecologically valuable parcels, and
more rigorous scientific and technical analysis, planning and
implementation than permittee-responsible mitigation.'' (33 CFR
332.3(b)(2)). In-lieu fee programs are preferable to permittee-
responsible mitigation because in-lieu fee projects typically involve
``larger, more ecologically valuable parcels, and more rigorous
scientific and technical analysis, planning and implementation than
permittee-responsible mitigation.'' (33 CFR 332.3(b)(3)). In addition,
in-lieu fee programs are required to implement compensation planning
frameworks to identify and address high-priority resource needs on a
watershed scale. If the district engineer determines that compensatory
mitigation is necessary to ensure an NWP activity results in no more
than minimal individual and cumulative adverse environmental effects,
and the appropriate number and type of mitigation bank credits or in-
lieu fee program credits are not available, then the district engineer
will require the applicant to submit a permittee-responsible mitigation
plan for the district engineer's review.
In October 2015, the Corps' Institute for Water Resources released
a report entitled: ``The Mitigation Rule Retrospective: A Review of the
2008 Regulations Governing Compensatory Mitigation for Losses of
Aquatic Resources'' (Report number 2015-R-03). A copy of this report is
available at: http://www.iwr.usace.army.mil/Media/NewsStories/tabid/11418/Article/626925/iwr-releases-the-mitigation-rule-retrospective-a-review-of-the-2008-regulations.aspx. The report examines Corps permit
data and compensatory mitigation requirements for the period of 2010 to
2014. The report also looks at the number of approved mitigation banks
and in-lieu fee programs under the 2008 mitigation rule. The report
uses data from the Corps Regulatory Program's automated information
system, ORM, and the Regulatory In-Lieu Fee and Bank Information System
(RIBITS).
During the five-year period examined in the mitigation rule
retrospective, 31% of the individual permits issued by Corps districts
required compensatory mitigation and 8% of the activities verified as
qualifying for general permit authorization required compensatory
mitigation. Ten percent of the NWP verifications issued from 2010 to
2014 required compensatory mitigation. The Corps' regulations have
different thresholds for requiring compensatory mitigation for
individual permits and general permits. The threshold for requiring
compensatory mitigation for individual permits is found at 33 CFR
320.4(r), which was not changed by the 2008 mitigation rule (see 33 CFR
332.1(b)). The threshold for requiring compensatory mitigation for NWP
activities is described in 33 CFR 330.1(e)(3), which was promulgated in
1991 and was not affected by the issuance of the 2008 mitigation rule.
Regional general permits issued by Corps districts use a threshold
similar to the compensatory mitigation threshold for the NWP program.
Compensatory mitigation is required for NWPs and other general permits
when necessary to ensure that the authorized activities result in no
more than minimal adverse environmental effects.
The report also examined the effectiveness of the Corps Regulatory
Program in minimizing impacts to jurisdictional waters and wetlands
(see figure 5 of the report). For individual permits and general
permits, 89% of the authorized impacts to jurisdictional waters and
wetlands were less than \1/2\-acre, and 70% of the permitted impacts to
jurisdictional waters and wetlands were less than \1/10\-acre. The
authorized impacts shown in that chart include both permanent and
temporary impacts to jurisdictional waters and wetlands. Those data
show that project proponents design their projects to reduce those
impacts to qualify for NWP authorization. They also minimize wetland
losses so that they are less than \1/10\-acre, below the threshold in
paragraph (c) of general condition 23 for requiring compensatory
mitigation for wetland losses.
The mitigation rule retrospective also demonstrates the increased
use of mitigation bank credits and in-lieu fee program credits to
fulfill compensatory mitigation requirements in individual permits and
general permit verifications. This increased use occurs as a result of
more mitigation banks and in-lieu fee programs getting approved under
the 2008 mitigation rule and more credits becoming available.
Concurrent with this increased use of mitigation bank credits and in-
lieu fee program credits, there has been a decrease in the use of
permittee-responsible mitigation to fulfill compensatory mitigation
requirements.
The report also includes charts showing the service areas of
approved mitigation banks and in-lieu fee program credits, where those
credits might be available for providing compensatory mitigation for
NWP activities and activities authorized by other types of Corps
permits. Most of the approved mitigation banks provide wetland credits,
some mitigation banks provide stream credits, and a number of
mitigation banks provide both wetland and stream credits. There are
some approved mitigation banks that provide credits for losses of other
types of aquatic resources, and those mitigation banks are relatively
rare. However, given the increased availability of mitigation banks and
in-lieu fee program credits in much of the country, we are proposing to
modify paragraph (f)(1) of general condition 23 to establish a
preference for the use of those credits to comply with compensatory
mitigation requirements imposed by district engineers to ensure that
NWP activities result in no more than minimal individual and cumulative
adverse environmental effects. The use of mitigation bank credits and
in-lieu fee program credits is also beneficial to permittees because it
reduces the amount of time needed to evaluate a PCN. If an applicant
proposes permittee-responsible mitigation to fulfill the compensatory
mitigation requirements in an NWP verification, more time is needed for
Corps district staff to evaluate the proposed mitigation plan and
ensure that it complies with all applicable requirements in 33 CFR
332.1 through 332.7. Permittee-responsible mitigation could be used to
fulfill the compensatory mitigation requirements for NWP activities, if
the appropriate amount and type of mitigation bank or in-lieu fee
program credits are not available at the time the NWP verification
decision is being made, or if the district engineer determines, after
applying the criteria at 33 CFR 332.3(a) and (b), that permittee-
responsible mitigation would be acceptable for offsetting the losses
caused by a particular NWP activity.
In addition, we are proposing to modify paragraph (i) to make it
clear that compensatory mitigation to offset losses of specific
functions of jurisdictional waters and wetlands should only be required
by district engineers when those losses are caused by regulated
activities. For example, removing vegetation in a utility line right-
of-way in jurisdictional wetlands by using techniques that do not
result in a discharge of dredged or fill material into waters of the
United States does not require DA authorization. Consistent with the
Corps' mitigation policy at 33 CFR 320.4(r), compensatory mitigation
should only be required for impacts
[[Page 35211]]
directly related to the activity that requires DA authorization.
The Corps is seeking public comment on ways to improve how
compensatory mitigation conducted under the NWP program is implemented
to offset direct, indirect, and cumulative effects. The Corps is
particularly interested in factors which District Engineers would
consider for deciding when and how much mitigation may be necessary and
what additional information could be considered to help inform their
mitigation decisions.
GC 30. Compliance Certification. We are proposing to modify this
general condition to add a timeframe for submitting the completed
certification document. The completed certification should be sent to
the district engineer within 30 days of completing the authorized
activity or the completion of the implementation of any required
compensatory mitigation. We are referring to the implementation of the
required compensatory mitigation, instead of the successful completion
of compensatory mitigation. For permittee-responsible mitigation, it
may be years before the required compensatory mitigation is determined
to be ecologically successful, because the monitoring period is a
minimum of five years (see 33 CFR 332.6(b)). When credits from
mitigation banks or in-lieu fee programs are used to fulfill the
compensatory mitigation requirements of NWP activities, implementation
refers to securing those credits from the sponsor of the mitigation
bank or in-lieu fee program. The Corps district should be notified,
through the compliance certification, when the required aquatic
resources restoration, enhancement, establishment, or preservation
activity has taken place. After the compensatory mitigation project has
been implemented, the district engineer will review monitoring reports
to ensure that the required compensatory mitigation is fulfilling its
objectives and offsetting the authorized impacts.
GC 31. Activities Affecting Structures or Works Built by the United
States. Section 14 of the Rivers and Harbors Act of 1899 (33 U.S.C.
408) authorizes the Secretary of the Army to grant permission for the
alteration or occupation or use of structures or works built by the
United States (i.e., U.S. Army Corps of Engineers federally authorized
Civil Works projects) if the Secretary determines that the activity
will not be injurious to the public interest and will not impair the
usefulness of that project. The authority to issue these section 408
permissions has been delegated to Corps Headquarters, Corps divisions,
or Corps districts depending on the case-specific circumstances for a
408 permission request. Some of these activities also require
authorization under section 404 of the Clean Water Act and/or Section
10 of the Rivers and Harbors Act of 1899, and may be eligible for one
or more NWPs.
On July 31, 2014, the Corps issued Engineer Circular 1165-2-216,
which provides policy and procedural guidance for evaluating requests
for section 408 permissions. The Engineer Circular also states that
district engineers cannot make decisions on requests for Clean Water
Act section 404 or Rivers and Harbors Act of 1899 section 10
authorizations prior to the Corps making decisions on section 408
requests. In addition, 33 CFR 330.4(b)(5) states that ``NWPs do not
authorize interference with any existing or proposed Federal project.''
That provision of the NWP regulations means that no activity that would
alter or temporarily or permanently occupy or use a Corps federal
project is authorized by NWP until a required section 408 permission is
granted.
The text of 33 CFR part 330.4(b)(5) has been incorporated in the
text of the NWPs since 2000 (see 65 FR 12818 at 12897, March 9, 2000).
To provide additional clarity and ensure that no activity potentially
authorized by NWP can go forward until the project proponent receives a
required section 408 permission to alter or occupy structures or works
built by the United States, we are proposing to add a new general
condition. The new general condition states that a proposed NWP
activity that also needs section 408 permission requires submission of
a PCN and is not authorized by NWP until the district engineer issues a
written NWP verification. The district engineer will not issue a
written NWP verification until after the 408 permission has been
granted, or the Corps determines that section 408 permission is not
required for a particular activity.
Additional information on the section 408 permission process and
the timing of the issuance of authorizations by Regulatory Program
offices is provided in Engineer Circular 1165-2-216, which is available
at: http://www.usace.army.mil/Missions/CivilWorks/Section408.aspx.
GC 32. Pre-Construction Notification. We are proposing to modify
paragraph (b) by adding a new paragraph (b)(2) to state that the PCN
should identify the specific NWP(s) the project proponent wants to use
to authorize the proposed activity. Some activities that require DA
authorization may be authorized by more than one NWP, and project
proponents can choose to seek authorization under the NWP or NWPs that
most readily authorizes that activity. For example, one NWP might have
been issued WQC by the state while another NWP that could authorize the
same activity might have WQC denied by the state and thus require an
individual WQC. Consistent with the Corps Regulatory Program Standard
Operating Procedure (SOP) issued in 2009, districts should evaluate
permit applications using the least extensive and time consuming review
process (see page 9 of the SOP). When an applicant requests
authorization under a specific NWP, then the district should evaluate
the PCN for that particular NWP.
In addition, we are proposing to modify paragraph (b)(4) to require
a description of mitigation measures the applicant intends to use to
reduce adverse environmental effects caused by the proposed activity.
Such mitigation measures can include on-site avoidance and minimization
measures. This change is intended to add efficiency to the PCN review
process. Identifying these mitigation measures up-front in the PCN can
help reduce the amount of time district engineers take to reach
decisions on whether to issue NWP verifications.
For linear projects, we are proposing to change paragraph (b)(4) to
make it clear that the PCN should identify all crossings of waters of
the United States that require DA authorization. Since the 1991 NWPs
were issued, the notification general condition has required the
prospective permittee to identify in the PCN ``any other NWPs, 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''
(see 56 FR 59145). This provision has been present in the
``notification'' general condition for all the subsequent reissuances
of the NWPs. This requirement includes crossings of waters of the
United States authorized by non-reporting NWPs, but does not include
crossings of waters of the United States that do not require DA
authorization, such as utility line crossings accomplished by
directional drilling below section 404-only waters, where there is no
discharge of dredged or fill material into waters of the United States.
We are also proposing to modify paragraph (b)(4) to require, for linear
projects, that the PCN include the quantity of proposed losses of
waters of the United States for each single and complete crossing of
those waters. Each separate and distance crossing of waters of the
United States may be eligible for separate NWP authorization, subject
to
[[Page 35212]]
the discretion of the district engineer and compliance with 33 CFR
330.6(d).
In paragraphs (b)(7) and (8) of this general condition, we are
proposing to make changes consistent with the proposed changes to
paragraph (c) of general conditions 18 and 20. These changes will also
be consistent with 33 CFR 330.4(f)(2) and (g)(2). The requirement to
submit PCNs for proposed NWP activities that might affect listed
species or critical habitat under the ESA or have the potential to
cause effects to historic properties is limited to non-federal
permittees. Federal permittees are responsible for following their own
procedures for complying with ESA section 7 and NHPA section 106 (see
33 CFR 330.4(f)(1) and (g)(1), respectively).
We are proposing to add paragraph (b)(9) to require the PCN to
include a statement from the project proponent confirming that he or
she has submitted a written request for a section 408 permission, if
the proposed NWP activity will alter or occupy structures or works
built by the United States. This proposed new paragraph will help
implement the proposed new general condition 31.
To provide flexibility in the submittal of PCNs and supporting
information, we are proposing to modify paragraph (c) of this general
condition to state that applicants may submit PCNs and supporting
information as electronic files. Corps districts should make it clear
on their Regulatory home pages how prospective users of the NWPs can
submit electronic files of PCNs and supporting information.
In paragraph (d), agency coordination, we are proposing to
restructure the text so that there are separate subparagraphs
explaining when agency coordination is required and the procedures for
agency coordination. We are proposing to require agency coordination
for PCNs for proposed NWP 13 activities where the applicants request
waivers for one or more of limits of NWP 13 that can be waived with a
written activity-specific determination of no more than minimal adverse
environmental effects. In paragraph (d)(2), we are also proposing to
remove the requirement for agency coordination for all NWP 48
activities that require pre-construction notification. The majority of
commercial shellfish aquaculture activities authorized by NWP 48 are
on-going operations. We do not believe it is necessary to do agency
coordination each time these on-going activities are re-authorized by
NWP 48. Since NWP 48 has been used for almost 10 years, we do not
believe it is necessary to require agency coordination for other
commercial shellfish aquaculture activities authorized by NWP 48. Corps
districts can work out agreements with regional or local offices of the
resource agencies if they determine that agency coordination would help
provide them with information to help make the no more than minimal
adverse environmental effects determination for NWP 48 activities. In
addition, Corps districts conduct activity-specific ESA section 7 or
Essential Fish Habitat consultations when proposed NWP 48 activities
may affect listed species or critical habitat, or may adversely affect
Essential Fish Habitat, unless there are regional programmatic
consultations that apply to these activities. These section 7 and EFH
consultations can also result in exchanges of information from the FWS
and/or NMFS that district engineers can use to make their decisions on
NWP 48 PCNs.
Discussion of Proposed Modifications to Section D, ``District
Engineer's Decision''
We are proposing to modify paragraph 1 to state that if an
applicant requests authorization under one or more specific NWPs, the
district engineer should issue the verification letter for those NWPs,
unless he or she exercises discretionary authority to require an
individual permit. The district engineer would exercise discretionary
authority in cases where the adverse environmental effects would be
more than minimal after considering options for appropriate and
practicable avoidance, minimization, and compensatory mitigation. The
revised text in paragraph 1 refers to the terms of the NWPs. That is,
the text of the specific NWP. The word ``terms'' is defined at 33 CFR
330.2(h) as: ``the limitations and provisions included in the
description of the NWP itself.'' The general conditions are the same
for all NWPs, so it is the text of the NWP that usually determines
eligibility for NWP authorization. An exception is when the division
engineer has imposed regional conditions that further restrict a
particular NWP so that a proposed activity does not qualify for
authorization by that NWP.
We are proposing to modify paragraph 2 to clarify that a condition
assessment can also be used to help determine whether a proposed
activity will result in no more than minimal adverse environmental
effects. In the second sentence of paragraph 3, we are proposing to
change the text to state that applicants may also propose compensatory
mitigation to offset impacts to other types of waters, such as streams.
In the following sentence, we are proposing to clarify that mitigation
measures other than compensatory mitigation may also be used to ensure
that a proposed NWP activity results in no more than minimal adverse
environmental effects.
In paragraph 4, we are proposing to clarify that the 45-day PCN
review period may be extended if general conditions 18, 20, and/or 31
apply and additional time is needed to complete ESA section 7
consultation, NHPA section 106 consultation, or for the Corps to make a
decision on a request for section 408 permission. The proposed change
to this sentence also includes NWPs 21, 49, and 50, because regulated
activities are not authorized by these NWPs until written verifications
are issued by district engineers.
Further Information
In item 5, we are proposing to add a cross-reference to proposed
new general condition 31. If the Corps issues a section 408 permission,
then the NWP activity would not be considered as interfering with the
federal project.
Discussion of Proposed Modifications to Existing Nationwide Permit
Definitions
We are proposing changes to some of the NWP definitions. If a
definition is not discussed below, we are not proposing any substantive
changes to that definition.
We received one suggestion to define ``temporary.'' We believe that
district engineers should have the discretion to determine on a case-
by-case basis what constitutes a temporary impact versus a permanent
impact. The length of time to consider an impact to be ``temporary''
depends on a variety of factors, including how soon the temporary
structures and fills need to be removed after construction has been
completed. In some cases they might need to be removed shortly after
construction is completed. In other cases more time might be necessary
to allow the completed structures and fills to stabilize prior to
removing any temporary structures or fills. The appropriate length of
time would depend on various factors, such as resource type,
hydrodynamics, soils, geology, plant communities, and season. Providing
a national definition of ``temporary'' would be less protective of the
environment because it would constrain local decision making. For
example, if the authorized structure or fill is not allowed sufficient
time to stabilize, it may collapse or be washed away after the
temporary structures or fills are removed.
[[Page 35213]]
Discharge. We are proposing to modify this definition to make it
clear that the use of the term ``discharge'' in the NWPs refers to
``discharges of dredged or fill material'' and not to discharges of
other types of pollutants. Point source discharges of other types of
pollutants are regulated under section 402 of the Clean Water Act.
Loss of waters of the United States. We are proposing to modify
this definition to clarify that loss of stream bed can be measured by
area (e.g., acres, square feet) or by linear feet. For the NWPs that
authorize discharges of dredged or fill material into waters of the
United States that result in the loss of stream bed through filling or
excavation, specified limits may be expressed in acres, linear feet, or
both. For example, NWP 12 has a \1/2\-acre limit. NWPs 21, 29, 39, 40,
42, 43, 44, 50, 51, and 52 have both \1/2\-acre limits and 300 linear
foot limits for losses of stream bed. For those 10 NWPs, the loss of
intermittent or ephemeral stream bed can be waived upon a written
determination by the district engineer after he or she coordinates the
PCN with the resource agencies, as long as the total loss of waters of
the United States, including losses of stream bed, does not exceed \1/
2\-acre.
The Corps Regulatory Program tracks authorized impacts and required
compensatory mitigation for all permit actions, including NWP
verifications, in its national database (ORM). For each individual
permit decision and general permit verification, Corps district project
managers are required to record in ORM the initial proposed impacts,
the proposed impacts, and the authorized impacts to jurisdictional
waters and wetlands. Most of the impacts are entered as acres, and
Corps district project managers also have the option of entering
impacts in linear feet. The amount of proposed and required
compensatory mitigation may be entered as acres or linear feet, or as
the number of mitigation bank or in-lieu fee program credits. The units
of measure used for recording amounts of impacts and compensatory
mitigation at the discretion of the Corps district project manager. In
many cases, Corps district project managers enter both acres and linear
feet for impacts and compensatory mitigation. Using different units of
measure for recording impacts and compensatory mitigation makes it
difficult to produce summary data at national and regional levels, and
results in double counting if both acres and linear feet are recorded
for a particular authorized impact or compensatory mitigation
requirement. A uniform metric such as acres is a critical tool for
clear and consistent reporting of the Corps Regulatory Program's
contribution to protecting the Nation's waters and wetlands.
When a discharge of dredged or fill material into waters of the
United States authorized by a Clean Water Act Section 404 permit
occurs, or when structures or work in navigable waters of the United
States authorized by a Rivers and Harbors Act of 1899 Section 10 permit
occur, an area of jurisdictional waters and wetlands is affected.
Compensatory mitigation projects restore, enhance, establish, or
preserve areas of wetlands and waters. The use of linear feet as a
metric for quantifying impacts to wetlands and waters or gains of
wetlands and waters through compensatory mitigation projects is
misleading. Consider, for example, potential impacts to a 300 linear
foot segment of a stream that has a mean width of 20 feet. If the
project proponent requests an NWP verification to do bank stabilization
along one of the banks of that stream segment, and the fill discharged
into the stream has a mean width of 3 feet, then the acreage of the
proposed impact to the stream bed is 0.02 acre. As another example, if
the project proponent requests NWP authorization to fill the entire 300
linear foot segment of stream, then the proposed impacts to that 20-
foot wide stream bed would be 0.14 acre, or seven times the acreage
impact for that same 300 linear feet of stream if only a 3-foot wide
area of that stream were to be filled along those 300 linear feet.
Quantifying stream bed impacts as acres results in more accurate
reporting on the impacts of activities authorized by Corps permits on
streams and other types of waters.
For some purposes, measuring losses of stream bed in linear feet
provides a useful approach for ensuring no more than minimal adverse
environmental effects by limiting the length of stream bed that can be
filled or excavated, below the acreage limit for that NWP. Some of the
NWPs have linear foot limits (e.g., 300 linear feet) that can be waived
for losses of intermittent and ephemeral streams if a district engineer
makes a written determination that the proposed activity will result in
no more than minimal individual and cumulative adverse environmental
effects. Those NWPs that have a linear foot limit for losses of stream
bed that can be waived are still subject to the \1/2\-acre limit for
losses of waters of the United States. The \1/2\-acre limit cannot be
waived.
The \1/2\-acre limit imposes a cap on waivers of the 300 linear
foot limit for losses of intermittent and ephemeral stream bed, to
ensure those losses result in no more than minimal adverse
environmental effects. For example, for an ephemeral stream bed that
has a mean width of 20 feet, no more than 1,089 linear feet of that
ephemeral stream could be filled or excavated because of the 1/2-acre
limit. For a waiver of the 300 linear foot limit to occur, the district
engineer must first coordinate the PCN with the agencies, in accordance
with the procedures in paragraph (d) of general condition 32. After
conducting this agency coordination, the district engineer must make a
written determination whether the proposed activity will result in no
more than minimal individual and cumulative adverse environmental
effects, after considering the factors in paragraph 2 of Section D,
District Engineer's Decision. The district engineer may require
compensatory mitigation or other forms of mitigation to ensure no more
than minimal adverse environmental effects. After conducting agency
coordination, the district engineer might also determine that the
proposed activity will result in more than minimal adverse
environmental effects and exercise discretionary authority to require
an individual permit, which would involve a public notice and comment
process and the preparation of site-specific environmental
documentation.
We are also proposing to clarify that losses of waters of the
United States calculated for purposes of determining NWP eligibility
are limited to losses caused by activities that require Department of
the Army (DA) authorization. Activities that do not require DA
authorization, such as activities eligible for Clean Water Act section
404(f) exemptions or the cutting of vegetation from jurisdictional
wetlands that do not involve discharges of dredged or fill material,
are not considered when calculating losses of waters of the United
States.
Ordinary high water mark. We are proposing to change the regulation
citation in this definition to 33 CFR 328.3(c)(6) to be consistent with
the 2015 revisions to the definition of ``waters of the United States''
in 33 CFR part 328, as published in the June 29, 2015 issue of the
Federal Register.
Riparian areas. We are proposing to change the word ``adjacent'' to
``next'' in the first sentence of this definition because riparian
areas border rivers, streams, and other bodies of water.
Tidal wetland. We are proposing to change the regulation citations
in this definition to 33 CFR 328.3(c)(4) (defining wetlands) and 33 CFR
328.3(d) (defining tidal waters) to be consistent
[[Page 35214]]
with the 2015 revisions to the definition of ``waters of the United
States'' in 33 CFR part 328, as published in the June 29, 2015 issue of
the Federal Register.
Administrative Requirements
Plain Language
In compliance with the principles in the President's Memorandum of
June 1, 1998, (63 FR 31885, June 10, 1998) 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
The paperwork burden associated with the NWP relates exclusively to
the preparation of the PCN. While different NWPs require that different
information be included in a PCN, the Corps estimates that a PCN takes,
on average, 11 hours to complete. The proposed NWPs would increase the
total paperwork burden associated with this program but decrease the
net burden on the public. This is due to the fact that there is new
paperwork burden associated with the inclusion of two new NWP (both of
which have PCN requirements). Since, however, this time would otherwise
be spent on completing an individual permit application, which we
estimate also takes, on average, 11 hours to complete, the net effect
on the public is zero.
The only real change to the public's paperwork burden from this
proposal is a decrease due primarily to a modification to the PCN
requirements for NWPs 33 and 48 and, to a lesser extent, a minor
increase associated with the minor changes we are proposing to the
content required for a complete PCN (see paragraph (b) of general
condition 32).
Specifically, we anticipate a reduction in paperwork burden from
the proposal to require PCNs only for NWP 33 activities in section 10
waters. There will also be a paperwork reduction because of the
proposed change to the PCN thresholds for NWP 48, by eliminating the
requirement to submit a PCN for dredged harvesting, tilling, or
harrowing in areas inhabited by submerged aquatic vegetation. We
estimate that the proposed changes to NWP 33 would result in 210 fewer
PCNs, with an estimated reduction of paperwork burden of 2,310 hours.
The proposed changes to the PCN thresholds for NWP 48 are expected to
result in a reduction of 50 PCNs per year in waters where there are no
listed species or critical habitat that would otherwise trigger the
requirement to submit PCNs because of general condition 18. We estimate
that 50 fewer PCNs will be required for NWP 48 activities, with a
reduction of paperwork burden of 550 hours. Therefore, the estimated
net change in paperwork burden for this proposed rule is an increase of
385 hours per year. Prospective permittees who are required to submit a
PCN 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.
The following table summarizes the projected changes in paperwork
burden for two alternatives relative to the paperwork burden under the
2012 NWPs. The first alternative is this proposal to reissue 50 NWPs
and issue two new NWPs. The second alternative would result if NWPs are
not issued and reissued and regulated entities would have to obtain
standard individual permits to comply with the permit requirements of
section 404 of the Clean Water Act and Section 10 of the Rivers and
Harbors Act of 1899. The 286 standard individual permits included in
the row for the 2012 NWPs represent the standard individual permits
that would be required for activities that would be authorized by the
proposed changes to NWPs 3, 13, 45, and 51 and the two proposed NWPs
(NWPs A and B). The estimated five activities that would require
authorization by standard individual permit under the proposed 2017
NWPs represent surface coal mining activities that were authorized by
paragraph (a) of the 2012 NWP 21 that will not be completed before the
2012 NWP expires and would thus require standard individual permits to
complete the surface coal mining activity.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated
Number of NWP changes in Estimated
Number of NWP activities not Number of SIPs Estimated number of NWP changes in
PCNs per year requiring PCNs per year changes in NWP activities not number of SIPs
per year PCNs per year requiring PCNs per year
per year
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 NWPs............................................... 31,555 31,415 281 .............. .............. ..............
Proposed 2017 NWPs...................................... 31,490 31,636 5 -60 +246 -281
SIPs required if NWPs not reissued...................... 0 0 49,556 .............. .............. ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 is currently under review by OMB).
We request comments on the following subjects:
Whether the collection of information is necessary for the
proper functioning of the Corps, including whether the information will
have practical utility;
The accuracy of the Corps' estimate of the burden of
collecting the information, including the validity of the methodology
and assumptions used;
The quality, utility, and clarity of the information to be
collected; and
How to minimize the information collection burden on those
who are to respond, including the use of appropriate automated,
electronic, mechanical, or other forms of information technology.
We are also seeking comment on the standard form PCN, including its
quality, utility, clarity, and ways to minimize its burden. There will
be a separate Federal Register notice soliciting comment on that NWP
PCN form.
If you want to comment on the information collection requirements
of this proposed rule, please send your comments directly to OMB, with
a copy to the Corps, as directed in the ADDRESSES section of this
preamble. Please identify your comments with ``OMB Control Number 0710-
XXXX.''
[[Page 35215]]
OMB is required to make a decision concerning the collection of
information contained in this proposed rule between 30 to 60 days after
publication of this document in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it by July 1, 2016.
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
under item (4) that the proposed rule is a ``significant regulatory
action'' and the draft proposed rule 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 proposed issuance and modification of NWPs does not
have federalism implications. We do not believe that the proposed 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 proposed NWPs will not impose any additional substantive
obligations on State or local governments. Therefore, Executive Order
13132 does not apply to this proposal.
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
proposed 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 statues under which the Corps issues, reissues, or modifies
nationwide permits 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.
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 five years. If the current NWPs are not reissued, they
will expire on March 18, 2017, and 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, but small entities conducting regulated activities
outside those geographic areas would have to obtain individual permits
for activities that require DA permits.
When compared to the compliance costs for individual permits, most
of the terms and conditions of the proposed NWPs are expected to result
in decreases in the costs of complying with the permit requirements of
sections 10 and 404. The anticipated decrease in compliance cost
results from the lower cost of obtaining NWP authorization instead of
standard permits. Unlike standard permits, NWPs authorize activities
without the requirement for public notice and comment on each proposed
activity.
Another requirement of section 404(e) of the Clean Water Act is
that general permits, including nationwide permits, authorize only
those activities that result in no more than 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 no more than minimal adverse effects on the aquatic
environment and other public interest review factors.
After considering the economic impacts of the proposed nationwide
permits 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 only minimal adverse effects on the
aquatic environment and other public interest review factors. The terms
and conditions of the revised NWPs will not impose substantially higher
costs on small entities than those of the existing 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 to
moderate increase in the number of activities than can be authorized
through NWPs, because we
[[Page 35216]]
are proposing to issue two new NWPs. Because those activities required
authorization through other forms of DA authorization (e.g., individual
permits or regional general permits) we expect a concurrent decrease in
the numbers of individual permit and regional general permit
authorizations required for these activities.
We are interested in the potential impacts of the proposed NWPs on
small entities and welcome comments on issues related to such impacts.
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 proposed NWPs 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 proposed 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, this proposal is not subject to the requirements of sections
202 and 205 of the UMRA. For the same reasons, we have determined that
the proposed NWPs contain 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 significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that we have reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, we must evaluate the environmental health or
safety effects of the proposed rule on children, and explain why the
regulation is preferable to other potentially effective and reasonably
feasible alternatives.
The proposed NWPs are not subject to this Executive Order because
they are not economically significant as defined in Executive Order
12866. In addition, the proposed NWPs do not concern an environmental
health 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 Tribes, on the relationship between the federal government
and the Tribes, or on the distribution of power and responsibilities
between the federal government and Tribes.''
The proposal to issue NWPs does not have tribal implications. It is
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 Tribes, or on the distribution
of power and responsibilities between the federal government and
Tribes. Therefore, Executive Order 13175 does not apply to this
proposal. However, in the spirit of Executive Order 13175, we
specifically request comment from Tribal officials on the proposed
rule. Each Corps district will be conducting government-to-government
consultation with Tribes, to identify regional conditions or other
local NWP modifications that may be necessary to protect aquatic
resources of interest to Tribes, as part of the Corps' responsibility
to protect trust resources.
Environmental Documentation
A draft decision document, which includes a draft environmental
assessment and Finding of No Significant Impact (FONSI) has been
prepared for each proposed NWP. These draft decision documents are
available at: www.regulations.gov (docket ID number COE-2015-0017).
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,
[[Page 35217]]
and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
The proposed NWPs 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 proposing to issue new NWPs, modify existing NWPs, and
reissue 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: May 18, 2016.
Donald E. Jackson,
Major General, U.S. Army, Deputy Commanding General for Civil and
Emergency Operations.
Nationwide Permits, Conditions, Further Information, and Definitions
A. Index of Nationwide Permits, Conditions, District Engineer's
Decision, 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. Response Operations for Oil or Hazardous Substances
21. Surface Coal Mining Activities
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
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. [Reserved]
48. Commercial Shellfish Aquaculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
A. Removal of Low-Head Dams
B. Living Shorelines
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. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Bird and Bald and Golden Eagle Permits
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United States
32. Pre-Construction Notification
District Engineer's Decision
Further Information
Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Direct effects
Discharge
Enhancement
Ephemeral stream
Establishment (creation)
High Tide Line
Historic property
Independent utility
Indirect effects
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 linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Vegetated shallows
Waterbody
[[Page 35218]]
B. Nationwide Permits
1. Aids to Navigation. The placement of aids to navigation and
regulatory markers that 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,
requirements of other regulatory agencies, or current construction
codes or safety standards that are necessary to make the repair,
rehabilitation, or replacement are authorized. This NWP also authorizes
the removal of previously authorized structures or fills. Any stream
channel modification is limited to the minimum necessary for the
repair, rehabilitation, or replacement of the structure or fill; such
modifications, including the removal of material from the stream
channel, must be immediately adjacent to the project or within the
boundaries of the structure or fill. This NWP also 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 existing structures (e.g., bridges,
culverted road crossings, water intake structures, etc.) and/or 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 vicinity of the structure to the approximate dimensions
that existed when the structure was built, but cannot extend farther
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 area that has no waters of the United
States unless otherwise specifically approved by the district engineer
under separate authorization. The placement of new or additional 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,
including the use of temporary mats, 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. After conducting the maintenance activity,
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. This NWP does not authorize 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 32). 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 clam and oyster digging, fish
aggregating devices, 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 and
current gages, meteorological stations, water recording and biological
observation 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. Upon completion of the use of
the device to measure and record scientific data, the measuring device
and any other structures or fills associated with that device (e.g.,
foundations, anchors, buoys, lines, etc.) must be removed to the
maximum extent practicable and the site restored to pre-construction
elevations. (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, sample plots or transects for wetland delineations, 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 and must not drain a water of the United States.
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
\1/10\-acre in waters of the U.S. Discharges and structures associated
with the
[[Page 35219]]
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
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 32.) (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, Bureau of Ocean
Energy Management. 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), as well as 33 CFR 322.5(l) and 33 CFR
part 334. 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 32.) (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 for each single and complete project.
Utility lines: This NWP authorizes discharges of dredged or fill
material into waters of the United States and structures or work in
navigable waters of the United States (i.e., section 10 waters) for
crossings of those waters associated with the construction,
maintenance, or repair of utility lines, including outfall and intake
structures. There must be no change in pre-construction contours of
waters of the United States. 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 internet, 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 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 activity, in combination with all
other activities included in one 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.
[[Page 35220]]
This NWP authorizes, to the extent that DA authorization is
required, temporary structures, fills, and work necessary for the
remediation of inadvertent returns of drilling muds to waters of the
United States through sub-soil fissures or fractures (i.e., frac-outs)
that might occur during horizontal directional drilling activities to
install or replace utility lines. These remediation activities must be
done as soon as practicable, to restore the affected waterbody.
District engineers may add special conditions to this NWP to require a
remediation plan for addressing inadvertent returns of drilling muds to
waters of the United States during horizontal directional drilling
activities for the installation or replacement of utility lines.
This NWP also authorizes temporary structures, fills, and work,
including the use of temporary mats, 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. After construction, 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 or along 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 32.) (Sections
10 and 404)
Note 1: Where the utility line is constructed or installed in
navigable waters of the United States (i.e., section 10 waters)
within the coastal United States, the Great Lakes, and United States
territories, a copy of the 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: For utility line activities crossing a single waterbody
more than one time at separate and distant locations, or multiple
waterbodies at separate and distant locations, each crossing is
considered a single and complete project for purposes of NWP
authorization. Utility lines with independent utility must comply
with 33 CFR 330.6(d).
Note 3: Utility lines consisting of aerial electric power
transmission lines crossing navigable waters of the United States
must comply with the applicable minimum clearances specified in 33
CFR 322.5(i).
Note 4: 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, in accordance with
the requirements for temporary fills.
Note 5: 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).
Note 6: This NWP authorizes utility line maintenance and repair
activities do not qualify for the Clean Water Act section 404(f)
exemption for maintenance of currently serviceable fills or fill
structures.
Note 7: For overhead utility lines authorized by this NWP, a
copy of the PCN and NWP verification will be provided to the
Department of Defense Siting Clearinghouse, which will evaluate
potential effects on military activities.
Note 8: For NWP 12 activities that require pre-construction
notification, the PCN must include 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, including other separate and distant crossings that
require Department of the Army authorization but do not require pre-
construction notification (see paragraph (b) of general condition
32). The district engineer will evaluate the PCN in accordance with
Section D, ``District Engineer's Decision.'' The district engineer
may require mitigation to ensure that the authorized activity
results in no more than minimal individual and cumulative adverse
environmental effects (see general condition 23).
13. Bank Stabilization. Bank stabilization activities necessary for
erosion control or prevention, such as vegetative stabilization, sills,
rip rap, revetment, gabion baskets, stream barbs, and bulkheads, or
combinations of bank stabilization techniques, 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 the district engineer waives this criterion by making a written
determination concluding that the discharge will result in no more than
minimal adverse environmental effects;
(c) The activity will not exceed an average of one cubic yard per
running foot, as measured along the bank, below the plane of the
ordinary high water mark or the high tide line, unless the district
engineer waives this criterion by making a written determination
concluding that the discharge will result in no more than minimal
adverse environmental effects;
(d) The activity does not involve discharges of dredged or fill
material into special aquatic sites, unless the district engineer
waives this criterion by making a written determination concluding that
the discharge will result in no more than minimal adverse environmental
effects;
(e) No material is of a type, or is placed in any location, or in
any manner, that will impair surface water flow into or out of any
waters of the United States;
(f) No material is placed in a manner that will be eroded by normal
or expected high flows (properly anchored native trees and treetops may
be used in low energy areas);
(g) The activity is not a stream channelization activity; and
(h) The activity must be properly maintained, which may require
repairing after severe storms or erosion events. This NWP authorizes
those maintenance and repair activities.
This NWP also authorizes temporary structures, fills, and work
necessary to construct the bank stabilization 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. After
construction, temporary
[[Page 35221]]
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.
Native plants appropriate for current site conditions, including
salinity, must be used for bioengineering or vegetative bank
stabilization.
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; or (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 32.)
(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.
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 32.) (Sections 10 and 404)
Note 1: For linear transportation projects crossing a single
waterbody more than one time at separate and distant locations, or
multiple waterbodies at separate and distant locations, each
crossing is considered a single and complete project for purposes of
NWP authorization. Linear transportation projects with independent
utility must comply with 33 CFR 330.6(d).
Note 2: 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).
Note 3: For NWP 14 activities that require pre-construction
notification, the PCN must include 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, including other separate and distant crossings that
require Department of the Army authorization but do not require pre-
construction notification (see paragraph (b) of general condition
32). The district engineer will evaluate the PCN in accordance with
Section D, ``District Engineer's Decision.'' The district engineer
may require mitigation to ensure that the authorized activity
results in no more than minimal individual and cumulative adverse
environmental effects (see general condition 23).
15. U.S. Coast Guard Approved Bridges. Discharges of dredged or
fill material incidental to the construction of a bridge across
navigable waters of the United States, including cofferdams, abutments,
foundation seals, piers, and temporary construction and access fills,
provided the construction of the bridge structure has been authorized
by the U.S. Coast Guard under section 9 of the Rivers and Harbors Act
of 1899 or other applicable laws. 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 in an area that has no waters of the United
States 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 32.) (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 32.) (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
[[Page 35222]]
United States (see 33 CFR 322.5(g)). All dredged material must be
deposited and retained in an area that has no waters of the United
States unless otherwise specifically approved by the district engineer
under separate authorization. (Sections 10 and 404)
20. Response Operations for Oil or Hazardous Substances. Activities
conducted in response to a discharge or release of oil or hazardous
substances that are subject to the National Oil and Hazardous
Substances Pollution Contingency Plan (40 CFR part 300) including
containment, cleanup, and mitigation efforts, provided that the
activities are done under either: (1) The Spill Control and
Countermeasure Plan required by 40 CFR 112.3; (2) the direction or
oversight of the federal on-scene coordinator designated by 40 CFR part
300; or (3) any approved existing state, regional or local contingency
plan provided that the Regional Response Team (if one exists in the
area) concurs with the proposed response efforts. 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. This NWP also authorizes the use of temporary structures and
fills in waters of the U.S. for spill response training exercises.
(Sections 10 and 404)
21. Surface Coal Mining Activities. Discharges of dredged or fill
material into waters of the United States associated with surface coal
mining and reclamation operations, provided the following criteria are
met:
(1) The activities are already authorized, or are currently being
processed by states with approved programs under Title V of the Surface
Mining Control and Reclamation Act of 1977 or as part of an integrated
permit processing procedure by the Department of the Interior, Office
of Surface Mining Reclamation and Enforcement;
(2) The discharge must not cause the loss of greater than \1/2\-
acre of non-tidal waters of the United States. The discharge must not
cause the loss of more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds the district engineer waives the
300 linear foot limit by making a written determination concluding that
the discharge will result in no more than minimal individual and
cumulative adverse environmental effects. The loss of stream bed plus
any other losses of jurisdictional wetlands and waters caused by the
NWP activity cannot exceed \1/2\-acre. This NWP does not authorize
discharges into tidal waters or non-tidal wetlands adjacent to tidal
waters; and
(3) The discharge is not associated with the construction of valley
fills. A ``valley fill'' is a fill structure that is typically
constructed within valleys associated with steep, mountainous terrain,
associated with surface coal mining activities.
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 32.) (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 32.) 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 18, Endangered
Species, and general condition 20, Historic Properties, is required
for all NWPs. The concern with historic properties is emphasized in
the notification requirements for this NWP because of the
possibility that shipwrecks 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 the requirement to prepare an
environmental impact statement or environmental assessment analysis,
because it is included within a category of actions which neither
individually nor 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 32). 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/Portals/2/docs/civilworks/RGLS/rgl05-07.pdf. 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 Public Law 94-587, 90
Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.4(b)).
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
[[Page 35223]]
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 separate 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, the restoration and enhancement of non-
tidal streams and other non-tidal open waters, and the rehabilitation
or enhancement of tidal streams, tidal wetlands, and 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, as well as discharges
of dredged or fill material to restore appropriate stream channel
configurations after small water control structures, dikes, and berms,
are removed; 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; the removal of existing drainage
structures, such as drain tiles, and the filling, blocking, or
reshaping of drainage ditches to restore wetland hydrology; the
installation of structures or fills necessary to establish or re-
establish wetland or stream hydrology; 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; re-establishment of submerged aquatic vegetation in
areas where those plant communities previously existed; re-
establishment of tidal wetlands in tidal waters where those wetlands
previously existed; 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., the conversion of a
stream to wetland or vice versa) or uplands. Changes in wetland plant
communities that occur when wetland hydrology is more fully restored
during wetland rehabilitation activities are not considered a
conversion to another aquatic habitat type. 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.
Compensatory mitigation is not required for activities authorized
by this NWP since these activities must result in net increases in
aquatic resource functions and services.
Reversion. For enhancement, restoration, and establishment
activities conducted: (1) In accordance with the terms and conditions
of a binding stream or wetland enhancement or restoration agreement, or
a wetland 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), U.S. Forest
Service (USFS), 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 Office of Surface Mining
Reclamation and Enforcement (OSMRE) 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,
USFS, 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 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 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 results 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 stream enhancement or restoration
agreement or 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 stream enhancement or restoration
action or wetland restoration, enhancement, or establishment action; or
(3) the SMCRA permit issued by OSMRE or the
[[Page 35224]]
applicable state agency. The report must also include information on
baseline ecological conditions on the project site, such as a
delineation of wetlands, streams, and/or other aquatic habitats. 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 any activity
(see general condition 32), 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 stream
enhancement or restoration agreement or wetland enhancement,
restoration, or establishment agreement between the landowner and the
FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state cooperating
agencies;
(2) Voluntary stream or wetland restoration or enhancement action,
or wetland establishment action, 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 OSMRE or the applicable state agency.
However, the permittee must submit a copy of the appropriate
documentation to the district engineer to fulfill the reporting
requirement. (Sections 10 and 404)
Note: This NWP can be used to authorize compensatory mitigation
projects, including mitigation banks and in-lieu fee projects.
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. The discharge must not cause the
loss of more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds the district engineer waives the
300 linear foot limit by making a written determination concluding that
the discharge will result in no more than minimal adverse environmental
effects. This NWP does not authorize discharges into non-tidal wetlands
adjacent to tidal waters. The loss of stream bed plus any other losses
of jurisdictional wetlands and waters caused by the NWP activity cannot
exceed \1/2\-acre.
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 32.) (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, or 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. To
the extent that a Corps permit is required, this NWP authorizes the
removal of vegetation from levees associated with the flood control
project. 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 area that has no waters of the United
States or a separately 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 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
[[Page 35225]]
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 adverse environmental impacts are no more than
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 32). 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 activities authorized by this NWP cannot adversely affect
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 material may be allowed if the district engineer determines
that it will not cause more than minimal adverse environmental effects.
Following completion of construction, temporary fill must be entirely
removed to an area that has no waters of the United States, 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
[[Page 35226]]
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 separate 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
if the activity is conducted in navigable waters of the United States
(i.e., section 10 waters) (see general condition 32). 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 32.) (Section
404)
35. Maintenance Dredging of Existing Basins. The 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. All dredged material must be placed in an area that has no
waters of the United States or in a separately authorized disposal site
in waters of the United States. Proper siltation controls must be used
for the disposal site. (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
district engineer waives the 50 cubic yard limit by making a written
determination concluding that the discharge will result in no more than
minimal adverse environmental effects;
(b) The boat ramp does not exceed 20 feet in width, unless the
district engineer waives this criterion by making a written
determination concluding that the discharge will result in no more than
minimal adverse environmental effects;
(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 an area that has
no waters of the United States; 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 must 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 32.) (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 2509.13);
(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 or 45 calendar days have
passed 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 and 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: Except in cases where there is an unacceptable hazard
to life or a significant loss of property or economic hardship will
occur, the permittee must submit a pre-construction notification to the
district engineer prior to commencing the activity (see general
condition 32). (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 32.) (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
[[Page 35227]]
not limited to, roads, parking lots, garages, yards, utility lines,
storm water management facilities, wastewater treatment facilities, and
recreation facilities such as playgrounds and playing fields. Examples
of commercial developments include retail stores, industrial
facilities, restaurants, business parks, and shopping centers. Examples
of institutional developments include schools, fire stations,
government office buildings, judicial buildings, public works
buildings, libraries, hospitals, and places of worship. The
construction of new golf courses and new ski areas 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. The discharge must not cause the
loss of more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds the district engineer waives the
300 linear foot limit by making a written determination concluding that
the discharge will result in only minimal adverse environmental
effects. The loss of stream bed plus any other losses of jurisdictional
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre. 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 32.) (Sections 10 and 404)
Note: For any activity that involves the construction of a wind
energy generating structure, solar tower, or overhead transmission
line, a copy of the PCN and NWP verification will be provided to the
Department of Defense Siting Clearinghouse, which will evaluate
potential effects on military activities.
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. The discharge must not cause the
loss of more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds the district engineer waives the
300 linear foot limit by making a written determination concluding that
the discharge will result in no more than minimal adverse environmental
effects. The loss of stream bed plus any other losses of jurisdictional
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre. 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 32.) (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. (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. The discharge must not cause the
loss of more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds the district engineer waives the
300 linear foot limit by making a written determination concluding that
the discharge will result in no more than minimal adverse environmental
effects. The loss of stream bed plus any other losses of jurisdictional
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre. 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 32.) (Section 404)
43. Stormwater Management Facilities. Discharges of dredged or fill
material into non-tidal waters of the United States for the
construction of stormwater management facilities, including stormwater
detention basins and retention basins and other stormwater management
facilities; the construction of water control structures, outfall
structures and emergency spillways; and the construction of low impact
development integrated management features such as bioretention
facilities (e.g., rain gardens), vegetated filter strips, grassed
swales, and infiltration trenches. This NWP also authorizes, to the
extent that a section 404 permit is required, discharges of dredged or
fill material into non-tidal waters of the United States for the
maintenance of stormwater management facilities. Note that stormwater
management facilities that meet the criteria at 33 CFR part 328.3(b)(6)
are not waters of the United States, and maintenance of these waste
[[Page 35228]]
treatment systems does not require a section 404 permit.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. The discharge must not cause the
loss of more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds the district engineer waives the
300 linear foot limit by making a written determination concluding that
the discharge will result in no more than minimal adverse environmental
effects. This NWP does not authorize discharges into non-tidal wetlands
adjacent to tidal waters. The loss of stream bed plus any other losses
of jurisdictional wetlands and waters caused by the NWP activity cannot
exceed \1/2\-acre. 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 32.) 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, provided the activity meets all of the
following criteria:
(a) For mining activities involving discharges of dredged or fill
material into non-tidal wetlands, the discharge must not cause the loss
of greater than \1/2\-acre of non-tidal wetlands;
(b) For mining activities involving discharges of dredged or fill
material in non-tidal open waters (e.g., rivers, streams, lakes, and
ponds) the mined area, including permanent and temporary impacts due to
discharges of dredged or fill material into jurisdictional waters, must
not exceed \1/2\-acre; and
(c) The acreage loss under paragraph (a) plus the acreage impact
under paragraph (b) does not exceed \1/2\-acre.
The discharge must not cause the loss of more than 300 linear feet
of stream bed, unless for intermittent and ephemeral stream beds the
district engineer waives the 300 linear foot limit by making a written
determination concluding that the discharge will result in minimal
adverse effects.
The loss of stream bed plus any other losses of jurisdictional
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre.
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 32.) If reclamation is required by other
statutes, then a copy of the final 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.
This NWP does not authorize beach restoration or nourishment.
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 32) within
12 months of the date of the damage; for major storms, floods, or other
discrete events, the district engineer may waive the 12-month limit for
submitting a pre-construction notification if the permittee can
demonstrate funding, contract, or other similar delays. The pre-
construction notification must include documentation, such as a recent
topographic survey or photographs, to justify the extent of the
proposed restoration. (Sections 10 and 404)
Note: The uplands themselves that are 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.) This NWP authorizes discharges of
dredged or fill material into waters of the United States associated
with the restoration of uplands.
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) 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 32.) (Section 404)
47. [Reserved]
48. Commercial Shellfish Aquaculture Activities. Discharges of
dredged or fill material in waters of the United States or structures
or work in navigable waters of the United States necessary for new and
continuing commercial shellfish aquaculture operations in authorized
project areas. For the purposes of this NWP, the project area is the
area in which the operator is authorized to conduct commercial
shellfish aquaculture activities, as identified through a lease or
permit issued by an appropriate state or local government agency, a
treaty, or any easement, lease, deed, contract, or other legally
binding agreement that establishes an enforceable property interest for
the operator. A ``new commercial shellfish aquaculture operation'' is
an operation in an area where commercial shellfish aquaculture
activities have not been conducted during the past 100 years.
This NWP authorizes the installation of buoys, floats, racks,
trays, nets, lines, tubes, containers, and other structures into
navigable waters of the United States. This NWP also authorizes
discharges of dredged or fill material into waters of the United States
necessary for shellfish seeding, rearing, cultivating, transplanting,
and
[[Page 35229]]
harvesting activities. Rafts and other floating structures must be
securely anchored and clearly marked.
This NWP does not authorize:
(a) The cultivation of a nonindigenous species unless that species
has been previously cultivated in the waterbody;
(b) The cultivation of an aquatic nuisance species as defined in
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990;
(c) Attendant features such as docks, piers, boat ramps,
stockpiles, or staging areas, or the deposition of shell material back
into waters of the United States as waste; or
(d) Activities that directly affect more than \1/2\-acre of
submerged aquatic vegetation beds in areas that have not been used for
commercial shellfish aquaculture activities during the past 100 years.
Notification: The permittee must submit a pre-construction
notification to the district engineer if: (1) The activity will include
a species that has never been cultivated in the waterbody; or (2) the
activity occurs in an area that has not been used for commercial
shellfish aquaculture activities during the past 100 years. (See
general condition 32.)
In addition to the information required by paragraph (b) of general
condition 32, the pre-construction notification must also include the
following information: (1) A map showing the boundaries of the project
area, with latitude and longitude coordinates for each corner of the
project area; (2) the name(s) of the species that will be cultivated
during the period this NWP is in effect; (3) whether canopy predator
nets will be used; (4) whether suspended cultivation techniques will be
used; and (5) general water depths in the project area (a detailed
survey is not required). (Sections 10 and 404)
Note 1: The permittee should notify the applicable U.S. Coast
Guard office regarding the project.
Note 2: To prevent introduction of aquatic nuisance species, no
material that has been taken from a different waterbody may be
reused in the current project area, unless it has been treated in
accordance with the applicable regional aquatic nuisance species
management plan.
Note 3: The Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990 defines ``aquatic nuisance species'' as ``a
nonindigenous species that threatens the diversity or abundance of
native species or the ecological stability of infested waters, or
commercial, agricultural, aquacultural, or recreational activities
dependent on such waters.''
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.
The activities must already be authorized, or they must currently be in
process as part of an integrated permit processing procedure, by the
Department of the Interior Office of Surface Mining Reclamation and
Enforcement, or by states with approved programs under Title IV or
Title V of the Surface Mining Control and Reclamation Act of 1977
(SMCRA). Areas previously mined include reclaimed mine sites, abandoned
mine land areas, or lands under bond forfeiture contracts.
As part of the project, the permittee may conduct new coal mining
activities in conjunction with the remining activities when he or she
clearly demonstrates to the district engineer that the overall mining
plan will result in a net increase in aquatic resource functions. The
Corps will consider the SMCRA agency's decision regarding the amount of
currently undisturbed adjacent lands needed to facilitate the remining
and reclamation of the previously mined area. The total area disturbed
by new mining must not exceed 40 percent of the total acreage covered
by both the remined area and the additional area necessary to carry out
the reclamation of the previously mined area.
Notification: The permittee must submit a pre-construction
notification and a document describing how the overall mining plan will
result in a net increase in aquatic resource functions to the district
engineer and receive written authorization prior to commencing the
activity. (See general condition 32.) (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 the
Interior, Office of Surface Mining Reclamation and Enforcement, or by
states with approved programs under Title V of the Surface Mining
Control and Reclamation Act of 1977.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. The discharge must not cause the
loss of more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds the district engineer waives the
300 linear foot limit by making a written determination concluding that
the discharge will result in no more than minimal adverse environmental
effects. The loss of stream bed plus any other losses of jurisdictional
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre. 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 32.) 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.
51. Land-Based Renewable Energy Generation Facilities. Discharges
of dredged or fill material into non-tidal waters of the United States
for the construction, expansion, or modification of land-based
renewable energy production facilities, including attendant features.
Such facilities include infrastructure to collect solar (concentrating
solar power and photovoltaic), wind, biomass, or geothermal energy.
Attendant features may include, but are not limited to roads, parking
lots, and stormwater management facilities within the land-based
renewable energy generation facility.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. The discharge must not cause the
loss of more than 300 linear feet of stream bed, unless for
intermittent and ephemeral stream beds the district engineer waives the
300 linear foot limit by making a written determination concluding that
the discharge will result in no more than minimal adverse environmental
effects. The loss of stream bed plus any other losses of jurisdictional
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre. This permit 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 32.) (Sections 10 and 404)
Note 1: Utility lines constructed to transfer the energy from
the land-based renewable energy generation facility to a
distribution system, regional grid, or other facility are generally
considered to be linear projects and
[[Page 35230]]
each separate and distant crossing of a waterbody is eligible for
treatment as a separate single and complete linear project. Those
utility lines may be authorized by NWP 12 or another Department of
the Army authorization.
Note 2: If the only activities associated with the construction,
expansion, or modification of a land-based renewable energy
generation facility that require Department of the Army
authorization are discharges of dredged or fill material into waters
of the United States to construct, maintain, repair, and/or remove
utility lines and/or road crossings, then NWP 12 and/or NWP 14 shall
be used if those activities meet the terms and conditions of NWPs 12
and 14, including any applicable regional conditions and any case-
specific conditions imposed by the district engineer.
Note 3: For any activity that involves the construction of a
wind energy generating structure, solar tower, or overhead
transmission line, a copy of the PCN and NWP verification will be
provided to the Department of Defense Siting Clearinghouse, which
will evaluate potential effects on military activities.
52. Water-Based Renewable Energy Generation Pilot Projects.
Structures and work in navigable waters of the United States and
discharges of dredged or fill material into waters of the United States
for the construction, expansion, modification, or removal of water-
based wind, water-based solar, or hydrokinetic renewable energy
generation projects and their attendant features. Attendant features
may include, but are not limited to, land-based collection and
distribution facilities, control facilities, roads, parking lots, and
stormwater management facilities.
For the purposes of this NWP, the term ``pilot project'' means an
experimental project where the renewable energy generation units will
be monitored to collect information on their performance and
environmental effects at the project site.
The discharge must not cause the loss of greater than \1/2\-acre of
waters of the United States, including the loss of more than 300 linear
feet of stream bed, unless for intermittent and ephemeral stream beds
the district engineer waives the 300 linear foot limit by making a
written determination concluding that the discharge will result in no
more than minimal adverse environmental effects. The placement of a
transmission line on the bed of a navigable water of the United States
from the renewable energy generation unit(s) to a land-based collection
and distribution facility is considered a structure under Section 10 of
the Rivers and Harbors Act of 1899 (see 33 CFR 322.2(b)), and the
placement of the transmission line on the bed of a navigable water of
the United States is not a loss of waters of the United States for the
purposes of applying the \1/2\-acre or 300 linear foot limits.
For each single and complete project, no more than 10 generation
units (e.g., wind turbines or hydrokinetic devices) are authorized. For
floating solar panels in navigable waters of the United States, each
single and complete project cannot exceed \1/2\-acre in water surface
area covered by the floating solar panels.
This NWP does not authorize activities in coral reefs. Structures
in an anchorage area established by the U.S. Coast Guard must comply
with the requirements in 33 CFR 322.5(l)(2). Structures may not be
placed in established danger zones or restricted areas as designated in
33 CFR part 334, Federal navigation channels, shipping safety fairways
or traffic separation schemes established by the U.S. Coast Guard (see
33 CFR 322.5(l)(1)), or EPA or Corps designated open water dredged
material disposal areas.
Upon completion of the pilot project, the generation units,
transmission lines, and other structures or fills associated with the
pilot project must be removed to the maximum extent practicable unless
they are authorized by a separate Department of the Army authorization,
such as another NWP, an individual permit, or a regional general
permit. Completion of the pilot project will be identified as the date
of expiration of the Federal Energy Regulatory Commission (FERC)
license, or the expiration date of the NWP authorization if no FERC
license is issued.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Sections 10 and 404)
Note 1: Utility lines constructed to transfer the energy from
the land-based collection facility to a distribution system,
regional grid, or other facility are generally considered to be
linear projects and each separate and distant crossing of a
waterbody is eligible for treatment as a separate single and
complete linear project. Those utility lines may be authorized by
NWP 12 or another Department of the Army authorization.
Note 2: An activity that is located on an existing locally or
federally maintained U.S. Army Corps of Engineers project requires
separate approval from the Chief of Engineers or District Engineer
under 33 U.S.C. 408.
Note 3: If the pilot project, including any transmission lines,
are placed in navigable waters of the United States (i.e., section
10 waters) within the coastal United States, the Great Lakes, and
United States territories, copies of the pre-construction
notification and NWP verification will be sent by the Corps to the
National Oceanic and Atmospheric Administration, National Ocean
Service, for charting the generation units and associated
transmission line(s) to protect navigation.
Note 4: Hydrokinetic renewable energy generation projects that
require authorization by the Federal Energy Regulatory Commission
under the Federal Power Act of 1920 do not require separate
authorization from the Corps under section 10 of the Rivers and
Harbors Act of 1899.
Note 5: For any activity that involves the construction of a
wind energy generating structure, solar tower, or overhead
transmission line, a copy of the PCN and NWP verification will be
provided to the Department of Defense Siting Clearinghouse, which
will evaluate potential effects on military activities.
Proposed NWP A. Removal of Low-Head Dams. Structures and work in
navigable waters of the United States and discharges of dredged or fill
material into waters of the United States associated with the removal
of low head dams. For the purposes of this NWP, the term ``low-head
dam'' is defined as a dam built across a stream to pass flows from
upstream over the entire width of the dam crest on an uncontrolled
basis.
All of the removed dam structures must be deposited and retained in
an area that has no waters of the United States unless otherwise
specifically approved by the district engineer under separate
authorization.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Sections 10 and 404)
Proposed NWP B. Living Shorelines. Living shoreline bank
stabilization activities in navigable waters of the United States and
discharges of dredged or fill material into waters of the United States
for the construction and maintenance of living shorelines to stabilize
banks and shores in low- to mid-energy coastal waters and lakes.
``Living shoreline'' is a broad term that encompasses a range of
shoreline stabilization techniques along estuarine coasts, bays,
sheltered coastlines, and tributaries. A living shoreline has a
footprint that is made up mostly of native material. It incorporates
vegetation or other living, natural ``soft'' elements alone or in
combination with some type of harder shoreline structure (e.g., oyster
reefs or rock sills) for added stability. Living shorelines should
maintain the natural continuity of the land-water interface, and retain
or enhance shoreline ecological processes. Living shorelines must have
a substantial biological component, either
[[Page 35231]]
tidal or lacustrine fringe wetlands or reef structures. The following
conditions must be met:
(a) The structures and fill area, including sills, breakwaters, or
reefs, cannot extend into the waterbody more than 30 feet from the mean
high water line or ordinary high water mark, unless the district
engineer waives this criterion by making a written determination
concluding that the activity will result in no more than minimal
adverse environmental effects;
(b) The activity is no more than 500 feet in length along the bank,
unless the district engineer waives this criterion by making a written
determination concluding that the activity will result in no more than
minimal adverse environmental effects;
(c) Coir logs, coir mats, stone, native oyster shell, native wood
debris and other structural materials must be adequately anchored, of
sufficient weight, or installed in a manner that prevents relocation in
most wave action or water flow conditions, except for extremely severe
storms;
(d) For living shorelines consisting of tidal or lacustrine fringe
wetlands, native plants appropriate for current site conditions,
including salinity, must be used;
(e) Discharges of dredged or fill material into waters of the
United States, and reef structures in navigable waters, must be the
minimum necessary for the establishment and maintenance of the living
shoreline;
(f) The activity must be designed, constructed, and maintained so
that it has no more than minimal adverse effects on water movement
between the waterbody and the shore and the movement of aquatic
organisms between the waterbody and the shore;
(g) The activity does not involve discharges of dredged or fill
material into special aquatic sites, unless the district engineer
waives this criterion by making a written determination concluding that
the discharge will result in no more than minimal adverse environmental
effects; and
(h) The living shoreline must be properly maintained as a living
shoreline, which may require repairing sills, breakwaters, and reefs,
replacing sand fills, and replanting vegetation after severe storms or
erosion events. This NWP authorizes those maintenance and repair
activities to the original permitted conditions.
This NWP does not authorize beach nourishment or land reclamation
activities.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the
construction of the living shoreline. (See general condition 32.) The
pre-construction notification must include a delineation of special
aquatic sites (see paragraph (b)(4) of general condition 32). Pre-
construction notification is not required for maintenance and repair
activities for living shorelines unless required by applicable NWP
general conditions or regional conditions. (Sections 10 and 404)
C. Nationwide Permit General Conditions
Note: To qualify for NWP authorization, the prospective
permittee must comply with the following general conditions, as
applicable, 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. Every person who may wish to obtain permit
authorization under one or more NWPs, or who is currently relying on
an existing or prior permit authorization under one or more NWPs,
has been and is on notice that all of the provisions of 33 CFR 330.1
through 330.6 apply to every NWP authorization. Note especially 33
CFR 330.5 relating to the modification, suspension, or revocation of
any NWP authorization.
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. All permanent and temporary crossings of waterbodies
shall be suitably culverted, bridged, or otherwise designed and
constructed to maintain low flows to sustain the movement of those
aquatic species.
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, or is a
shellfish seeding or habitat restoration activity authorized by NWP 27.
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 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
[[Page 35232]]
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, or during low
tides.
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 and
compliance with applicable NWP general conditions, as well as any
activity-specific conditions added by the district engineer to an NWP
authorization.
15. 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.
16. Wild and Scenic Rivers. (a) 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.
(b) If a proposed NWP activity will 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, the
permittee must submit a pre-construction notification (see general
condition 32). The district engineer will coordinate the PCN with the
Federal agency with direct management responsibility for that river.
The permittee shall not begin the NWP activity until notified by the
district engineer that the Federal agency with direct management
responsibility for that river has determined in writing that the
proposed NWP activity will not adversely affect the Wild and Scenic
River designation or study status.
(c) Information on Wild and Scenic Rivers may be obtained from the
appropriate Federal land management agency responsible for the
designated Wild and Scenic River or study river (e.g., National Park
Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and
Wildlife Service). Information on these rivers is also available at:
http://www.rivers.gov/.
17. 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.
18. Endangered Species. (a) No activity is authorized under any NWP
which is likely to directly or indirectly 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 directly or indirectly 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. Direct effects are the
immediate effects on listed species and critical habitat caused by the
NWP activity. Indirect effects are those effects on listed species and
critical habitat that are caused by the NWP activity and are later in
time, but still are reasonably certain to occur.
(b) Federal agencies should follow their own procedures for
complying with the requirements of the ESA. If pre-construction
notification is required for the proposed activity, Federal permittees
must provide the district engineer with the appropriate documentation
to demonstrate compliance with those requirements. The district
engineer will verify that the appropriate documentation has been
submitted. If the appropriate documentation has not been submitted,
additional ESA section 7 consultation may be necessary for the activity
and the respective federal agency would be responsible for fulfilling
its obligation under section 7 of the ESA.
(c) Non-federal permittees must submit a pre-construction
notification to the district engineer if any listed species or
designated critical habitat might be affected or is in the vicinity of
the activity, or if the activity 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 might be affected
by the proposed activity or that utilize the designated critical
habitat that might 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 activity, 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.
If the non-Federal applicant has not heard back from the Corps within
45 days, the applicant must still wait for notification from the Corps.
(d) As a result of formal or informal consultation with the FWS or
NMFS the district engineer may add species-specific permit 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 FWS or the NMFS, the Endangered Species Act prohibits any
person subject to the jurisdiction of the United States to take a
listed species, where ``take'' means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct. The word ``harm'' in the definition of ``take''
means an act which actually kills or injures wildlife. Such an act may
include significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential
behavioral patterns,
[[Page 35233]]
including breeding, feeding or sheltering.
(f) Information on the location of threatened and endangered
species and their critical habitat can be obtained directly from the
offices of the FWS and NMFS or their world wide Web pages at http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.nmfs.noaa.gov/pr/species/esa/ respectively.
19. Migratory Birds and Bald and Golden Eagles. The permittee is
responsible for ensuring their action complies with the Migratory Bird
Treaty Act and the Bald and Golden Eagle Protection Act. The permittee
is responsible for contacting appropriate local office of the U.S. Fish
and Wildlife Service to determine applicable measures to reduce impacts
to migratory birds or eagles, including whether ``incidental take''
permits are necessary and available under the Migratory Bird Treaty Act
or Bald and Golden Eagle Protection Act for a particular activity.
20. 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. If pre-construction notification is required for the
proposed NWP activity, Federal permittees must provide the district
engineer with the appropriate documentation to demonstrate compliance
with those requirements. The district engineer will verify that the
appropriate documentation has been submitted. If the appropriate
documentation is not submitted, then additional consultation under
section 106 may be necessary. The respective federal agency is
responsible for fulfilling its obligation to comply with section 106.
(c) Non-federal permittees must submit a pre-construction
notification to the district engineer if the activity may have the
potential to cause effects to any historic properties listed on,
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 Historic Preservation Officer or Tribal Historic
Preservation Officer, as appropriate, and the National Register of
Historic Places (see 33 CFR 330.4(g)). When reviewing pre-construction
notifications, district engineers will comply with the current
procedures for addressing the requirements of Section 106 of the
National Historic Preservation Act. 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 on 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. If the non-Federal applicant has not heard
back from the Corps within 45 days, the applicant must still wait for
notification from the Corps.
(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,
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.
21. Discovery of Previously Unknown Remains and Artifacts. If you
discover any previously unknown historic, cultural or archeological
remains and artifacts while accomplishing the activity authorized by
this permit, you must immediately notify the district engineer of what
you have found, and to the maximum extent practicable, avoid
construction activities that may affect the remains and artifacts until
the required coordination has been completed. The district engineer
will initiate the Federal, Tribal and state coordination required to
determine if the items or remains warrant a recovery effort or if the
site is eligible for listing in the National Register of Historic
Places.
22. Designated Critical Resource Waters. Critical resource waters
include, NOAA-managed marine sanctuaries and marine monuments, and
National Estuarine Research Reserves. The district engineer may
designate, after notice and opportunity for public comment, additional
waters officially designated by a state as having particular
environmental or ecological significance, such as outstanding national
resource waters or state natural heritage sites. The district engineer
may also designate additional critical resource waters after notice and
opportunity for public 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, 50, 51, and 52 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, 38, and proposed NWP B, notification is required in
accordance with general condition 32, for any activity proposed
[[Page 35234]]
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.
23. Mitigation. The district engineer will consider the following
factors when determining appropriate and practicable mitigation
necessary to ensure that the individual and cumulative adverse
environmental effects are no more than 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 for resource losses) will be required to the
extent necessary to ensure that the individual and cumulative adverse
environmental effects are no more than 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 either some other form of mitigation would be more
environmentally appropriate or the adverse environmental effects of the
proposed activity are no more than minimal, and provides an activity-
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 only
minimal adverse environmental effects.
(d) For losses of streams or other open waters that require pre-
construction notification, the district engineer may require
compensatory mitigation to ensure that the activity results in no more
than minimal adverse environmental effects. Compensatory mitigation for
losses of streams should be provided through stream rehabilitation,
enhancement, or preservation, since streams are difficult-to-replace
resources (see 33 CFR 332.3(e)(3)).
(e) Compensatory mitigation plans for NWP activities in or near
streams or other open waters will normally include a requirement for
the restoration or enhancement, maintenance, and legal protection
(e.g., conservation easements) of riparian areas next to open waters.
In some cases, the restoration of riparian areas may be the only
compensatory mitigation required. Restored 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. If it is not possible to establish a riparian area on both
sides of a stream, or if the waterbody is a lake or coastal waters,
then restoring or establishing a riparian area along a single bank or
shoreline may be sufficient. 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 compensatory mitigation for wetland losses.
(f) Compensatory mitigation projects provided to offset losses of
aquatic resources must comply with the applicable provisions of 33 CFR
part 332.
(1) The prospective permittee is responsible for proposing an
appropriate compensatory mitigation option if compensatory mitigation
is necessary to ensure that the activity results in no more than
minimal adverse environmental effects. For the NWPs, the preferred
mechanism for providing compensatory mitigation is mitigation bank
credits or in-lieu fee program credits (see 33 CFR 332.3(b)(2) and
(3)).
(2) Since the likelihood of success is greater and the impacts to
potentially valuable uplands are reduced, restoration of these areas
should be the first compensatory mitigation option considered.
(3) If permittee-responsible mitigation is the proposed option, the
prospective permittee is responsible for submitting a mitigation plan.
A conceptual or detailed mitigation plan may be used by the district
engineer to make the decision on the NWP verification request, but a
final mitigation plan that addresses the applicable requirements of 33
CFR 332.4(c)(2) through (14) must be approved by the district engineer
before the permittee begins work in waters of the United States, unless
the district engineer determines that prior approval of the final
mitigation plan is not practicable or not necessary to ensure timely
completion of the required compensatory mitigation (see 33 CFR
332.3(k)(3)).
(4) If mitigation bank or in-lieu fee program credits are the
proposed option, the mitigation plan only needs to address the baseline
conditions at the impact site and the number of credits to be provided.
(5) Compensatory mitigation requirements (e.g., resource type and
amount to be provided as compensatory mitigation, site protection,
ecological performance standards, monitoring requirements) may be
addressed through conditions added to the NWP authorization, instead of
components of a compensatory mitigation plan.
(g) 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 NWP activity 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 an NWP activity already meeting the established acreage limits
also satisfies the no more than minimal impact requirement for the
NWPs.
(h) Permittees may propose the use of mitigation banks, in-lieu fee
programs, or permittee-responsible mitigation. For activities resulting
in the loss of marine or estuarine resources, permittee-responsible
mitigation may be environmentally preferable if there are no mitigation
banks or in-lieu fee programs in the area that have marine or estuarine
credits available for sale or transfer to the permittee. For permittee-
responsible mitigation, the special conditions of the NWP verification
must clearly indicate the party or parties responsible for the
implementation and performance of the compensatory mitigation project,
and, if required, its long-term management.
(i) Where certain functions and services of waters of the United
States are permanently adversely affected by a regulated activity, such
as discharges of dredged or fill material into waters of the United
States that will convert 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 environmental
effects of the activity to the no more than minimal level.
24. Safety of Impoundment Structures. To ensure that all
impoundment structures are safely
[[Page 35235]]
designed, the district engineer may require non-Federal applicants to
demonstrate that the structures comply with established state dam
safety criteria or have been designed by qualified persons. The
district engineer may also require documentation that the design has
been independently reviewed by similarly qualified persons, and
appropriate modifications made to ensure safety.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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)
30. Compliance Certification. Each permittee who receives an NWP
verification letter from the Corps must provide a signed certification
documenting completion of the authorized activity and implementation of
any required compensatory mitigation. The success of any required
permittee-responsible mitigation, including the achievement of
ecological performance standards, will be addressed separately by the
district engineer. The Corps will provide the permittee the
certification document with the NWP verification letter. The
certification document will include:
(a) A statement that the authorized activity was done in accordance
with the NWP authorization, including any general, regional, or
activity-specific conditions;
(b) A statement that the implementation of any required
compensatory mitigation was completed in accordance with the permit
conditions. If credits from a mitigation bank or in-lieu fee program
are used to satisfy the compensatory mitigation requirements, the
certification must include the documentation required by 33 CFR
332.3(l)(3) to confirm that the permittee secured the appropriate
number and resource type of credits; and
(c) The signature of the permittee certifying the completion of the
activity and mitigation.
The completed certification document must be submitted to the
district engineer within 30 days of completion of the authorized
activity or the implementation of any required compensatory mitigation.
31. Activities Affecting Structures or Works Built by the United
States. If an NWP activity also requires permission from the Corps
pursuant to 33 U.S.C. 408 because it will alter or temporarily or
permanently occupy or use a U.S. Army Corps of Engineers (USACE)
federally authorized Civil Works project (a ``USACE project''), the
prospective permittee must submit a pre-construction notification. See
paragraph (b)(10) of general condition 32. An activity that requires
section 408 permission is not authorized by NWP until the appropriate
Corps district office issues the section 408 permission to alter,
occupy, or use the USACE project, and the district engineer issues a
written NWP verification.
32. 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, if the
PCN is determined to be incomplete, notify the prospective permittee
within that 30 day period to request the additional information
necessary to make the PCN complete. The request must specify the
information needed to make the PCN complete. As a general rule,
district engineers 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 until either:
(1) He or she is 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) 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 18 that listed species or critical habitat might be
affected or in the vicinity of the activity, or to notify the Corps
pursuant to general condition 20 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 there is
[[Page 35236]]
``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)) has been
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 may not 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 activity;
(3) Identify the specific NWP or NWP(s) the prospective permittee
wants to use to authorize the proposed activity;
(4) A description of the proposed activity; the activity's purpose;
direct and indirect adverse environmental effects the activity would
cause, including the anticipated amount of loss of water of the United
States expected to result from the NWP activity, in acres, linear feet,
or other appropriate unit of measure; a description of any proposed
mitigation measures intended to reduce the adverse environmental
effects caused by the proposed activity; 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,
including other separate and distant crossings for linear projects that
require Department of the Army authorization but do not require pre-
construction notification. The description of the proposed activity and
any proposed mitigation measures should be sufficiently detailed to
allow the district engineer to determine that the adverse environmental
effects of the activity will be no more than minimal and to determine
the need for compensatory mitigation or other mitigation measures. For
single and complete linear projects, the PCN must include the quantity
of proposed losses of waters of the United States for each single and
complete crossing of waters of the United States. Sketches should be
provided when necessary to show that the activity complies with the
terms of the NWP. (Sketches usually clarify the activity and when
provided results in a quicker decision. Sketches should contain
sufficient detail to provide an illustrative description of the
proposed activity (e.g., a conceptual plan), but do not need to be
detailed engineering plans);
(5) The PCN must include a delineation of wetlands, other special
aquatic sites, and other waters, such as lakes and ponds, and
perennial, intermittent, and ephemeral streams, 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 on the project
site, 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, as
appropriate;
(6) 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, or explaining why the adverse
environmental effects are no more than minimal and why compensatory
mitigation should not be required. As an alternative, the prospective
permittee may submit a conceptual or detailed mitigation plan.
(7) For non-Federal permittees, if any listed species or designated
critical habitat might be affected or is in the vicinity of the
activity, or if the activity is located in designated critical habitat,
the PCN must include the name(s) of those endangered or threatened
species that might be affected by the proposed activity or utilize the
designated critical habitat that might be affected by the proposed
activity. For any NWP activity that requires pre-construction
notification, Federal permittees must provide documentation
demonstrating compliance with the Endangered Species Act;
(8) For non-Federal permittees, if the NWP activity may have the
potential to cause effects to a historic property listed on, determined
to be eligible for listing on, or potentially eligible for listing on,
the National Register of Historic Places, the PCN must state which
historic property may have the potential to be affected by the proposed
activity or include a vicinity map indicating the location of the
historic property. For NWP activities that require pre-construction
notification, Federal permittees must provide documentation
demonstrating compliance with section 106 of the National Historic
Preservation Act;
(9) For an activity that will 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, the PCN must identify
the Wild and Scenic River or the ``study river'' (see general condition
16); and
(10) For an activity that requires permission from the Corps
pursuant to 33 U.S.C. 408 because it will alter or temporarily or
permanently occupy or use a U.S. Army Corps of Engineers federally
authorized civil works project, the pre-construction notification must
include a statement confirming that the project proponent has submitted
a written request for section 408 permission from the Corps district
having jurisdiction over that USACE project.
(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 an NWP PCN and must
include all of the applicable information required in paragraphs (b)(1)
through (9) of this general condition. A letter containing the required
information may also be used. Applicants may provide electronic files
of PCNs and supporting materials.
(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 activity's adverse environmental
effects so that they are no more than minimal.
(2) Agency coordination is required for: (i) All NWP activities
that require pre-construction notification and result in the loss of
greater than \1/2\-acre of waters of the United States; (ii) NWP 21,
29, 39, 40, 42, 43, 44, 50, 51, and 52 activities that require pre-
construction notification and will result in the loss of greater than
300 linear feet of stream bed; (iii) NWP 13 activities in excess of 500
linear feet, fills greater than one cubic yard per running foot, or
involve discharges of dredged or fill material into special aquatic
sites; and (iv) proposed NWP B activities in excess of
[[Page 35237]]
500 linear feet, that extend into the waterbody more than 30 feet from
the mean high water line or ordinary high water mark, or involve
discharges into special aquatic sites.
(3) When agency coordination is required, the district engineer
will immediately provide (e.g., via email, facsimile transmission,
overnight mail, or other expeditious manner) a copy of the complete PCN
to the appropriate Federal or state offices (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 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. The comments must explain
why the agency believes the adverse environmental effects will be more
than minimal. 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
concerning the proposed activity's compliance with the terms and
conditions of the NWPs, including the need for mitigation to ensure the
net adverse environmental effects of the proposed activity are no more
than minimal. The district engineer 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.
(4) 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.
(5) Applicants are encouraged to provide the Corps with either
electronic files or multiple copies of pre-construction notifications
to expedite agency coordination.
D. District Engineer's Decision
1. 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 a
project proponent requests authorization by a specific NWP, the
district engineer should issue the verification for that NWP if it
meets the terms in the text of that NWP, unless he or she determines,
after considering mitigation, that the proposed activity will result in
more than minimal adverse environmental effects and exercises
discretionary authority to require an individual permit for the
proposed activity. For a linear project, this determination will
include an evaluation of the individual crossings to determine whether
they individually satisfy the terms and conditions of the NWP(s), as
well as the cumulative effects caused by all of the crossings
authorized by NWP. If an applicant requests a waiver of the 300 linear
foot limit on impacts to streams or of an otherwise applicable limit,
as provided for in NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51, 52,
or proposed NWP B, the district engineer will only grant the waiver
upon a written determination that the NWP activity will result in only
minimal adverse environmental effects.
2. When making minimal adverse environmental effects determinations
the district engineer will consider the direct and indirect effects
caused by the NWP activity. The district engineer will also consider
site specific factors, such as the environmental setting in the
vicinity of the NWP activity, the type of resource that will be
affected by the NWP activity, the functions provided by the aquatic
resources that will be affected by the NWP activity, the degree or
magnitude to which the aquatic resources perform those functions, the
extent that aquatic resource functions will be lost as a result of the
NWP activity (e.g., partial or complete loss), the duration of the
adverse effects (temporary or permanent), the importance of the aquatic
resource functions to the region (e.g., watershed or ecoregion), and
mitigation required by the district engineer. If an appropriate
functional or condition assessment method is available and practicable
to use, that assessment method may be used by the district engineer to
assist in the minimal adverse environmental effects determination. The
district engineer may add case-specific special conditions to the NWP
authorization to address site-specific environmental concerns.
3. 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 NWP activities with smaller
impacts, or for impacts to other types of waters (e.g., streams). The
district engineer will consider any proposed compensatory mitigation or
other mitigation measures the applicant has included in the proposal in
determining whether the net adverse environmental effects of the
proposed activity are no more than 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 environmental effects are no more than
minimal, after considering mitigation, the district engineer will
notify the permittee and include any activity-specific conditions in
the NWP verification the district engineer deems necessary. Conditions
for compensatory mitigation requirements must comply with the
appropriate provisions at 33 CFR 332.3(k). The district engineer must
approve the final mitigation plan before the permittee commences work
in waters of the United States, unless the district engineer determines
that prior approval of the final mitigation plan is not practicable or
not necessary to ensure timely completion of the required compensatory
mitigation. 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 proposed compensatory mitigation plan
within 45 calendar days of receiving a complete PCN and determine
whether the proposed mitigation would ensure the NWP activity results
in no more than minimal adverse environmental effects. If the net
adverse environmental effects of the NWP activity (after consideration
of the mitigation proposal) are determined by the district engineer to
be no more than minimal, the district engineer will provide a timely
written response to the applicant. The response will state that the NWP
activity can proceed under the terms and conditions of the NWP,
including any activity-specific conditions added
[[Page 35238]]
to the NWP authorization by the district engineer.
4. If the district engineer determines that the adverse effects of
the proposed activity are more than minimal, then the district engineer
will notify the applicant either: (a) That the activity does not
qualify for authorization under the NWP and instruct the applicant on
the procedures to seek authorization under an individual permit; (b)
that the activity 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 (c)
that the activity 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 (unless additional time is
required to comply with general conditions 18, 20, and/or 31, or to
evaluate PCNs for activities authorized by NWPs 21, 49, and 50), with
activity-specific conditions that state the mitigation requirements.
The authorization will include the necessary conceptual or detailed
mitigation plan 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 or has determined that prior approval of a
final mitigation plan is not practicable or not necessary to ensure
timely completion of the required compensatory mitigation.
E. 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 (see general condition 31).
F. 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 (re-establishment or
rehabilitation), establishment (creation), enhancement, and/or in
certain circumstances preservation of aquatic resources for the
purposes of offsetting 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.
Direct effects: Effects that are caused by the activity and occur
at the same time and place.
Discharge: The term ``discharge'' means any discharge of dredged or
fill material into waters of the United States.
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.
High Tide Line: The line of intersection of the land with the
water's surface at the maximum height reached by a rising tide. The
high tide line may be determined, in the absence of actual data, by a
line of oil or scum along shore objects, a more or less continuous
deposit of fine shell or debris on the foreshore or berm, other
physical markings or characteristics, vegetation lines, tidal gages, or
other suitable means that delineate the general height reached by a
rising tide. The line encompasses spring high tides and other high
tides that occur with periodic frequency but does not include storm
surges in which there is a departure from the normal or predicted reach
of the tide due to the piling up of water against a coast by strong
winds such as those accompanying a hurricane or other intense storm.
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 non-linear 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.
Indirect effects: Effects that are caused by the activity and are
later in time or farther removed in distance, but are still reasonably
foreseeable.
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 acres or linear feet of stream bed that is filled or
excavated as a result of the regulated activity. Waters of the United
States temporarily filled,
[[Page 35239]]
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 that do not require Department of the Army
authorization, such as 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(c)(4). 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 flowing or
standing 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(c)(6)).
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 and functions.
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 next to streams, lakes,
and estuarine-marine shorelines. Riparian areas are transitional
between terrestrial and aquatic ecosystems, through which surface and
subsurface hydrology connects riverine, lacustrine, estuarine, and
marine waters with their adjacent wetlands, non-wetland waters, or
uplands. Riparian areas provide a variety of ecological functions and
services and help improve or maintain local water quality. (See general
condition 23.)
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 linear project: A linear project is a project
constructed for the purpose of getting people, goods, or services from
a point of origin to a terminal point, which often involves multiple
crossings of one or more waterbodies at separate and distant locations.
The term ``single and complete project'' is defined as that portion of
the total linear project proposed or accomplished by one owner/
developer or partnership or other association of owners/developers that
includes 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 or multiple waterbodies several times at separate and distant
locations, each crossing is considered a single and complete project
for purposes of NWP authorization. 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.
Single and complete non-linear project: For non-linear projects,
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 non-linear project must have independent utility (see
definition of ``independent utility''). Single and complete non-linear
projects may not be ``piecemealed'' to avoid the limits in an NWP
authorization.
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
[[Page 35240]]
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(c)(4) and (d),
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(c)(7).
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 water of the United States. If a wetland is adjacent to
a waterbody determined to be a water of the United States under 33 CFR
328.3(a)(1) through (5), that waterbody and any 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. 2016-12083 Filed 5-31-16; 8:45 am]
BILLING CODE 3720-58-P