[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Notices]
[Pages 28006-28010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11831]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Proposed Authorization Under the U.S. Army Corps of Engineers
Nationwide Permit Program of U.S. Department of Agriculture, Natural
Resources Conservation Service, Categorical Exclusions
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Notice of intent and request for comments.
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SUMMARY: The U.S. Army Corps of Engineers is proposing to authorize
Natural Resources Conservation Service (NRCS) approved categorical
exclusions for recurring conservation, restoration, and survey related
activities under Nationwide Permit 23 (NWP 23). The Corps is requesting
comment on the appropriateness of including these NRCS categorical
exclusions under nationwide permit authorization and any conditions or
restrictions that should be added so that those categorically excluded
activities can be verified by NWP 23 to permit discharges of dredged or
fill material and/or structures or work in waters of the United States.
These NRCS categorically excluded activities have been approved by
Council on Environmental Quality (CEQ) and have been finalized by the
NRCS.
DATES: Written comments must be submitted on or before July 12, 2011.
ADDRESSES: You may submit comments, identified by docket number COE-
2011-0008, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
E-mail: [email protected] Include the docket number,
COE-2011-0008, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R (Karen
Mulligan), 441 G Street NW., Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
[[Page 28007]]
Instructions: Direct your comments to docket number COE-2011-0008.
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
e-mail. 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 e-
mail directly to the Corps without going through regulations.gov, your
e-mail 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 http://www.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: Karen Mulligan, Headquarters, U.S.
Army Corps of Engineers, Operations and Regulatory Community of
Practice, Washington, DC 20314-1000, by phone at 202-761-4664 or by e-
mail at [email protected].
SUPPLEMENTARY INFORMATION: The Corps of Engineers issued NWP 23 to
authorize certain activities conducted by other Federal agencies where
the other Federal agency or department has determined, pursuant to the
National Environmental Policy Act (NEPA), that the activity is
categorically excluded from environmental documentation because it is
included within a category of actions that have no more than minimal
adverse environmental effects either individually or cumulatively. NWP
23 is intended to reduce duplicative Federal processes when another
agency has completed requirements pursuant to NEPA, and to expedite
Department of the Army authorizations for those activities that involve
a discharge of dredged or fill material and/or structures or work in
waters of the United States that have no more than minimal adverse
environmental effects on the aquatic environment.
The terms and conditions of NWP 23 describe the general process
followed by the Corps to approve categorically excluded activities for
use with NWP 23. To have their categorical exclusions (CEs) approved
for use with NWP 23, agencies must submit an application to the Office
of the Chief of Engineers. Before approving the use of those CEs with
NWP 23, the Corps will solicit public comment. The Corps may add
additional conditions, including pre-construction notification or
reporting requirements, to ensure that categorically excluded
activities covered under NWP 23 result in no more than minimal
individual and cumulative adverse environmental effects on the aquatic
environment.
To date, the Corps has approved the CEs of three federal agencies
for inclusion under NWP 23. CEs have been approved for the Bureau of
Reclamation, Federal Highway Administration, and United States Coast
Guard. Regulatory Guidance Letter 05-07, which was issued on December
8, 2005, provides the current list of approved CEs. This RGL is
available on the Corps Headquarters Web site at: http://www.usace.army.mil/CECW/Documents/cecwo/reg/rgls/rgl05-07.pdf.
The current NWP 23 was issued on March 12, 2007 (see 72 FR 11092),
and expires on March 18, 2012. In the February 16, 2011, issue of the
Federal Register (76 FR 9174), we proposed to reissue NWP 23 without
any changes. The process for approving CEs for use with NWP 23 is
independent of the rulemaking process for reissuing or modifying NWP
23. If the Corps approves any additional agency CEs for use with NWP
23, a new Regulatory Guidance Letter will be issued but the NWP itself
will not be affected.
The NRCS has requested Corps approval of 26 categorically excluded
activities for inclusion in verification under NWP 23. The NRCS has
previously adopted these categorically excluded activities pursuant to
the CEQ Regulation for Implementing NEPA (40 CFR part 1500 et seq.).
The list of NRCS categorically excluded activities was approved by the
CEQ and has been finalized by the NRCS. Five of the CEs have been
established by the NRCS under 7 CFR 650.6 (a)(1-5) and 21 of the CEs
have been established under 7 CFR 650.6(d)(1-21).
The Corps review process for the NRCS request to include its 26
categorically excluded activities under NWP 23 starts with today's
publication of notice of intent and 60-day comment period. After the
comment period has ended, the Corps will evaluate the comments received
in response to this notice. If the Corps approves any or all of these
categorically excluded activities, Regulatory Guidance Letter 05-07
will be rescinded and replaced with a new Regulatory Guidance Letter
that provides a list and description of all categorically excluded
activities that are authorized under NWP 23.
Proposal
We are proposing to condition these NRCS categorically excluded
activities to require reporting to Corps district offices. NRCS
activities that are categorically excluded under NEPA that involve a
discharge of dredged or fill material in a water of the United States
and that require Department of the Army authorization under Section 404
of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act
of 1899, must be reported to the appropriate district engineer, at
least 30 days prior to commencing activities. The report submitted to
the district engineer would be required to contain the following
information: (1) The site-specific environmental evaluation (NRCS-CPA-
52) approved by NRCS staff for the project; (2) a vicinity map showing
the location of the proposed activity; and (3) project plans. A blank
copy of NRCS's environmental evaluation worksheet is provided in the
regulations.gov docket for this action, so that interested parties can
see what information will be provided in completed copies of worksheet
NRCS-CPA-52.
The district engineer will have 30 days from the date of receipt of
the report to notify the project proponent if he or she has determined
that the proposed activity does not qualify for NWP 23 authorization.
In response to a project-specific report, the district engineer may
require compensatory mitigation to ensure that the activity results in
minimal individual and cumulative adverse environmental effects on the
aquatic environment. In such cases, the district engineer will
[[Page 28008]]
send a NWP verification letter to the project proponent, which will
include special conditions concerning compensatory mitigation
requirements. If the district engineer believes that specific concerns
for the aquatic environment or other public interest factors warrant
further review, discretionary authority may be exercised on a case-by-
case basis to require an individual permit.
If the district engineer does not respond to the submitted report
within 30 days of receipt, then the project proponent can proceed under
the NWP 23 authorization as long as he or she has obtained Clean Water
Act Section 401 water quality certification and/or a Coastal Zone
Management Act consistency concurrence, if required.
The site-specific environmental evaluation prepared by NRCS will
address compliance with the Endangered Species Act and Section 106 of
the National Historic Preservation Act. If the proposed activity may
affect endangered or threatened species or will destroy or adversely
modify critical habitat, NRCS will be the lead Federal agency
responsible for Endangered Species Act Section 7 consultation. If the
proposed activity has the potential to cause effects to historic
properties, NRCS will be the lead Federal agency responsible for
consultation under Section 106 of the National Historic Preservation
Act.
Please note that several of the NRCS categorically excluded
activities may not require Department of the Army authorization but are
listed for consistency and to reduce confusion when referencing the CE
numbers. Approval of the NRCS CEs for inclusion under NWP 23 provides
further clarification to Corps and NRCS staff and a consistent
mechanism to authorize these categorically excluded activities.
Administrative Requirements
Plain Language
In compliance with the principles in the President's Memorandum of
June 1, 1998, (63 FR 31855), regarding plain language, this preamble is
written using plain language. The use of ``we'' in this notice refers
to the Corps. We have also used the active voice, short sentences, and
common everyday terms except for necessary technical terms.
Paperwork Reduction Act
The proposed action will not substantially change paperwork burdens
on the regulated public because many of the 26 categorically excluded
activities may also be authorized by other nationwide permits, regional
general permits, or individual permits that have similar paperwork
requirements.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
For the Corps Regulatory Program under Section 10 of the Rivers and
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the
current OMB approval number for information collection requirements is
maintained by the Corps of Engineers (OMB approval number 0710-0003,
which expires on August 31, 2012).
Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we
determined that this is not a ``significant regulatory action'' and
therefore it is not subject to review under requirements of the
Executive Order.
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 action does not have federalism
implications. We do not believe that the proposed action 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 action will not impose any additional substantive obligations
on State or local governments. Therefore, Executive Order 13132 does
not apply to this proposed action.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the proposed authorization
on small entities, a small entity is defined as: (1) A small business
based on Small Business Administration size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; or (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of the proposed action on
small entities, I certify that it will not have a significant impact on
a substantial number of small entities.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, the
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final 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
of 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.
[[Page 28009]]
We have determined that the proposed action does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal governments, in the aggregate, or the
private sector in any one year, because the approval of these CEs for
use with NWP 23 provides a less costly, more cost-effective, and less
burdensome means of obtaining Department of the Army authorization for
certain activities than obtaining an individual permit. 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
action contains no regulatory requirements that might significantly or
uniquely affect small governments. Therefore, the proposed action 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 approval of these CEs for use with NWP 23 is not
subject to this Executive Order because it is not economically
significant as defined in Executive Order 12866. In addition, this
proposed action does not concern an environmental or safety risk that
we have reason to believe may have a disproportionate effect on
children.
Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires agencies to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' The phrase
``policies that have tribal implications'' is defined in the Executive
Order to include regulations that have ``substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
government and the Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes.''
The proposed action does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and the Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes.
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 approval of these
CEs for use with NWP 23.
Environmental Documentation
A decision document will be prepared for this action after the
comment period has ended and all comments received have been evaluated.
That decision document will be available in the regulations.gov docket
for this action and through Headquarters, U.S. Army Corps of Engineers,
Operations and Regulatory Community of Practice, 441 G Street, NW.,
Washington, DC 20314-1000.
The NRCS has adopted their CEs pursuant to the CEQ Regulation for
Implementing the Procedural Provisions of NEPA (40 CFR part 1500 et
seq.). The list of NRCS's CEs has been approved by the CEQ and was
finalized by the NRCS.
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 decision
concerning this action 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
authorization is not a ``major rule'' as defined by 5 U.S.C. 804(2).
Executive Order 12898
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each federal agency conduct its programs, policies,
and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
The proposed authorization is not expected to negatively impact
human health or the environment of any community, and therefore is not
expected to cause any disproportionately high and adverse human health
or environmental impacts to minority or low-income communities. The
purpose of the authorization is to reducing duplicative Federal
processes when another Federal agency has completed the NEPA analysis
for an activity, and to expedite Department of the Army authorization
for projects having no more than minimal adverse environmental affects
either individually or cumulatively.
Executive Order 13211
The proposed approval of NRCS CEs under NWP 23 is not a
``significant energy action'' as defined in Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
Authority
We are proposing to approve NRCS CEs for use with NWP 23, which was
issued under the authority of Section 404 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.)
List of NRCS Categorical Exclusions
NRCS Categorical Exclusions established under 7 CFR 650.6(a)(1-5):
(1) Soil Survey--7 CFR part 611.
(2) Snow Survey and Water Supply Forecasts--7 CFR part 612.
(3) Plant Materials for Conservation--7 CFR part 613.
(4) Inventory and Monitoring--Catalog of Federal Assistance 10.980
(5) River Basin Studies under Section 6 of Public Law 83-566 as
amended--7 CFR part 621.
NRCS Categorical Exclusions established under 7 CFR 650.6(d)(1-21):
(1) Planting appropriate herbaceous and woody vegetation, which
does not include noxious weeds or invasive
[[Page 28010]]
plants, on disturbed sites to restore and maintain the sites ecological
functions and services.
(2) Removing dikes and associated appurtenances (such as culverts,
pipes, valves, gates, and fencing) to allow waters to access
floodplains to the extent that existed prior to the installation of
such dikes and associated appurtenances.
(3) Plugging and filling excavated drainage ditches to allow
hydrologic conditions to return to pre-drainage conditions to the
extent practicable.
(4) Replacing and repairing existing culverts, grade stabilization,
and water control structures and other small structures that were
damaged by natural disasters where there is no new depth required and
only minimal dredging, excavation, or placement of fill is required.
(5) Restoring the natural topographic features of agricultural
fields that were altered by farming and ranching activities for the
purpose of restoring ecological processes.
(6) Removing or relocating residential, commercial, and other
public and private buildings and associated structures constructed in
the 100-year floodplain or within the breach inundation area of an
existing dam or other flood control structure in order to restore
natural hydrologic conditions of inundation or saturation, vegetation,
or reduce hazards posed to public safety.
(7) Removing storm debris and sediment following a natural disaster
where there is a continuing and eminent threat to public health or
safety, property, and natural and cultural resources and removal is
necessary to restore lands to pre-disaster conditions to the extent
practicable. Excavation will not exceed the pre-disaster condition.
(8) Stabilizing stream banks and associated structures to reduce
erosion through bioengineering techniques following a natural disaster
to restore pre-disaster conditions to the extent practicable, e.g.,
utilization of living and nonliving plant materials in combination with
natural and synthetic support materials, such as rocks, rip-rap, geo-
textiles, for slope stabilization, erosion reduction, and vegetative
establishment and establishment of appropriate plant communities (bank
shaping and planting, brush mattresses, log, root wad, and boulder
stabilization methods).
(9) Repairing or maintenance of existing small structures or
improvements (including structures and improvements utilized to restore
disturbed or altered wetland, riparian, in stream, or native habitat
conditions). Examples of such activities include the repair or
stabilization of existing stream crossings for livestock or human
passage, levees, culverts, berms, dikes, and associated appurtenances.
(10) Constructing small structures or improvements for the
restoration of wetland, riparian, in stream, or native habitats.
Examples of activities include: (1) Installation of fences, and (2)
construction of small berms, dikes, and associated water control
structures.
(11) Restoring an ecosystem, fish and wildlife habitat, biotic
community, or population of living resources to a determinable pre-
impact condition.
(12) Repairing or maintenance of existing constructed fish
passageways, such as fish ladders, or spawning areas impacted by
natural disasters or human alteration.
(13) Repairing, maintaining, or installing fish screens to existing
structures.
(14) Repairing or maintaining principal spillways and appurtenances
associated with existing serviceable dams, originally constructed to
NRCS standards, in order to meet current safety standards. Work will be
confined to the existing footprint of the dam, and no major change in
reservoir or downstream operations will result.
(15) Repairing or improving (deepening/widening/armoring) existing
auxiliary/emergency spillways associated with dams, originally
constructed to NRCS standards, in order to meet current safety
standards. Work will be confined to the dam or abutment areas, and no
major change in reservoir or downstream operation will result.
(16) Repairing embankment slope failures on structures, originally
built to NRCS standards, where the work is confined to the embankment
or abutment areas.
(17) Increasing the freeboard (which is the height from the
auxiliary (emergency) spillway crest to the top of the embankment) of
an existing dam or dike, originally built to NRCS standards, by raising
the top elevation in order to meet current safety and performance
standards. The purpose of the safety standard and associated work is to
ensure that during extreme rainfall events, flows are confined to the
auxiliary/emergency spillway so that the existing structure is not
overtopped which may result in a catastrophic failure. Elevating the
top of the dam will not result in an increase to lake or stream levels.
Work will be confined to the existing dam and abutment areas, and no
major change in reservoir operations will result. Examples of work may
include the addition of fill material, such as earth or gravel, or
placement of parapet walls.
(18) Modifying existing residential, commercial, and other public
and private buildings to prevent flood damages, such as elevating
structures or sealing basements to comply with current State safety
standards and Federal performance standards.
(19) Undertaking minor agricultural practices to maintain and
restore ecological conditions in floodplains after a natural disaster
or on lands impacted by human alteration. Examples of these practices
include: Mowing, haying, grazing, fencing, off-stream watering
facilities, and invasive species control which are undertaken when fish
and wildlife are not breeding, nesting, rearing young, or during other
sensitive timeframes.
(20) Implementing soil control measures on existing agricultural
lands, such as grade stabilization structures (pipe drops), sediment
basins, terraces, grassed waterways, filter strips, riparian forest
buffer, and critical area planting.
(21) Implementing water conservation activities on existing
agricultural lands, such as minor irrigation land leveling, irrigation
water conveyance (pipelines), irrigation water control structures, and
various management practices.
Reporting Requirement
The permittee must submit to the district engineer a copy of: (1)
The site-specific environmental evaluation (NRCS-CPA-52) approved by
NRCS staff for the project; (2) a vicinity map showing the location of
the proposed activity; and (3) project plans. 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.
Dated: May 6, 2011.
Michael G. Ensch,
Chief, Operations and Regulatory, Directorate of Civil Works.
[FR Doc. 2011-11831 Filed 5-12-11; 8:45 am]
BILLING CODE 3720-58-P