[Federal Register Volume 77, Number 34 (Tuesday, February 21, 2012)]
[Notices]
[Pages 10184-10290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3687]
[[Page 10183]]
Vol. 77
Tuesday,
No. 34
February 21, 2012
Part III
Department of Defense
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Department of the Army, Corps of Engineers
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Reissuance of Nationwide Permits; Notice
Federal Register / Vol. 77 , No. 34 / Tuesday, February 21, 2012 /
Notices
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
RIN 0710-AA71
Reissuance of Nationwide Permits
AGENCY: Army Corps of Engineers, DoD.
ACTION: Final notice.
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SUMMARY: The U.S. Army Corps of Engineers (Corps) is reissuing 48 of
the 49 existing nationwide permits (NWPs), general conditions, and
definitions, with some modifications. The Corps is also issuing two new
NWPs, three new general conditions, and three new definitions. The
effective date for the new and reissued NWPs will be March 19, 2012.
These NWPs will expire on March 18, 2017. The NWPs will protect the
aquatic environment and the public interest while effectively
authorizing activities that have minimal individual and cumulative
adverse effects on the aquatic environment.
DATES: The NWPs and general conditions will become effective on March
19, 2012.
ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street
NW., Washington, DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by
email at [email protected] or access the U.S. Army Corps of
Engineers Regulatory Home Page at http://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx.
SUPPLEMENTARY INFORMATION:
Executive Summary
The U.S. Army Corps of Engineers (Corps) issues nationwide permits
(NWPs) to authorize certain activities that require Department of the
Army permits under Section 404 of the Clean Water Act and/or Section 10
of the Rivers and Harbors Act of 1899. The purpose of this regulatory
action is to reissue 48 existing NWPs and issue two new NWPs. In
addition, three new general conditions and three new definitions will
be issued. The NWPs may be issued for a period of no more than five
years. Therefore, the Corps must reissue the NWPs every five years to
continue to authorize these activities. These 50 NWPs will go into
effect on March 19, 2012.
The NWPs authorize activities that have minimal individual and
cumulative adverse effects on the aquatic environment. The NWPs
authorize a variety of activities, such as aids to navigation, utility
lines, bank stabilization activities, road crossings, stream and
wetland restoration activities, residential developments, mining
activities, commercial shellfish aquaculture activities, and
agricultural activities. Some NWP activities may proceed without
notifying the Corps, as long as those activities satisfy the terms and
conditions of the NWPs. Other NWP activities cannot proceed until the
project proponent has submitted a pre-construction notification to the
Corps, and for most NWPs the Corps has 45 days to notify the project
proponent whether the activity is authorized by NWP.
Background
In the February 16, 2011, issue of the Federal Register (76 FR
9174), the U.S. Army Corps of Engineers (Corps) published its proposal
to reissue 48 existing nationwide permits (NWPs), issue two new NWPs,
and not reissue one NWP. The Corps also proposed to reissue its general
conditions and add two new general conditions.
After evaluating the comments received in response to the February
16, 2011, proposal, we have made a number of changes to the NWPs,
general conditions, and definitions to further clarify the permits,
general conditions, and definitions, facilitate their administration,
and strengthen environmental protection. Examples of improved
environmental protection include: imposing limits on surface coal
mining activities authorized by NWP 21; modifying NWP 27 to authorize
additional aquatic resource restoration and enhancement activities such
as the rehabilitation and enhancement of tidal streams, wetlands, and
open waters; and providing flexibility in designing crossings of
streams and other waterbodies so that movements of aquatic species can
be maintained after taking into account the characteristics of the
stream or waterbody and the surrounding landscape (see general
condition 2, aquatic life movements). These changes are discussed in
the preamble.
The Corps is reissuing 48 existing NWPs, issuing two new NWPs,
reissuing 28 existing general conditions, and issuing three new general
conditions. The Corps is also reissuing all of the NWP definitions, and
adding three new definitions. The Corps is also splitting one existing
definition into two definitions as they relate to single and complete
projects. The effective date for these NWPs, general conditions, and
definitions is March 19, 2012. These NWPs, general conditions, and
definitions expire on March 18, 2017.
Grandfather Provision for Expiring NWPs
In accordance with 33 CFR part 330.6(b), activities authorized by
the current NWPs issued on March 12, 2007, that have commenced or are
under contract to commence by March 18, 2012, will have until March 18,
2013, to complete the activity under the terms and conditions of the
current NWPs. Nationwide permit 21 activities that were authorized by
the 2007 NWP 21 may be reauthorized without applying the new limits
imposed on NWP 21, provided the permittee submits a written request for
reauthorization to the district engineer by February 1, 2013, and the
district engineer determines that the on-going surface coal mining
activity will result in minimal adverse effects on the aquatic
environment and notifies the permittee in writing that the activity is
authorized under the 2012 NWP 21.
Clean Water Act Section 401 Water Quality Certifications (WQC) and
Coastal Zone Management Act (CZMA) Consistency Determinations
The NWPs issued today will become effective on March 19, 2012. This
Federal Register notice begins the 60-day Clean Water Act Section 401
water quality certification (WQC) and the 90-day Coastal Zone
Management Act (CZMA) consistency determination processes.
After the 60-day period, the latest version of any written position
taken by a state, Indian tribe, or EPA on its WQC for any of the NWPs
will be accepted as the state's, Indian tribe's, or EPA's final
position on those NWPs. If the state, Indian tribe, or EPA takes no
action by April 23, 2012, WQC will be considered waived for those NWPs.
After the 90-day period, the latest version of any written position
taken by a state on its CZMA consistency determination for any of the
NWPs will be accepted as the state's final position on those NWPs. If
the state takes no action by May 21, 2012, CZMA concurrence will be
presumed for those NWPs.
While the states, Indian Tribes, and EPA complete their WQC
processes and the states complete their CZMA consistency determination
processes, the use of an NWP to authorize a discharge into waters of
the United States is contingent upon obtaining individual water quality
certification or a case-specific WQC waiver. Likewise, the use of an
NWP to authorize an activity within a state's coastal zone, or outside
a state's coastal zone that will affect land or water uses or natural
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resources of that state's coastal zone, is contingent upon obtaining an
individual CZMA consistency determination, or a case-specific
presumption of CZMA concurrence. We are taking this approach to reduce
the hardships on the regulated public that would be caused by a
substantial gap in NWP coverage if we were to wait until the WQC 60-day
period and the CZMA 90-day period ended before these NWPs would become
effective.
Discussion of Public Comments
I. Overview
In response to the February 16, 2011, Federal Register notice, we
received more than 26,600 comment letters, of which approximately
26,300 were form letters pertaining to NWP 21. The non-form letters we
received contained a few thousand comments on various components of the
NWPs and NWP Program implementation. We reviewed and fully considered
all comments received in response to the proposed rule.
General Comments
Many commenters expressed support for the proposed permits. Some
commenters stated that the changes are a step forward in improving
consistency in the NWP program. Many commenters endorsed the
fundamentals of the NWP program, stating that the permits could have a
beneficial impact to conducting infrastructure and mining projects
important to the country. Some stated that permitting delays and an
increase in individual permits would result without the NWP program,
creating a backlog for the Corps and resource agencies, while placing a
burden on regulated industries. Another commenter urged the Corps to
increase flexibility to allow for project modifications when needed due
to unanticipated challenges encountered during construction. Some
commenters stated that further streamlining is needed for increased
efficiency and reducing administrative burden while maintaining a high
level of environmental protection. One commenter said the Corps should
maximize rather than limit use of the NWP program in light of the
current economic situation, Federal budget cuts, and presidential
efforts to streamline regulations. Another commenter was pleased to see
the Corps hold the line against further restrictions on the NWP
program. Many commenters emphasized that a timely, efficient, and
consistent permitting system is critical to the nation's economy.
The NWP Program provides flexibility to readily authorize project
modifications if the NWP activity cannot be constructed in accordance
with the approved plans, as long as any modifications would still meet
the terms and conditions of applicable NWP(s) and qualify for NWP
authorization. In cases where the district engineer has issued an NWP
verification letter, the permittee should contact the district as soon
as he or she finds that the activity cannot be constructed in
accordance with the approved plans. The district engineer will then
determine if authorization by NWP is still appropriate. If it is not,
then the permittee will be instructed on the most appropriate mechanism
for permitting the modified activity.
We believe the final permits issued today maintain a proper balance
between efficiently authorizing activities with minimal individual and
cumulative adverse environmental effects and protecting the aquatic
environment. The NWPs provide a streamlined authorization process that
is consistent with the principles of Executive Order 13563, Improving
Regulation and Regulatory Review.
In contrast, many other commenters expressed general opposition to
the proposal, and said that the proposed rule weakens protection for
waters and should be withdrawn. Some commenters said that the proposal
threatens to undermine the important and statutorily mandated function
of the NWPs and the Clean Water Act, and is contrary to Congressional
intent. One commenter expressed opposition to the issuance of the NWPs,
stating that they will result in an increase in the number of
activities that can be permitted and a reduction in the opportunity for
public review and comment. Many of these commenters objected to the
goals of ``streamlining'' or ``improving regulatory efficiency,'' and
they said that the focus of the NWPs should be on compliance with the
Clean Water Act. Another commenter was concerned that the proposed NWPs
do not support the ``no overall net loss'' goal for wetlands, and that
the Corps analysis predicts that the NWPs will result in a decrease of
waters of the United States, including wetlands.
As discussed below, those NWPs that authorize discharges of dredged
or fill material into waters of the United States comply with the Clean
Water Act and the environmental criteria provided in its implementing
regulations, the 404(b)(1) Guidelines at 40 CFR part 230. The NWPs
authorize minor activities that result in minimal adverse effects on
the aquatic environment that would likely generate little, if any,
public comment if they were evaluated through the standard permit
process with a full public notice. Through the adoption of Section
404(e) of the Clean Water Act in 1977, Congress approved the use of
general permits as an important tool to keep the Corps Regulatory
Program manageable from a resources and manpower perspective, while
protecting the aquatic environment. The Corps first adopted the concept
of general permits in its final rule published on July 25, 1975 (see 40
FR 31321). The NWP program also continues to support the national goal
of ``no overall net loss'' for wetlands, and wetlands compensatory
mitigation will be required when appropriate and practicable to offset
losses of wetland area and functions. The ``no overall net loss'' goal
applies only to wetlands, and for other waters of the United States the
goal is to avoid and minimize losses of those waters and to provide
compensatory mitigation to offset those losses if it is appropriate and
practicable to do so. Stream mitigation is becoming more commonplace as
the science and practical applications become further developed.
Some commenters stated that the NWPs should require consideration
of less damaging alternatives or demonstrate that NWP activities result
in minimal adverse environmental effects. One commenter said that there
is not sufficient emphasis on avoidance of impacts to waters of the
United States. Another commenter objected to using NWPs to expand
existing projects, stating that it discourages avoidance and
minimization.
Those NWPs that authorize discharges of dredged or fill material
into waters of the United States comply with the provisions of the
404(b)(1) Guidelines that address the issuance of general permits (see
40 CFR 230.7). A decision document is prepared for each NWP to provide
information to show that the NWP will authorize only those activities
that result in minimal adverse effects on the aquatic environment and
other public interest review factors. Supplemental decision documents
are prepared at a regional level to support the decision on whether to
add regional conditions to an NWP or suspend or revoke the use of that
NWP in a specific waterbody, category of waters, or geographic area to
ensure that only activities that result in minimal adverse effects on
the aquatic environment and other public interest review factors are
authorized by the NWP. In response to a pre-construction notification
or a request to verify that an activity is authorized by NWP, a
district engineer
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may add activity-specific conditions to the NWP authorization or
suspend or revoke the NWP authorization if he or she determines that
the proposed activity would result in more than minimal adverse
effects.
Paragraph (a) of general condition 23, mitigation, requires
permittees to avoid and minimize adverse effects to waters of the
United States to the maximum extent practicable on the project site.
The use of NWPs to authorize the expansion of existing projects does
not discourage avoidance and minimization because this general
condition applies equally to all NWP authorizations, including those
that authorize expansion of existing projects. The consideration of
practicable alternatives in accordance with 40 CFR 230.10(a) does not
apply directly to discharges of dredged or fill material into waters of
the United States authorized by general permits (see 40 CFR
230.7(b)(1)).
Compliance With Section 404(e) of the Clean Water Act
Several commenters said that the proposed NWPs are contrary to the
Clean Water Act and violate Section 404(e) of that Act. Many commenters
asserted that the NWPs result in more than minimal adverse effects on
the aquatic environment, individually and cumulatively. These
commenters stated that the NWPs do not protect vitally important
functions of wetlands and streams, and that the proposal does not
satisfy the Corps legal obligation to limit general permits to
activities that cause minimal adverse impacts, individually and
cumulatively. They also said the Corps lacks the data to show that the
effects of the authorized activities are in fact minimal. Some
commenters expressed concern regarding the potential overuse of these
permits without the inclusion of acreage, linear feet, watershed or
regional limitations. Another commenter said that the NWPs fail to
describe similarly covered activities in precise terms.
The Corps disagrees with these comments. The NWPs comply with the
Clean Water Act and the environmental criteria provided in its
implementing regulations, the 404(b)(1) Guidelines at 40 CFR part 230.
Section 404(e) of the Clean Water Act states that the Chief of
Engineers may issue, after publishing a notice and providing an
opportunity a public hearing, general permits on a nationwide basis for
any category of activities involving discharges of dredged or fill
material into waters of the United States, if it is determined that the
activities in each category are similar in nature and result in minimal
individual and cumulative adverse environmental effects. The issuance
of the NWPs is consistent with these requirements and therefore
complies with the intent of the Clean Water Act. As discussed above,
national decision documents and supplemental decision documents are
prepared to demonstrate that an NWP will authorize only those
activities that have minimal individual and cumulative adverse effects
on the aquatic environment and other public interest review factors.
The decision documents use available data and other information to
support their conclusions.
Where appropriate and necessary, certain NWPs have acreage, linear
foot, or cubic yard limits, or combinations of those limits, to ensure
that authorized activities result in minimal individual and cumulative
adverse effects on the aquatic environment. Specifically, NWPs have
acreage limitations, NWPs have linear foot limitations, and NWPs have
cubic yard limitations. Many other NWPs have qualitative limitations in
the form of specific activities or situations that are not authorized,
or for which a PCN is required to allow the Corps to ensure on a case-
by-case basis that the adverse effects on the aquatic environment of
the project are truly minimal. A few NWPs have no explicit limits, but
this is limited to those that authorize activities that provide
benefits to the aquatic environment (e.g., NWP 27, which authorizes
aquatic habitat restoration, establishment, and enhancement activities,
and NWP 41, which authorizes activities for reshaping drainage ditches
to improve water quality), or those for which the nature of the
authorized activity inherently ensures that effects will be minimal
(e.g., NWP 10, which authorizes non-commercial, single boat, mooring
buoys). Division engineers may impose regional conditions on the NWPs
to add acreage, linear foot, or cubic yard limits, or reduce those
limits when the NWPs have specified limits in their terms and
conditions, to ensure those NWPs authorize only those activities that
result in minimal adverse effects on the aquatic environment.
The NWPs comply with the requirement in Section 404(e) of the Clean
Water Act to authorize categories of activities that are similar in
nature. Each NWP authorizes a specific category of activities, which
may be broadly defined for some NWPs to keep the NWP program
manageable. The Act does not require that activities authorized by an
NWP be identical, only that they be similar in nature. The permits meet
this requirement and are consistent with the Corps' longstanding
practice regarding the appropriate level of detail with which to
specify what constitutes activities that are similar in nature.
Compliance With the Section 404(b)(1) Guidelines
Several commenters said that the NWPs do not comply with the
404(b)(1) Guidelines. One commenter said that the Corps has no factual
basis to conclude that significant degradation of waters of the United
States has not occurred, which is required to be in compliance with the
Guidelines. This commenter recommended withdrawing the NWPs or
replacing them with state program general permits. One commenter stated
that the NWPs do not comply with the 404(b)(1) Guidelines because they
authorize discharges into special aquatic sites.
When we issue the NWPs, we fully comply with the requirements of
the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance of
general permits under Section 404 of the Clean Water Act. For each NWP
that authorizes discharges of dredged or fill material into waters of
the United States, the decision document contains a 404(b)(1)
Guidelines analysis. Section 230.7(b) of the 404(b)(1) Guidelines
requires a ``written evaluation of the potential individual and
cumulative impacts of the categories of activities to be regulated
under the general permit.'' Since the required evaluation must be
completed before the NWP is issued, the analysis is predictive in
nature. The estimates of potential individual and cumulative impacts,
as well as the projected compensatory mitigation that will be required,
are based on the best available data from the Corps district offices,
including the past use of NWPs. In our decision documents, we also used
readily available national data on the status of wetlands and other
aquatic habitats in the United States, and the foreseeable impacts of
the NWPs on those waters.
The process for issuing state programmatic general permits is
similar to the process for issuing NWPs, including the use of
information to support decisions. The 404(b)(1) Guidelines analysis for
state programmatic general permits is also predictive. Given those
similarities, compliance with the 404(b)(1) Guidelines is not different
for state programmatic general permits versus NWPs.
Despite the fact that many NWPs authorize discharges of dredged or
fill material into special aquatic sites, they are still in compliance
with the 404(b)(1) Guidelines. Section 230.7 of the 404(b)(1)
Guidelines does not
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prohibit the use of NWPs to authorize discharges of dredged or fill
material into special aquatic sites. Many NWPs contain additional
provisions to protect special aquatic sites. For example, several NWPs
specifically require pre-construction notification for proposed
discharges of dredged or fill material into special aquatic sites
(e.g., NWP 13 for bank stabilization activities, NWP 14 for linear
transportation projects, NWP 18 for minor discharges). As another
example, NWP 19 for minor dredging activities, does not authorize
dredging in coral reefs or dredging activities that cause siltation
that degrades coral reefs. General condition 22, designated critical
resource waters, applies the prohibitions in paragraph (a) and the
notification requirement in paragraph (b) to wetlands (a special
aquatic site) adjacent to critical resource waters.
Compliance With the National Environmental Policy Act
Three commenters stated that the NWPs do not satisfy the
requirements of the National Environmental Policy Act (NEPA), as they
do not adequately consider indirect and cumulative effects on global
warming. One commenter said that degradation in air quality from
burning coal from mining projects must be addressed in an environmental
impact statement, and that the Corps has to address the implications of
climate change on aquatic ecosystems. Another commenter stated that the
scientific consensus on the impacts of climate change has to be
considered in the renewal of the NWPs. One commenter said the NWPs
should take into account ongoing federal efforts to address the effects
of climate change through federal programs. These federal programs
address mitigation of climate change (e.g., through reduction of
greenhouse gas emissions) and adaptation to climate change (e.g., by
adjustments made to reduce vulnerability resulting from changing
climate).
Although the Council on Environmental Quality has made available
draft guidance on the consideration of the effects of climate change
and greenhouse gas emissions, and sought public comment on that draft
guidance, they have not issued any final guidance specifically on how
to consider, in NEPA documents, the indirect and cumulative effects
Federal agency actions have on climate change. In the Council on
Environmental Quality's October 2011 Progress Report of the Interagency
Climate Change Adaptation Task Force entitled ``Federal Actions for a
Climate Resilient Nation'' adaptation is defined as ``adjustment in
natural or human systems to a new or changing environment that exploits
beneficial opportunities or moderates negative effects.''
A major cause of climate change is emissions of greenhouse gases.
Activities authorized by NWPs have little direct, indirect, or
cumulative effects on climate change and the emission of greenhouse
gases. There may be brief emissions of greenhouse gases during the
construction of activities authorized by NWP, specifically discharges
of dredged or fill material into waters of the United States or
structures or work in navigable waters of the United States. Any
greenhouse gas emissions that occur other than as a result of the
discharge of dredged or fill materials are outside of the Corps NEPA
scope of analysis because the Corps does not have the legal authority
to control those emissions. The degradation of air quality caused by
burning coal is not the result of a discharge of dredged or fill
material and therefore is outside the Corps legal authority. The
issuance of a Corps permit is designed to ensure that any discharges of
dredged or fill material into waters of the United States associated
with such mining comply with the Clean Water Act. A Corps permit does
not authorize coal mining per se, and therefore the effects of coal
mining that do not result from a discharge of dredge or fill material
to waters of the United States generally are beyond the Corps NEPA
scope of analysis.
The effects of climate change on aquatic ecosystems are a much
broader issue than the effects on the aquatic environment caused by
activities authorized by NWPs. The effects of climate change on
hydrology and extreme events are difficult to project. The effects will
vary by location and the sensitivity of resources to changes in
hydrology and extreme events. The timeframe used to project hydrologic
changes will also affect the evaluation. For activities with minimal
adverse effects on the aquatic environment that are eligible for
authorization by the NWPs, the Corps believes that any necessary
adaptation to climate change is appropriately addressed through land
use planning and zoning, which is the primary responsibility of state,
tribal, and local governments. Activities authorized by NWPs may be
part of state, tribal, or local adaptation efforts to mitigate the
effects of climate change.
On October 1, 2011, the Corps issued updated guidance on sea level
change considerations for Civil Works Program (Engineer Circular 1165-
2-211). The current Engineer Circular applies to Corps Civil Works
activities, but not to the Regulatory Program. As stated on page 25 of
its ``Climate Change Adaptation Plan and Report 2011'' (available at:
http://www.corpsclimate.us/adaptationpolicy.cfm), the Corps expects to
make larger changes in the next update of the Engineer Circular, ``and
the regulatory program will be added following appropriate
consultation.''
Compliance With the Endangered Species Act
One commenter acknowledged the Corps 2007 efforts to pursue
programmatic consultation for the NWP program with the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service to ensure
compliance with the Endangered Species Act (ESA), stating that failure
to complete consultation violates the ESA, as well as Section 404(e) of
the Clean Water Act. Two commenters stated that the Corps has a
requirement to complete these consultations prior to the issuance of
the NWPs.
We have reinitiated programmatic Section 7 Endangered Species Act
consultation for the NWPs. If this consultation is not completed prior
to the effective date of these NWPs, district engineers will consult,
as necessary on a case-by-case basis with the U.S. Fish and Wildlife
Service and National Marine Fisheries Service in accordance with
general condition 18, endangered species. Division engineers may also
impose regional conditions on any of the NWPs to facilitate compliance
with the requirements of the Endangered Species Act.
Compliance With Section 304(d) of the National Marine Sanctuaries Act
One commenter stated that the proposed NWPs must comply with
Section 304(d) of the National Marine Sanctuaries Act (NMSA). Section
304(d)(1))(A) of the NMSA states that ``Federal agency actions internal
or external to a national marine sanctuary, including private
activities authorized by licenses, leases, or permits, that are likely
to destroy, cause the loss of, or injure any sanctuary resource are
subject to consultation with the Secretary.'' The regulations for
implementing section 304(d) are found at 15 CFR 922.187, and those
regulations state that the Federal agency consultation should be
conducted with the Director of the marine sanctuary. The consultation
may be conducted with Endangered Species Act section 7 consultation.
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District engineers that have NOAA-designated marine sanctuaries
within their geographic area of responsibility should consult with the
Director of the marine sanctuary to determine which NWP activities
require activity-specific consultation under Section 304(d) of the
NMSA. Regional conditions should be adopted where necessary to ensure
compliance with the requirements of section 304(d).
New Nationwide Permits
We received several suggestions for the establishment of new NWPs
for various activities. Two commenters suggested developing an NWP to
authorize activities associated with linear gas facility infrastructure
based on the Federal Energy Regulatory Commission's (FERC) blanket
certification program that would allow the industry to undertake
routine activities without the need to obtain a case-specific
authorization from FERC for each project. One commenter recommended
issuing an NWP to authorize activities associated with controlling
nuisance and exotic plant species and another NWP to authorize
activities for innovative mitigation proposals. One commenter said that
an NWP should be developed to authorize the beneficial reuse of dredged
material, for up to 10,000 cubic yards of material. Another commenter
recommended adding an NWP to authorize discharges of dredged or fill
material to raise dam elevations to increase pool elevations of public
water supply reservoirs to increase potable water supplies and
wetlands.
We believe that existing NWPs such as NWPs 12, 3, and 39 are
sufficient to provide general permit authorization for gas utility
lines and associated infrastructure. Discharges of dredged or fill
material into waters of the United States or work in navigable waters
of the United States associated with the removal of nuisance or exotic
plant species may be authorized by NWP 27, aquatic habitat restoration,
establishment, and enhancement activities. Innovative mitigation
proposals may also be authorized by NWP 27, as long as those activities
result in net increases in aquatic resource functions and services and
satisfy the other terms and conditions of that NWP. We believe that the
beneficial reuse of dredged material, especially at such large
quantities, is more appropriately evaluated through the individual
permit process, to more thoroughly consider effects on existing aquatic
resource functions already being provided in the waters where the
reused dredged material might be placed.
Waivers of Certain NWP Limits
We proposed to modify the language concerning the use of waivers in
NWPs 13, 29, 36, 39, 40, 42, and 43 by clarifying that a waiver may be
granted only after the district engineer makes a written determination
concluding that the discharge will result in minimal adverse effects
and sets forth the basis for that determination. We also proposed to
apply the modified waiver language to NWPs 21, 44, and 50, as well as
to the two proposed new NWPs. Some commenters supported the proposed
modifications.
Many commenters said the proposed changes would allow district
engineers too much discretion, and there should be no waivers of NWP
limits. One commenter stated there was not a need for waivers because
many of the NWPs already require pre-construction notification and the
changes make the NWPs more difficult to obtain. The commenter said the
waivers create an additional paperwork burden and provide no
environmental benefits. Many commenters objected to the proposed
waivers, stating that they imply that ephemeral and intermittent
streams are considered lower in their function and value to the aquatic
environment and are provided less protection than perennial streams.
These commenters discussed the importance of ephemeral and intermittent
streams to overall watershed integrity and to water quality and stated
there is no scientific evidence to support the position that the use of
waivers will result in only minimal impacts. One commenter said that
before a waiver is issued, there should be analysis of cumulative
effects to the watershed. Several commenters stated that the use of
waivers in states with arid and semi-arid ecosystems does not properly
take into account the importance of headwater streams in these
ecosystems and could result in more than minimal individual and
cumulative effects.
The basic requirement for general permits, including NWPs, is that
they may only authorize activities that result in minimal individual
and cumulative adverse effects on the aquatic environment. Section
404(e) of the Clean Water Act and the regulations relevant to the
issuance of the NWPs (e.g., 33 CFR part 330 and 40 CFR 230.7) do not
mandate a single approach to satisfying that basic requirement. The
terms and conditions of the NWPs, including acreage, linear foot, and
cubic yard limits and allowing the use of certain NWPs in specific
types of waters, are intended to limit NWPs activities so that they do
not result in more than minimal adverse effects on the aquatic
environment. Division engineers have the authority to impose regional
conditions on NWPs to restrict or prohibit their use in certain waters
or other geographic areas. Another important tool is pre-construction
notification, which provides for district engineers to review proposed
NWP activities to ensure that they will result in minimal adverse
effects. In response to a pre-construction notification, a district
engineer may add activity-specific conditions to the NWP authorization
to further minimize adverse effects to the aquatic environment. For
those NWPs that allow district engineers review pre-construction
notifications and issue written waivers of certain limits, such as the
300 linear foot limit for the loss of intermittent and ephemeral stream
bed, the NWP activity must still satisfy the statutory and regulatory
requirements for general permits. The waiver process does not make the
NWP process more difficult. Instead, it provides an important tool for
districts to efficiently authorize activities with minimal adverse
effects on the aquatic environment after making a written determination
that the activity satisfies the NWP requirements.
We recognize the importance of intermittent and ephemeral streams
and the waiver process for certain NWPs requires district engineers to
make activity-specific evaluations of the intermittent or ephemeral
streams proposed to be filled or excavated before deciding whether to
waive the 300 linear foot limit. To issue a waiver, the district
engineer must make, and document, a minimal adverse effects
determination, which as discussed above, is consistent with the
statutory and regulatory requirements for general permits. As part of
the analysis, the district engineer must consider the individual and
cumulative adverse effects on the aquatic environment on a watershed
basis, or for another appropriate geographic area, such as an
ecoregion. For those activities in arid and semi-arid regions, district
engineers will use local criteria as well as their knowledge of arid
and semi-arid ecosystems to make decisions on pre-construction
notifications for proposed activities that might be eligible for
waivers. The basis for any waiver, including appropriate consideration
of individual and cumulative effects, will be documented in the
district engineer's written determination.
Several commenters noted concern with the 45-day pre-construction
notification review period to provide a
[[Page 10189]]
decision whether to grant or deny the waiver. One commenter noted the
applicant can proceed without authorization if the Corps fails to
respond to a waiver request within the 45 day time limit. Several
commenters expressed concern with the additional time and the expense
that could be incurred by the applicant who must wait for the waiver
decision and written determination.
We believe that the 45-day pre-construction notification review
period is sufficient for district engineers to make their written
determinations on whether to issue waivers of the applicable limits for
certain NWPs. The text of the NWPs that allow waivers of certain limits
clearly states that the waivers must be made by the district engineer
in writing. In addition, paragraph (a)(2) of general condition 31, pre-
construction notification, says that if a proposed activity requires a
written waiver to exceed specified limits of an NWP, the permittee may
not begin that activity until the district engineer issues the waiver.
The 45-day pre-construction notification review period still applies to
pre-construction notifications that involve requests to waive specific
limits of an NWP, but the project proponent may not proceed with the
NWP activity if a written waiver is needed and the district engineer
did not provide a written waiver by the time the 45-day review period
ends. The Corps will make every effort to act on waiver requests within
the 45-day review period. If a prospective permittee is concerned that
a written waiver will not be issued within the 45-day pre-construction
notification review period, then he or she has the option of modifying
the proposed activity so that it does not exceed any specified limit of
the applicable NWP and does not require a written waiver.
Many commenters said that specific criteria should be applied to
the waiver process to ensure proposed activities result in minimal
individual or cumulative adverse effects on the aquatic environment.
One commenter stated that the waivers provide little incentive to
minimize impacts. Another commenter said that water quality
certification cannot be issued for NWPs that have limits that can be
waived by district engineers because the state cannot certify that
those activities meet state water quality standards. One commenter said
that when waivers are issued by district engineers, the district
engineer must include a fact-specific basis to support his or her
finding.
The criteria that are to be applied to requested waivers of
specified limits for certain NWPs are the same general criteria that
are to be used to make any minimal adverse effects determination for
the NWPs. Criteria that are to be used to make minimal adverse effects
determinations are provided in paragraph (1) of Section D, District
Engineer's Decision. The waivers still provide incentives to minimize
impacts because the NWP authorization threshold (i.e., activities must
result in minimal individual and cumulative adverse effects on the
aquatic environment) is lower than the authorization threshold for
individual permits (e.g., the proposed activity is not contrary to the
public interest and, if it involves discharges of dredged or fill
material into waters of the United States, it complies with the
404(b)(1) Guidelines). In other words, a waiver cannot be granted if
the activity does not meet the minimal effects threshold, and applicant
cannot proceed without the Corps' written determination. Applicants who
submit waiver requests run the risk that the waiver will be denied, and
valuable time will be lost in obtaining Department of the Army
authorization. Thus, it is in the applicant's interest to modify the
proposed activity if possible to avoid exceeding a threshold that
requires a waiver, and especially to avoid submitting waiver requests
for projects that will in fact have more than minimal adverse effects.
States can issue water quality certifications for NWPs based on the
specified acreage, linear foot, or cubic yard limits, and require
individual water quality certifications for losses of waters of the
United States that exceed the specified limits and must be waived in
writing by district engineers. The written waiver determinations
prepared by the district engineer have to be activity-specific, and
explain the factual basis of the waiver.
Several commenters said that the additional information required
for a request for a waiver and the requirement to use of a functional
assessment method that is available and practicable would impose a
significant documentation obligation on Corps staff.
The NWPs do not impose additional information requirements for
requests for waivers of specific limits of NWPs. In addition, there is
no requirement to use functional assessments to make decisions on
waiver requests. The sentence in paragraph (1) of Section D, District
Engineer's Decision, on the use of functional assessments to make
minimal effects determinations, states that those methods ``may'' be
used if they are available and practicable to use. However, the Corps
does agree that there must be a factual basis for the waiver (which may
entail the use of a functional assessment methodology, among other
possible approaches) and documenting this does impose an additional
obligation on the Corps. Applicants should provide the district
engineer as much factual information as possible to support the waiver
request and facilitate the district engineer's determination.
Several commenters supported the proposed changes requiring agency
coordination and a written decision. Several commenters said that all
appropriate state and Federal resource agencies should be provided an
opportunity to comment on requests for waivers. One commenter stated
there is no need for additional agency coordination unless specific
resource issues are identified, such as compliance with the Endangered
Species Act or the National Historic Preservation Act.
We have modified the proposed provision requiring agency
coordination for pre-construction notifications involving losses of
greater than 1,000 linear feet of intermittent and ephemeral stream
bed, to require agency coordination for all pre-construction
notifications requesting a waiver of the 300 linear foot limit for
filling or excavating intermittent or ephemeral streams (see paragraph
(d)(2) of general condition 31, pre-construction notification). Under
this agency coordination process, district engineers will solicit
comments from the agencies to assist in making the written minimal
adverse effects determination necessary for a waiver of the 300 linear
foot limit to take effect. Compliance with the Endangered Species Act
and the National Historic Preservation Act is addressed by general
conditions 18 and 20, respectively.
One commenter said that the loss of stream bed should be defined
and the 300 linear foot limit should be reduced to 150 linear feet of
loss of stream bed for those NWPs. Another commenter suggested reducing
the linear foot limit for loss of stream bed to 50 linear feet. One
commenter stated that the 300 linear foot limit should not apply to
ephemeral streams. One commenter said that waivers should be allowed
for losses of perennial streams if the adverse effects are determined
to be minimal and the perennial stream is limited in its aquatic
function.
The loss of stream bed is defined in ``loss of waters of the United
States'' as the linear feet of stream bed that is filled or excavated.
We believe the 300 linear foot limit is appropriate to ensure that
losses of stream beds result in minimal
[[Page 10190]]
adverse effects on the aquatic environment. Division engineers may add
regional conditions to an NWP to reduce the linear foot limit to an
amount less than 300 linear feet. The 300 linear foot limit should not
be waived for losses of perennial streams because they function
differently than intermittent and ephemeral streams, and we believe it
will generally not be the case that losses of more than 300 linear feet
of a perennial stream would constitute a minimal adverse effect. We
believe it would not be a good use of Corps or applicant resources to
allow waiver requests for perennial streams on the remote chance that
the adverse effects of such an activity would be found to be minimal.
The functions provided by perennial streams, intermittent streams, and
ephemeral streams differ, in terms of ecological processes and
duration. Perennial streams provide aquatic habitat functions year-
round, while intermittent streams provide aquatic habitat during the
months when water is flowing in the stream channel, and when hyporheic
flow occurs during drier months. Ephemeral streams provide aquatic
habitat functions only for brief periods, because they have flowing
water only during, and briefly after, precipitation events. Other
important stream functions, such as sediment transport, nutrient
cycling, and energy transport also depend on the presence of flowing
water and, for some of those functions, the presence of aquatic
organisms inhabiting those waters. The other stream functions are
present year-round for perennial streams, and for much of the year for
intermittent streams. In ephemeral streams, sediment transport,
nutrient cycling, and energy transport functions occur during brief
periods or are absent. The functional differences exhibited by
perennial, intermittent, and ephemeral streams provide a scientific
basis for not allowing a waiver for perennial streams. District
engineers will make written case-specific determinations on whether to
waive the 300-linear foot limit for losses of intermittent and
ephemeral stream bed, based in part on the considerations listed in
paragraph (1) of Section D, ``District Engineer's Decision.''
Clean Water Act Jurisdiction
Many commenters cited the U.S. Supreme Court decisions issued in
2001 and 2006, for Solid Waste Agency of Northern Cook County v. U.S.
Army Corps of Engineers and Rapanos v. United States (Rapanos), as well
as other court decisions, and said that the proposed NWPs exceed the
Corps jurisdictional authority under Section 404 of the Clean Water Act
and reflect the Corps and EPA's flawed broad interpretation of what
constitutes a water of the United States, specifically for ephemeral
streams. Most commenters said the proposed NWPs would result in an
expansion of Clean Water Act authority and jurisdiction that would have
a negative impact on the nation's economy by creating excessive burdens
on developers, farmers, and Corps staff. Another commenter said the
Corps should not assert jurisdiction over isolated mining pits.
The NWPs do not assert jurisdiction over waters and wetlands.
Rather, the NWPs are a form of Department of the Army authorization to
comply with the permit requirements of Section 404 of the Clean Water
Act and/or Section 10 of the Rivers and Harbors Act of 1899. Nationwide
permits issued under the authority of Section 404 of the Clean Water
Act authorize discharges of dredged or fill material into waters of the
United States. Nationwide permits issued under the authority of Section
10 of the Rivers and Harbors Act of 1899 authorize structures or work
in navigable waters of the United States. Determining the geographic
jurisdiction under the Clean Water Act (i.e., identifying waters and
wetlands that are waters of the United States) is a separate process
than the NWP authorization process. Likewise, identifying navigable
waters of the United States for the purposes of geographic jurisdiction
under Section 10 of the Rivers and Harbors Act of 1899 is a different
process than the NWP authorization process. These NWPs do not expand
either geographic jurisdiction or activities-based jurisdiction under
the Clean Water Act. Activity-based jurisdiction under the Clean Water
Act is determined by applying the appropriate regulations from 33 CFR
part 323. These NWPs continue to provide a streamlined process for
obtaining authorization for activities that require Department of the
Army permits under either Section 404 of the Clean Water Act and/or
Section 10 of the Rivers and Harbors Act of 1899. Determining whether
isolated mining pits are subject to Clean Water Act jurisdiction is a
case-specific inquiry to be made by applying the appropriate
regulations and guidance. A project proponent or landowner may contact
the Corps district office that has the responsibility for that region
of the country and request a jurisdictional determination for an
isolated mining pit or any other area that might be considered a water
or wetland. The Corps district will respond to that request and inform
the project proponent or landowner of the status of that water with
respect to Clean Water Act jurisdiction.
Comments on Administrative Requirements
Executive Order 13211
One commenter stated that these proposed regulations will cause
coal mines to cease operations and believe the proposal is subject to
Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use.
Although we have made substantial changes to NWP 21, some surface
coal mining activities will still be authorized by this NWP. The
changes to NWP 21 will not cause coal mines to cease operations,
because there are other forms of Department of the Army authorization
available if the coal mining activity involves discharges of dredged or
fill material into waters of the United States. Project proponents may
apply for individual permits to obtain Department of the Army
authorization for such activities. Any activity that could have
previously been authorized under earlier versions of NWP 21 would still
be eligible for authorization under an individual permit. Thus, while
there may be additional paperwork burden for mine operators, the Corps
does not believe that the changes in these permits will have a
significant impact on the supply, distribution, or use of energy (e.g.,
coal).
Executive Order 13563
Several commenters stated that the proposed NWPs are not consistent
with EO 13563 for ``Improving Regulation and Regulatory Review''
because the modifications to the NWPs would impose numerous onerous
conditions and limitations on applicants.
The NWPs continue to provide a streamlined process for authorizing
activities that require Department of the Army permits under Section
404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors
Act of 1899. The average processing times for standard permit
applications in Fiscal Year 2010 was 221 days, while the average
processing time for NWP pre-construction notifications and voluntary
requests for NWP verifications was 32 days. The terms and conditions of
the NWPs are necessary to ensure that the NWPs comply with applicable
statutes and regulations, including the requirement that only
activities with minimal adverse effects, both
[[Page 10191]]
individually and cumulatively, be authorized by NWPs.
Water Quality Certification Issues
One commenter said that the Corps should provide an opportunity for
state and Tribal water quality certification agencies to participate
early in the NWP reissuance process, to reduce potential conflicts
during the water quality certification process. Another commenter asked
for clarification regarding enforcement of the NWPs, in cases where a
provisional NWP verification is issued, but the permittee proceeds with
work without receiving the individual water quality certification. This
commenter asked whether the Corps or the state would initiate an
enforcement action. One commenter objected to use of provisional NWP
verifications in cases where water quality certification has not yet
been issued for a particular NWP activity.
The current NWP reissuance process provides sufficient opportunity
to reduce potential conflicts during the water quality certification
process. States and Tribes begin their water quality certification
processes when the proposal to reissue the existing NWPs and issue new
NWPs is published in the Federal Register for public comment. Water
quality certification agencies are encouraged to submit comments on the
NWP proposal. But it is important to remember that each state and Tribe
is likely to have different water quality standards, and the national
terms and conditions for the NWPs cannot address those regional
variations.
After the comments received in response to the proposal are
reviewed, the final NWPs are developed. Once the final NWPs are
published in the Federal Register, States and Tribes have another
opportunity to decide whether to issue or deny water quality
certification for the NWPs. States and Tribes will have 90 days to make
their water quality certification decisions.
If water quality certification was denied for an NWP, then the
permittee must obtain an individual water quality certification or a
waiver, even if the Corps issued a provisional NWP verification. The
provisional NWP verification merely informs the prospective permittee
that the Corps has determined that the proposed activity qualifies for
NWP authorization, as long as the permittee receives an individual
water quality certification or waiver. The prospective permittee should
provide a copy of the individual water quality certification to the
Corps district. The Corps has full authority to pursue an enforcement
action for not obtaining an individual water quality certification or
waiver, which is a violation of the terms of the permit. Case-specific
decisions on appropriate enforcement actions are at the Corps
discretion. The provision for NWP verification is an important tool to
be responsive to users of the NWPs, and to inform them of their need to
work with the water quality certification agency to comply with the
requirements of Section 401 of the Clean Water Act. The provisional
verification serves to inform the applicant that all other requirements
for NWP verification have been satisfied and allows the applicant to
focus on obtaining the required state certifications.
Discussion of Comments
Nationwide Permits
NWP 1. Aids to Navigation. There were no changes proposed for this
NWP, and no comments were received. This NWP is reissued without
change.
NWP 2. Structures in Artificial Canals. There were no changes
proposed for this NWP. One commenter recommended not reissuing this NWP
because a state will deny water quality certification.
The potential for a state to deny water quality certification for
an NWP is not a sufficient basis for not reissuing an NWP. The water
quality certification process is independent of the decision on whether
to issue or reissue an NWP. This NWP is reissued without change.
NWP 3. Maintenance. We proposed to modify this NWP to clarify that
stream channel excavation immediately adjacent to the structure or fill
being maintained is authorized under paragraph (a) and does not require
a PCN. We also proposed to replace the word ``and'' with ``and/or'' in
paragraph (b) to indicate that the activity does not need to include
the placement of new or additional riprap to qualify for this NWP.
Several commenters supported the change to paragraph (a) to allow
excavation in a stream channel immediately adjacent to a structure or
fill as part of the maintenance activity, without requiring pre-
construction notification. Some commenters specifically supported the
ability to do minor excavation within stream channels to install a
larger culvert or bridge that would improve fish passage without a pre-
construction notification. Two commenters asked which types of stream
channel modifications could be authorized under paragraph (a). Another
commenter said that the proposed modification does not adequately
clarify that a pre-construction notification is not required for stream
channel modification as discussed in the proposed rule. This commenter
recommended that paragraph (a) state that stream channel modification
immediately adjacent to the structure or fill being maintained is
authorized without pre-construction notification. One commenter
suggested that paragraph (a) include the removal of material from
within existing structures. One commenter indicated that the scope of
activities considered as stream channel modifications should be
clarified, because certain stream channel modifications such as
sediment or debris removal and reestablishment of the original bridge-
stream alignment are needed to maintain a safe crossing with sufficient
hydraulic capacity. Another commenter indicated that while stream
channel modification is restricted to the minimum necessary, there
should be a 300 linear foot impact limit. One commenter did not support
the proposed modification, stating that pre-construction notification
should be required for stream channel excavation near a structure
because excavation has the potential to uncover unknown archeological
resources.
We have changed the text of paragraphs (a) and (b) to clarify which
stream modifications fall under paragraph (a) and which fall under
paragraph (b). The removal of material from waters within, or
immediately adjacent to, the structure or fill are authorized under
paragraph (a) and do not require pre-construction notification. The
removal of material from waters that are not immediately adjacent to
the structure or fill, but within the limits in paragraph (b), may be
authorized under paragraph (b). This NWP authorizes only activities
that repair or return an activity to previously existing conditions. We
do not believe it is necessary to place additional limits on this NWP
because the current limits are sufficient to ensure minimal effects.
Paragraph (a) only authorizes minor stream channel modifications
necessary to repair, replace, or rehabilitate the structure or fill,
which may include minor deviations to account for changes in materials,
construction techniques, requirements of other regulatory agencies, or
current construction codes or safety standards. Such minor deviations
could be done to improve conditions to facilitate aquatic species
movements. General conditions 20 and 21 address the protection of
historic properties and actions to be taken if previously unknown
remains or artifacts are discovered during the maintenance activity.
[[Page 10192]]
Several commenters recommended adding the word ``or stabilization''
after ``repair, rehabilitation, replacement'' in paragraph (a) to
clarify that stabilization activities are included in paragraph (a).
Two commenters requested that practicability be considered with the
``minimum necessary.'' One commenter requested that the NWP include the
requirements of other regulatory agencies as a reason for allowing
minor deviations in a structure's configuration or filled area.
We do not believe it would be appropriate to include stabilization
activities under paragraph (a) since some stabilization activities may
result in more than a minor deviation in the structure's configuration
or filled area. District engineers already consider what is practicable
when reviewing proposed NWP 3 activities, and we do not believe it is
necessary to provide additional clarification. We agree that the
requirements of other regulatory agencies is an appropriate basis for
making minor changes in a structure or filled area during maintenance,
especially if those regulatory requirements help protect aquatic
resources.
Several commenters stated that the placement of new or additional
riprap to protect small structures be included in paragraph (a). A
commenter requested clarification that the placement of pipe liners and
concrete repairs to flow lines of pipes are examples of maintenance
activities authorized by this NWP. One commenter expressed concern that
authorizing the expansion of existing projects into waters of the
United States discourages avoidance and minimization of adverse impacts
and violates the 404(b)(1) Guidelines. Another commenter indicated that
work that is immediately adjacent to the project is not maintenance and
that the work should be limited to the extent of the original project.
The placement of riprap to protect a structure or fill is more
appropriately authorized by paragraph (b) of this NWP, after the
district engineer reviews the pre-construction notification. If the
installation of pipe liners or concrete repairs to flow lines are
necessary and result only in a minor deviation to the structure's
configuration or filled area, it may be authorized under paragraph (a).
Paragraph (a) only authorizes minor deviations to the structure or
filled area that are necessary to conduct the repair, rehabilitation,
or replacement activity, and complies with the general condition
requiring on-site avoidance and minimization.
One commenter said that the permit should require that the Corps be
notified, within 12 months of the date of the damage, for activities
involving the repair, rehabilitation, or replacement of structures or
fills destroyed or damaged by storms, floods, fire or other discrete
events.
The repair, rehabilitation, or replacement of structures or fills
destroyed or damaged by these types of events does not require pre-
construction notification. This is because restoring a structure or
fill to its pre-event configuration will not result in more than
minimal adverse effects relative to the pre-event status quo. If a
project proponent wants a waiver of the two-year limit, the district
engineer can issue a waiver if warranted, without reviewing a pre-
construction notification.
Some commenters expressed opposition over the proposed change from
``and'' to ``and/or'' under paragraph (b). They recommended retaining
the current language because they indicated that making the change to
``and/or'' would cause confusion as to which provision of this NWP
would be used to authorize riprap placement. The commenters also said
that this change would result in the regulation of excavation
activities that do not result in more than incidental fallback. Another
commenter was concerned that the change to ``and/or'' suggested that
the addition of riprap triggered pre-construction notification.
The use of the term ``and/or'' means that paragraph (b) authorizes
the removal of accumulated sediments or debris, the placement of new or
additional riprap to protect the structure, or both activities. This
NWP authorizes the removal of accumulated sediment and debris if that
activity involves a regulated discharge of dredged or fill material.
This NWP also authorizes the removal of accumulated sediments and
debris in the vicinity of existing structures from section 10 waters.
If a project proponent seeks authorization to place new or additional
riprap near the structure, then pre-construction notification is
required in accordance with paragraph (b) of this NWP.
One commenter said that the use of riprap should be discouraged and
only authorized if other options are not possible. Another commenter
suggested placing a limit on the amount of riprap that can be placed
under paragraph (b). One commenter stated that the placement of new or
additional riprap is not maintenance and should not be authorized by
NWP 3. One commenter recommended requiring mitigation techniques, such
as weep holes, when steel sheet piling is used for the maintenance
activity.
Riprap may be necessary to protect the integrity of these
structures. We have modified the next to last sentence of paragraph (b)
to clarify that new or additional riprap may be placed to protect the
structure or ensure the safety of the structure. In response to a pre-
construction notification (which is required for all placement of new
or additional riprap under paragraph (b) of this NWP), best management
practices or other mitigation measures may be required by the district
engineer to minimize adverse effect to the aquatic environment.
One commenter said that this NWP should not authorize maintenance
dredging and that NWP 19 should be used instead. This commenter also
recommended adding a cubic yard limit for the amount of dredging that
is authorized. Another commenter recommended that the removal of
sediment should be limited to 100 feet instead of 200 feet. One
commenter suggested increasing the linear foot limit to 500 feet. One
commenter also suggested that the applicant be required to provide
information to ensure that sediments proposed to be removed are not
contaminated.
Paragraph (b) may be used to authorize the removal of accumulated
sediment and debris from section 10 waters, and the 200 linear foot
limit is appropriate to ensure minimal adverse effects. District and
division engineers can condition this NWP to reduce the limit to less
than 200 linear feet. Maintenance dredging for the purposes of
navigation may be authorized by NWP 19 and may not be authorized by
this NWP. The only excavation authorized by this NWP is excavation
necessary for the maintenance, repair, rehabilitation, or replacement
of the structure, and then only within the limits established in the
permit. It is not necessary to require contaminant testing for the
sediments to be removed as a general condition of the permit, because
for many cases there is reason to believe that no contaminants are
present in the material. If there is reason to believe that
contaminants are present, the district engineer may require contaminant
testing and/or best management practices to control the release of
contaminants on a case-specific basis.
One commenter objected to the proposed removal of the words
``[w]here maintenance dredging is proposed'' from the ``Notification''
paragraph. Another commenter said that pre-construction notification
should only be
[[Page 10193]]
required when maintenance dredging is contemplated.
Pre-construction notification is required for all activities
covered under paragraph (b). When a permittee submits the pre-
construction notification for activities covered under paragraph (b),
they also must submit information regarding the original design
capacities and configurations of the outfalls, intakes, small
impoundments, and canals. The deleted phrase is meant to clarify the
``Notification'' provision.
A commenter asked if the term ``upland'' means ``above the ordinary
high water mark.'' That commenter also requested clarification as to
what constitutes ``temporary'' in terms of how long temporary fills can
be kept in place. Another commenter asked for a definition of ``minor
deviations'' and two commenters recommended that ``immediately
adjacent'' be defined.
There may be wetlands landward of the ordinary high water mark of a
river or other water of the United States, so it would not be
appropriate to define ``uplands'' as suggested in the previous
paragraph. Since some waters and wetlands are not subject to Clean
Water Act jurisdiction, we have changed the text of paragraph (b) to
require all dredged or excavated materials to 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. Waters of the United States will be identified in
accordance with applicable laws, regulations, and guidance, as
discussed above, and is not affected by the issuance of these NWPs.
What constitutes a temporary fill is at the discretion of the district
engineer. Determining what is a minor deviation and immediately
adjacent is also at the discretion of the district engineer. The Corps
believes this is appropriate because it is difficult to identify bright
line definitions for these terms that are applicable in all
circumstances. If an applicant is unsure whether a specific activity
qualifies, he or she should consult the appropriate Corps district
office.
Several commenters said that pre-construction notification should
not be required for activities authorized by paragraph (b), to reduce
delays. Other commenters requested removal of the pre-construction
notification requirements for sediment and debris removal, because the
work is often conducted immediately after storm events when a timely
response is critical to public safety. Another commenter also requested
that no pre-construction notification be required for activities under
paragraph (b), if the waters are ephemeral or intermittent streams.
Other commenters said that pre-construction notification should be
required for all activities authorized by this NWP.
We believe that the pre-construction notification requirements for
this NWP are appropriate. Pre-construction notification is required for
those activities that may have the potential to cause more than minimal
adverse effects on the aquatic environment. Activities authorized by
paragraph (b) usually involve larger impacts than those authorized by
paragraph (a) and therefore warrant pre-construction notification to
ensure that those activities will result in minimal adverse effects on
the aquatic environment.
One commenter suggested that this NWP should require the use of
best management practices to avoid sediment loading of waters. One
commenter suggested that paragraph (c) should be conditioned to protect
downstream water quality and prohibit sediment discharges. Two
commenters said that general condition 2 should not apply to NWP 3
activities.
General condition 12 requires the use of sediment and erosion
controls to minimize sediment inputs during construction. General
condition 2 does apply to this NWP, to ensure that aquatic life
movements can continue after the maintenance activity is conducted.
One commenter said that Tribes should be notified to avoid impacts
to tribal treaty natural resources and cultural resources. Two
commenters said that this NWP should be conditioned to allow fish
migration to continue. One of these commenters also stated that these
activities should not restrict water flows or constrict channels. One
commenter said that this NWP should be conditioned to address slope
stability to prevent overburden material from going into the water.
Another commenter recommended that all stream crossings span the
bankfull width and, in cases where the structures have a bottom, the
structure bottom shall match stream slope.
District engineers have conducted government-to-government
consultation with Tribes to determine which NWP activities should be
subject to project-specific consultation to protect Tribal treaty
natural resources and cultural resources. General Condition 18
specifies that no activity or its operation may impair reserved tribal
rights, including, but not limited to, reserved water rights and treaty
fishing and hunting rights. General condition 2 requires that NWP
activities be constructed to maintain aquatic life movements, and
general condition 9 requires that water flows be maintained to the
maximum extent practicable. The appropriate size for stream crossings
will be determined on a case-by-case basis, to comply with the
applicable general conditions.
A commenter recommended an addition to the ``Note'', which
references the section 404(f) exemption for maintenance. This commenter
suggested that the note include clarification as to who can use the
exemption for maintenance of irrigation and drainage ditches.
The section 404(f) exemption for maintenance of irrigation ditches
and drainage ditches can be used by anyone that qualifies for the
exemption. If a particular activity does not qualify for the exemption
because of the recapture provision in section 404(f)(2) or for any
other reason, NWP 3 may be used to authorize the maintenance activity,
if it meets the terms and conditions of the NWP.
This NWP is reissued with the modifications discussed above.
NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. There were no changes proposed for this NWP.
One commenter suggested adding fish aggregating devices to the list of
devices and activities authorized by this NWP. Fish aggregating devices
are man-made objects used to attract ocean-going pelagic fish. Before
these devices, commercial fishing used purse seining to target surface-
visible aggregations of birds and dolphins, which were used as a signal
of the presence of tuna schools below. However, the by-catch of
dolphins became a significant issue. The demand for dolphin-safe tuna
was a driving force for fish aggregating devices. Therefore, we concur
with the comment and have added that device to this NWP. This NWP is
reissued with the modification discussed above.
NWP 5. Scientific Measurement Devices. We proposed to modify this
NWP to require the removal of the device and any associated structures
or fills at the conclusion of the study. We also proposed to add
meteorological stations to the list of examples of the types of devices
authorized by this NWP, as well as current gages and biological
observation devices.
One commenter suggested that each of the listed devices be defined
and have footprint and height limitations. Another commenter said that
meteorological stations should not be authorized by this NWP. One
commenter supported adding meteorological stations, current gages,
[[Page 10194]]
and biological observation devices as examples of the types of devices
authorized by this NWP. Another commenter stated the Corps should
define a maximum period required for a meteorological tower study.
We do not believe it is necessary to provide definitions for each
of these devices and add limits. These devices are usually small in
size and since most of them are structures they do not typically result
in a loss of waters of the United States. This NWP already has a 25
cubic yard limit for weirs and flumes. Division engineers can
regionally condition this NWP to establish additional limits, including
maximum time frames for studies. In response to an NWP verification
request, district engineers may also place limits on these devices and
their use.
One commenter suggests the Corps clarify the requirements for the
removal of a scientific measurement device, and suggested that the NWP
not require excavation to remove the entire structure. This commenter
also said that cutting off the structure near the substrate of the
waterbody and leaving the buried foundation may result in less
environmental damage during removal. Another commenter said that where
meteorological towers are used for long-term data collection and
preliminary testing for wind turbines, those meteorological towers
would be removed during the wind energy facility decommissioning
process. One commenter stated that the device should be removed ``upon
completion of the use of the device to measure and record scientific
data.''
We have modified the provision in the NWP to require the removal of
the device when it will no longer be used to measure and record
scientific data. Meteorological towers used in wind energy generation
facility preliminary testing and operations could be left in place
until the facility is decommissioned. We have also changed the text to
state that structures or fills must be removed to the maximum extent
practicable, which would allow the foundation to remain if removing the
foundation would cause more adverse effects to the waters or wetlands
than leaving the foundation in place. We also added the word
``foundation'' to the examples of structures or fills that may be
associated with a scientific measurement device.
This NWP is reissued with the modifications discussed above.
NWP 6. Survey Activities. We proposed to modify this NWP to specify
how exploratory trenches are backfilled by stating the work ``must not
drain a water of the United States'' and to replace the 25 cubic yard
limit for temporary pads with a \1/10\-acre limit.
Several commenters supported changing the limit from 25 cubic yards
to \1/10\-acre. Two commenters expressed concern that removing the 25
cubic yard limit would result in more than minimal cumulative effects
to aquatic resources. One commenter recommended adding wetland
delineation sampling activities to the list of examples of activities
authorized by this NWP. Several others recommended adding conditions to
require removal of the temporary fills and re-establishment of pre-
construction contours and reseeding of affected areas after completion
of work. One commenter requested a definition of ``temporary pad.'' One
commenter recommended that exploratory trenching should not be
authorized below the ordinary high water mark of any waters of the
United States.
We are changing the limit of this NWP from 25 cubic yards to \1/
10\-acre. We have added ``sample plots or transects for wetland
delineations'' as an example of an activity authorized by this NWP.
General condition 13, removal of temporary fills, requires temporary
fills to be removed in their entirety and the area revegetated, as
appropriate. We do not believe it is necessary to define ``temporary
pad'' for purposes of this NWP, since it is simply a temporary fill
that must be removed upon completion of the survey activity. We do not
agree that exploratory trenching should be prohibited below the
ordinary high water mark since these activities result in temporary
impacts to the aquatic environment.
This NWP is reissued with the modification discussed above.
NWP 7. Outfall Structures and Associated Intake Structures. We did
not propose any changes to NWP. One commenter objected to the
reissuance of this NWP, stating that these activities adversely affect
aquatic vegetation or areas designated as critical habitat for fish
foraging and spawning, through increases in turbidity, discharges of
nutrients and contaminants, alteration of near-shore areas, and
scouring vegetation within the plume. Another commenter recommended
that outfall structures not be placed in wetlands or constructed in
such a manner that would create shoreline pockets capable of trapping
debris. One commenter recommended conditioning this NWP to ensure that
the outfall structure not extend into the receiving water and impair
navigation. One commenter suggested that for activities proposed to
occur on state-owned submerged lands, a separate authorization would be
required from that state.
In waters that have been designated as Essential Fish Habitat in
accordance with the Magnuson-Stevens Fishery Conservation and
Management Act, consultation with the National Marine Fisheries Service
will be conducted for proposed activities that may adversely affect
Essential Fish Habitat. That consultation will often result in
conservation recommendations that will protect habitat for fish
foraging and spawning. General condition 22, designated critical
resource waters, will also reduce adverse effects to fish foraging and
spawning areas caused by NWP activities in those critical resource
waters. Division engineers may regionally condition this NWP to
restrict or prohibit its use in specific waters, including those that
provide important habitat. In response to a pre-construction
notification, district engineers may also exercise discretionary
authority if the proposed activity would result in more than minimal
adverse effects on the aquatic environment, including vegetated
shallows and fish spawning and feeding areas. These structures may be
designed so that they do not trap debris. General condition 14, proper
maintenance, requires authorized structures and fills to be properly
maintained, which may include periodic removal of debris from outfall
structures and associated intake structures, to ensure that these
structures continue to function properly, do not trap debris, and do
not cause more than minimal adverse effects to nearshore aquatic
environments. Compliance with general condition 1, navigation, will
prevent adverse impacts to navigation. Permittees are responsible for
obtaining any other Federal, state or local permits that may be
required.
The NWP is reissued without change.
NWP 8. Oil and Gas Structures on the Outer Continental Shelf. We
proposed to modify this NWP to update the name of the former Minerals
Management Service to the Bureau of Ocean Energy Management Regulation,
and Enforcement (BOEMRE).
One commenter expressed support for the proposed modification. One
commenter recommended that no oil and gas structures or activities be
authorized through the nationwide permit process.
After the proposal to reissue this NWP was published, the Bureau of
Ocean Energy Management (BOEM) became the agency responsible for
issuing leases for oil and gas structures on the outer continental
shelf. We have modified the text of NWP 8 to reflect this change. This
NWP only authorizes structures
[[Page 10195]]
erected within areas of the outer continental shelf leased by the
Bureau of Ocean Energy Management. The general environmental concerns
are addressed in the required NEPA documentation prepared by BOEM prior
to issuing a lease. The Corps role is limited to reviewing impacts on
navigation and national security, as stated in 33 CFR part 322.5(f).
This NWP is reissued as proposed.
NWP 9. Structures in Fleeting and Anchorage Areas. There were no
changes proposed for this NWP, and no comments were received. This NWP
is reissued without change.
NWP 10. Mooring Buoys. There were no changes proposed for this NWP.
One commenter stated a notice to Tribes needs to be provided to avoid
adverse effects to Tribal treaty fishing access. One commenter
recommends prohibiting the use of this NWP in ``downgraded shellfish
harvest areas.'' Another commenter said that the permit should be
conditioned to require permittee's to provide information on the
location of the mooring buoy, including a site plan drawn to scale that
shows the distance of the buoy from the shore, mark the Corps permit
number on the buoy, and a statement that the buoy satisfies U.S. Coast
Guard requirements. One commenter suggested adding a limit on the
number of buoys installed per acre, based on the number and size of the
moored vessels.
Division engineers can regionally condition this NWP to prohibit
its use in areas where mooring buoys may impact access to Tribal
treating fishing areas. General condition 18 states that NWP activities
cannot impair reserved tribal rights. Division engineers can impose
regional conditions to restrict or prohibit its use in shellfish
harvesting areas. We do not agree that pre-construction notification
for the activities authorized by this NWP is necessary, to require
prospective permittees to submit detailed information on the location
of the proposed mooring buoy, a detailed site plan, and a statement
that it complies with U.S. Coast Guard requirements. All applicable
Coast Guard regulations must be complied with independent of the
conditions in this NWP. We believe that it is not necessary to limit
this NWP, at the national level, to install a particular number of
mooring buoys per acre. Division engineers may also regionally
condition this NWP to impose such restrictions.
This NWP is reissued without change.
NWP 11. Temporary Recreational Structures. There were no changes
proposed for this NWP. One commenter recommended requiring that
structures authorized under this NWP be removed immediately after use
ceases, instead of the 30 days specified in the NWP.
The Corps believes that the current requirements for the removal of
temporary structures are sufficient. Where necessary, shorter time
periods for removal can be imposed through regional conditioning or
through special conditions provided in activity-specific NWP
verifications.
The NWP is reissued without change.
NWP 12. Utility Line Activities. We proposed to modify this NWP to
clarify how to calculate the loss of waters of the United States for a
single and complete project that involves an access road. This proposed
change was intended as a clarification of long-standing practice, not a
substantive revision.
Several commenters supported the proposed change to this NWP.
Another commenter stated the proposed clarification would severely
restrict the use of NWP 12, because it changes the definition of single
and complete project. One commenter requested further clarification of
the intent and applicability of the term ``single and complete'' and
suggested we replace it with ``single and complete linear projects''
wherever the former phrase is found in NWP 12 since the NWP applies to
linear projects and their associated facilities and activities. Two
commenters requested confirmation that the calculation of impacts for
purposes of satisfying the NWP 12 threshold is done separately for each
crossing. Another commenter objected to the definition of ``single and
complete project'' at 33 CFR 330.2(i) and the NWP definitions section
and stated mitigation should be required for utility lines that result
in the loss of greater than \1/2\-acre.
This modification of the NWP does not change the definition of
single and complete project and does not affect its implementation,
except to clarify that only losses of waters of the United States
associated with a single and complete project would be considered when
determining whether the acreage limit or pre-construction notification
threshold is exceeded. However, it is correct that the Corps long-
standing practice (which we are not changing) has been to generally
calculate impacts for purposes of satisfying the \1/2\-acre threshold
separately for each separate and distant crossing, and we have
clarified this in the definitions section by adding separate
definitions that explain how single and complete projects are
determined for linear and non-linear projects. We do not agree that in
the text of this NWP the term ``single and complete project'' should be
replaced with ``single and complete linear project.'' Although the vast
majority of utility lines are linear projects where the crossings are
at separate and distant locations, and thus considered separate single
and complete projects, there may be circumstances where the separate
crossings of a waterbody are too close together to be considered
separate single and complete projects, and one NWP authorization would
be evaluated for those closely-spaced crossings. Therefore, we have
retained the more generic term ``single and complete project'' in the
text of this NWP. Other supporting components of a utility line, such
as substations, may not be considered linear projects in some
circumstances. District engineers may exercise discretionary authority
and require compensatory mitigation for utility line activities that
require pre-construction notification and result in the loss of aquatic
resources.
One commenter stated the Corps should clarify that the only
relevant activity for purposes of NWP 12 is a discharge of dredged or
fill material into waters of the United States. One commenter said that
no discharges should be authorized in waters below the ordinary high
water mark or in areas that provide fish habitat functions. This
commenter also said that utility lines should be buried at least six
feet below the authorized federal channel depth. One commenter stated
that mechanized land clearing of forested wetlands for installation of
utility lines should not be authorized by NWP 12.
The activities authorized by this NWP are not limited to discharges
of dredged or fill material. This NWP also authorizes structures or
work in navigable waters of the United States that require
authorization under Section 10 of the Rivers and Harbors Act of 1899.
We do not agree that discharges should be prohibited in open waters,
below the ordinary high water mark. Such activities often result in
minimal adverse effects on the aquatic environment and qualify for
general permit authorization. Division engineers can restrict or
prohibit use of this NWP in certain waters, through the approval of
regional conditions. The appropriate depth a utility line should be
buried below a federal channel should be determined on a case-by-case
basis. Mechanized landclearing of a forested wetland in a utility line
right-of-way may only result in a conversion of wetland type, and not
result in permanent loss of waters of the United States. District
engineers may require compensatory mitigation to offset permanent
losses of wetland functions when such mechanized landclearing occurs in
forested wetlands.
[[Page 10196]]
One commenter stated that authorizing the loss of \1/2\-acre of
waters of the United States for each crossing results in more than
minimal adverse environmental effects. Another commenter said that the
\1/2\-acre limit should apply to the entire utility line project,
because the cumulative effects of the utility line must be considered.
One commenter stated that this NWP should also limit stream impacts to
300 linear feet. Several commenters asked whether the conversion of a
forested wetland to a scrub-shrub wetland counts toward the \1/2\-acre
limit.
The \1/2\-acre limit applies to each crossing that is considered to
be a separate single and complete project, because they are sited at
distant locations from other crossings that constitute the linear
project. Each separate and distant crossing should be evaluated to
determine if it meets the terms and conditions of the NWP, and
cumulative effects of the overall utility line should be evaluated to
determine if the adverse cumulative effects on the aquatic environment
are more than minimal and therefore do not qualify for NWP
authorization. Separate utility line crossings are usually on different
water bodies, and may also be in widely separated watersheds. Such
factors should be considered when assessing cumulative impacts. The
``Definitions'' section provides further clarification on single and
complete projects. The conversion of a forested wetland to a scrub
shrub wetland does not constitute a permanent loss of waters of the
United States, and thus does not count towards the acreage limit, even
though it may result in the permanent loss of certain functions, which
may require compensatory mitigation.
One commenter said that some utility lines and associated renewable
energy projects may have unintended negative impacts on the Department
of Defense mission. For example, high voltage transmission lines could
potentially interfere with long-range radar surveillance, homeland
defense, testing, and training missions. This commenter requested that
pre-construction notifications for NWP 12 activities involving the
construction of overhead utility lines in waters of the United States
be coordinated with the Department of Defense, by sending a copy of the
pre-construction notification to the Department of Defense Siting
Clearinghouse. Department of Defense Siting Clearinghouse staff will
review the pre-construction notification and contact the project
proponent if they identify potential negative impacts to Department of
Defense operations, testing, and training missions.
We have added Note 4 to this NWP, which states that a copy of the
pre-construction notification will be provided to the Department of
Defense Siting Clearinghouse if the proposed activity involves an
overhead utility line constructed in waters of the United States. This
coordination process will not interfere or delay the district
engineer's decision on the pre-construction notification, which must be
made within the timeframes specified in the NWP general conditions. The
coordination process will consist of districts sending the Department
of Defense Siting Clearinghouse copies of pre-construction
notifications and NWP verifications, and Clearinghouse staff will work
with project proponents to address effects to military operations.
One commenter stated that the definition of a utility line in the
NWP is too expansive and should not include liquescent or slurry
substances. This commenter asked if utility lines could also be used to
transport waste products. One commenter stated that terms and
conditions of the NWP should require projects to use existing trenches
or cables whenever possible, and require that sidecast material be put
back in place within 24 hours. One commenter requested that temporary
fill be defined and that compensatory mitigation should be required for
temporary fills left in place for two years. One commenter said that
enforcing the time periods for temporary side casting is too difficult.
One commenter requested more detail regarding the circumstances under
which a district engineer would extend the period of temporary side
casting up to a total of 180 days. One commenter stated the side
casting in areas with known or probable sediment contamination should
be prohibited. One commenter stated the placement of excavated
materials into any waterway should be prohibited.
Water or sewer lines are generally recognized to be utility lines,
and are used to transport liquid or slurry substances. They may also be
used to transport waste products, such as sewage or industrial
byproducts. We do not agree that existing trenches or cable should be a
requirement of this NWP, since many new utility lines constructed in
waters of the United States result in minimal adverse effects on the
aquatic environment. However, project sponsors should consider the use
of existing trenches and cables where practicable as one way of
avoiding or minimizing adverse impacts to the aquatic environment,
which is required by general condition 23, mitigation. It is not
practicable to require side cast material to be put back into the
original trench or pit within 24 hours, and we have retained the
current language concerning temporary side casting. It is the district
engineer's discretion on whether to extend the period of temporary side
casting. That discretion would be based on the site-specific
environmental conditions, the activity, practicability considerations,
and other factors. District engineers can restrict or prohibit side
casting in areas where sediment contamination may be a concern.
Excavated materials are generally not placed in flowing waters, and
should be retained in areas outside of flowing waters with proper
sediment and erosion controls.
One commenter objected to authorizing the expansion of utility line
substations, stating that those activities should require individual
permits and a finding of compliance with the Clean Water Act Section
404(b)(1) Guidelines and public interest review.
The expansion of utility line substations does not generally
warrant a full public interest review and activity-specific Section
404(b)(1) Guidelines analysis since it is an expansion of an existing
facility. In response to a pre-construction notification, the district
engineer will review the proposed expansion of a substation and
exercise discretionary authority if it would result in more than
minimal individual and cumulative adverse effects on the aquatic
environment.
Two commenters stated the construction of temporary access roads
will require a submerged lands authorization and would require a
submerged land lease for long-term use.
The use of NWP 12 does not obviate the need for the project
proponent to obtain any other federal, state, or local permits that may
be required, including permits from states that hold title to submerged
lands.
One commenter said that this NWP should have fewer pre-construction
notification thresholds to expedite pipeline safety repairs and
infrastructure projects. One commenter supported retaining the \1/10\-
acre threshold pre-construction notification.
We believe all of the current pre-construction notification
thresholds are necessary because of the variety of utility line
activities authorized by NWP 12 (i.e., utility line construction,
maintenance, repair, and removal, the construction, maintenance, or
expansion of utility line substations, the construction or maintenance
of foundations for overhead transmission lines, and the construction of
access roads) and to allow district engineers
[[Page 10197]]
the opportunity to review those activities to determine whether they
will result in minimal adverse effects on the aquatic environment.
Pipeline maintenance may be authorized by NWP 3 or NWP 12, and use of
NWP 3 would not usually trigger a pre-construction notification
requirement. Many pipeline maintenance activities may also be
authorized by NWP 12, without pre-construction notification. The \1/
10\-acre pre-construction notification threshold remains in this NWP.
One commenter recommended that this NWP require the use of specific
equipment such as low ground pressure equipment and wide tires to
minimize adverse effects to wetlands. Another commenter said that this
NWP should be conditioned to require the use of best management
practices to reduce sediment loads into waters. One commenter stated
that this NWP does not require sufficient avoidance and minimization of
waters of the United States. One commenter suggested requiring the
installation of barriers next to utility line trenches to prevent
amphibians and reptiles from falling into the trench and to reduce
sediment transport into waters of the United States during
precipitation events. One commenter said that pipes installed over
rivers and streams should have shut-off valves to minimize the
potential for discharges to occur if the pipe is breached.
The use of equipment that minimizes adverse effects to waters of
the United States is addressed by general condition 11, equipment,
which requires permittees to take measures to minimize soil
disturbance, such as placing heavy equipment on mats when working in
wetlands, mudflats, or other waters. Division or district engineers may
condition this NWP, either through the regional conditioning process or
through activity-specific conditions added to an NWP 12 authorization,
to require the use of best management practices. General condition 23,
mitigation, requires permittees to design and construct their
activities to avoid and minimize adverse effects to waters of the
United States. A requirement to install barriers next to utility line
trenches, or the use of shut-off valves in pipes constructed over
waters, is more appropriately addressed through the regional
conditioning process or through activity-specific conditions added to
an NWP 12 authorization during the review of a pre-construction
notification or NWP verification request.
One commenter stated that this NWP could streamline the
authorization of offshore wind energy generation facilities, but two of
the terms and conditions may be problematic. The first is the
prohibition against side casting when sediments would be dispersed by
currents or other forces. The second is the \1/2\-acre limit, which may
prohibit use of this NWP to authorize the installation of cables that
transfer the energy generated by wind turbines.
The transmission cable that runs from an offshore wind energy
generation facility to a land-based facility or distribution system may
be constructed so that the trench for the cable is backfilled
immediately after the cable is laid into the trench. That immediate
backfilling would minimize dispersion by currents or other forces in
those waters. The placing of a power transmission cable on the sea bed
is considered a structure under our regulations for implementing
Section 10 of the Rivers and Harbors Act of 1899 (see 33 CFR 322.2(b)),
and not a loss of waters of the United States subject to the \1/2\-acre
limit in NWP 12.
One commenter recommended requiring coordination with Tribes to
avoid impacts to Tribal treaty natural resources and cultural
resources. Another commenter said that coordination with State Historic
Preservation Officers should be required to protect historic
properties.
Division engineers can regionally condition this NWP to require
coordination with Tribes, to ensure that this NWP does not adversely
affect Tribal treaty natural resources and cultural resources. General
condition 20, historic properties, addresses compliance with the
National Historic Preservation Act, which requires consultation for
activities that have the potential to cause effects to historic
properties, including tribal resources that meet the definition of
``historic property.'' General condition 17, tribal rights, requires
that no NWP activity or its operation may impair reserved treaty
rights, such as reserved water rights and treaty fishing and hunting
rights.
One commenter requested clarification that individual permits are
not automatically required for NWP 12 activities when a Corps district
participates as a cooperating agency for an environmental impact
statement.
Even though an environmental impact statement may be prepared for a
particular utility line, the National Environmental Policy Act process
does not prohibit the Corps from using NWP 12 to authorize the
construction, maintenance, repair, and removal of utility lines and
associated facilities in waters of the United States, as long as the
activity complies with all applicable terms and conditions and results
in minimal individual and cumulative adverse effects on the aquatic
environment. NEPA requires consideration of all environmental impacts,
not only those to aquatic resources, so there may well be situations
where aquatic impacts are minimal even though environmental impacts
more generally are not. These other environmental impacts would be
addressed by the lead agency preparing the environmental impact
statement. The district engineer will exercise discretionary authority
to require an individual permit for any utility line activity that he
or she determines does not meet the terms and conditions of NWP 12.
One commenter suggested modifying Note 1 to limit submission of NWP
12 pre-construction notifications and verifications to the National
Oceanic and Atmospheric Administration's National Ocean Service (NOS),
since NOS only produces charts for waters in the coastal United States,
Great Lakes, and United States territories.
We have modified Note 1 to require district engineers to send
copies of NWP 12 pre-construction notifications and verifications to
NOS in those regions of the country.
This NWP is reissued with the modifications discussed above.
NWP 13. Bank Stabilization. We proposed modifying this NWP by
removing the waiver provision in paragraph (c) that allowed district
engineers to authorize bank stabilization fills that exceeded one cubic
yard per running foot below the ordinary high water mark or high tide
line to encourage the use of bioengineered techniques for bank
stabilization. To conform with the proposed change to in paragraph (c),
we proposed to remove the third pre-construction notification threshold
for bank stabilization fills that exceeded one cubic yard per running
foot, since these fills would no longer be allowed. We also proposed
changing this NWP to authorize temporary structures and fills necessary
for the construction of bank stabilization activities.
Many commenters recommended that this NWP not be reissued, and
stated that all bank stabilization should be evaluated under individual
permit procedures. One commenter asserted that bank stabilization
activities should be authorized with NWP 3 in man-made ditches and
canals and NWP 13 in natural waterways. Two commenters said this NWP
should not authorize new bank stabilization activities. Some commenters
recommended modifying this NWP so that it would not authorize new
vertical bulkheads and seawalls.
[[Page 10198]]
One commenter stated that this NWP does not result in minimal
individual and cumulative adverse effects on the aquatic environment
because these activities accelerate coastal erosion and retreat.
Additional commenters said that these activities result in more than
minimal individual and cumulative effects. Some of these commenters
said that this NWP has more than minimal adverse effects on low-order
ephemeral and intermittent streams. One commenter said that this NWP
should not be applicable to both riverine and lacustrine systems and
recommended that separate NWPs be developed that would address the
different erosional processes in those systems. Several commenters
stated that this NWP should not be reissued because of adverse effects
to coastal environments, as well as sea turtles and other endangered
species and their habitats. Another commenter recommended that bank
stabilization only be permitted by this NWP if it is part of a habitat
improvement project or has other net improvements in aquatic function.
The terms and conditions for this NWP are appropriate for limiting
bank stabilization activities so that they have minimal individual and
cumulative effects on the aquatic environment, while allowing
landowners and other entities to protect their property and safety. NWP
3 only authorizes minor amounts of rip rap associated with maintenance
activities. It is more appropriate to authorize bank stabilization
activities in man-made waterways through NWP 13. In many coastal waters
and rivers it is necessary to utilize hard bank protection structures,
because wave energy and currents are too strong for bioengineering or
other techniques to successfully prevent or reduce erosion. We do not
agree that there should be separate NWPs developed to authorize bank
stabilization activities in riverine and lacustrine waters. Bank
stabilization that may affect endangered or threatened species require
pre-construction notification and compliance with general condition 18,
endangered species. We also do not agree that this NWP should be
limited to habitat improvement projects, because it is often necessary
to install bank stabilization structures and fills to protect property
and safety.
Two commenters said that NWP 13 should not be reissued because it
authorizes activities that may prevent retreat that would be necessary
to adapt to sea level rise caused by climate change. These commenters
also said that sea level rise needs to be considered in the decision on
whether to reissue this NWP. These commenters also stated that the
structures and fills authorized by NWP 13 exacerbate erosion in areas
where sea level rise will occur.
Coastal and riparian areas are dynamic landscapes. They are
constantly changing as a result of erosional and depositional
processes. Landowners seek Department of the Army authorization for
bank stabilization activities to protect their property and provide
safety. The purpose of NWP 13 activities is to protect land on which
residences, commercial buildings, infrastructure, and other features
are located. The Corps regulations recognize that a riparian landowner
has a right to protect his or her property from erosion (see 33 CFR
320.4(g)(3)). When a district engineer evaluates a permit application
for bank stabilization activities, including pre-construction
notifications for NWP 13 activities, he or she considers the current
environmental conditions at the site of the proposed activity, as well
as the reasonably foreseeable direct, indirect, and cumulative effects
that might be caused by the proposed activity. At the present time,
there is a considerable amount of uncertainty surrounding climate
change, and any associated sea level rise that may occur as a result of
climate change. To the extent there is reliable information about
projected sea level rise during the reasonably foreseeable future in
the vicinity of a proposed activity, the district engineer will take
that information into account when determining whether a proposed NWP
13 activity will have minimal individual and cumulative adverse effects
on the aquatic environment. We do not agree that the structures and
fills authorized by NWP 13 will accelerate erosion in areas affected by
changing sea level rise caused by climate change. The bank
stabilization structures and fills authorized by this NWP must be
properly designed, so that they have minimal individual and cumulative
adverse effects on coastal and riparian erosion and deposition
processes. As sea level rise occurs, bank stabilization activities may
no longer be effective, and it may be necessary for landowners to
relocate.
Two commenters suggested limiting all projects to a maximum length
of 500 linear feet, except for allowing bioengineering projects to
exceed that length on a case-specific basis if the district engineer
waives that limit. One commenter recommended not allowing vertical
bulkheads longer than 500 feet. One commenter recommended limiting
replacement of vertical bulkheads and seawalls to a maximum length of
200 feet. Another commenter recommended a 300 linear foot maximum
project length for shoreline protection on coastal areas or lakes. One
commenter suggested a 300 linear foot maximum length for bioengineering
projects and a 150 foot maximum length for all other bank stabilization
projects. Two commenters requested clarification regarding project
length in paragraph (b) as it relates to activities that stabilize both
banks (left and right) of a stream. Many commenters supported the
district engineer waiver for the 500 linear foot limit for any
projects.
The limits in this NWP are sufficient to ensure that the NWP
authorizes only those activities that have minimal adverse effects on
the aquatic environment, although division engineers may regionally
condition the NWP to reduce those limits to account for local
environmental conditions and the ecological functions and services
provided by waters of the United States in those areas. For streams,
the linear foot limit in paragraph (b) applies to a single and complete
project for the bank stabilization activity measured along the length
of the stream segment, which may involve discharging dredged or fill
material along either one or both stream banks. We have retained the
ability for district engineers to waive the 500 linear foot limit.
One commenter requested a definition for bank stabilization. Many
commenters asked for a definition of bioengineering. One commenter said
that bioengineering techniques should include living plant material and
soil as the primary structural components to reinforce soil and to
stabilize slopes. One commenter recommended requiring native vegetation
in bioengineering projects where vegetation is the primary or secondary
component of a project.
We do not believe that a definition of bioengineering is necessary
because there is a wide variety of bioengineering techniques and
project proponents and district engineers generally understand what it
means in a local context. It is not possible at the national level to
envision every possible variation of technique and materials that would
reasonably fit within the meaning of this term, but generally
bioengineering involves the use of a combination of vegetation and hard
materials instead of only hard materials such as rip-rap for bank
stabilization. Also, as explained below, the final NWP does not make a
distinction between bioengineering and other bank stabilization
techniques. We agree that bioengineering, for the purposes of bank
stabilization, includes providing protection from erosion and
[[Page 10199]]
providing habitat for aquatic species. We also agree that bioengineered
techniques can slow erosion rates and can have beneficial effects on
habitat for macroinvertebrates and fish which is why we proposed to
modify this NWP to encourage greater use of this technique.
Several commenters recommended the NWP encourage the use of natural
materials over riprap. One commenter said that only native plant
species should be used for bioengineered bank stabilization. Another
commenter recommended using natural stream design methods for erosion
prevention. Several commenters objected to the placement of plant
material in waters of the United States, and also objected to the
planting of willows and similar species in and along waterways because
these types of woody plants clog waterways and cause maintenance
problems at bridge and culvert crossings.
Division engineers can regionally condition this NWP to encourage
bioengineering or the use of natural materials for bank stabilization
in waters subject to lower energy waves and currents. The use of plant
materials as a component of a bank stabilization activity can have
beneficial environmental effects, such as providing shading and habitat
for near-shore organisms, or for riparian ecosystems. Proper
maintenance should be done to remove plants that colonize waterways,
especially at culverts or bridges. We have added a provision to this
NWP stating that if bioengineering or vegetative bank stabilization is
used, invasive plant species should not be used, because Executive
Order 13112, Invasive Species, states that agencies should not
``authorize, fund, or carry out actions that it believes are likely to
cause or promote the introduction or spread of invasive species in the
United States or elsewhere.'' The Executive Order states there are
economic, ecological, and human health impacts that are caused by
invasive species, and we believe that invasive species should not be
used for bioengineering bank stabilization activities authorized by
this NWP because of the adverse environmental effects those species can
cause.
Many commenters supported the proposed modification of paragraph
(c) to only allow bioengineering projects to exceed one cubic yard per
running foot, and to not allow waivers from the district engineer for
other types of projects. Many other commenters objected to limiting
that flexibility to bioengineering techniques, stating that bank
protection structures are necessary in high energy coastal and riverine
environments, and said that the waiver in the 2007 NWP 13 should be
reinstated. Some commenters suggested removing paragraph (c) entirely.
Several of these commenters thought the proposal would encourage
bioengineering methods for achieving the necessary bank stabilization.
Many commenters stated that the waiver to the cubic yard limit should
be removed from paragraph (c) to ensure that the NWP authorizes only
those activities with minimal adverse effects on the aquatic
environment. Many commenters asserted that bioengineering methods for
bank stabilization are unproven and not as effective at preventing
erosion as hard structures. A few commenters suggested that the
preference for bioengineering would be a hardship on local governments.
Another commenter suggested that bioengineering techniques are rarely
successful in arid areas and in ephemeral waterways. Another commenter
added that the hydraulic forces in large rivers and tidal areas require
the use of large stone, the size of which exceeds the one cubic yard
per running foot average size, and are not conducive to bioengineering.
Several commenters said that bioengineering is not always appropriate
for protecting infrastructure such as roads and bridges, and requested
that the one cubic yard per foot waiver be left in place to protect
these structures. One commenter suggested modifying the NWP to require
alternatives analyses for each proposed project using an established
hierarchy, beginning with bioengineering as the most preferable bank
stabilization method and ending with the hard bank stabilization
structures. One commenter observed that bank stabilization using
bioengineering or any other method will still result in adverse
effects, and suggested all bank stabilization activities should be
located landward of the ordinary high water mark.
In response to the many commenters that objected to removing the
provision allowing district engineers to waive, after reviewing a pre-
construction notification, the one cubic yard per running foot limit,
we have reinstated that provision in this NWP. We have also reinstated
the third pre-construction notification threshold that was in the 2007
version of NWP, which requires pre-construction notification for
discharges exceeding one cubic yard per running foot along the bank
below the plan of the ordinary high water mark or the high tide line.
We acknowledge that bioengineering may not be appropriate in all
waters, because it may not result in effective bank stabilization. We
have thus determined that it is not appropriate to establish a
hierarchy of preferred bank stabilization options because such
decisions are best left to district engineers that review project-
specific pre-construction notifications, and can take into account the
characteristics of the waterbody and the surrounding area, and
determine which bank stabilization method would be most effective and
environmentally preferable. We agree, however, that bioengineering
techniques may be environmentally preferable in many situations and
that project proponents should consider such techniques where
practicable in order to comply with the general requirement to avoid
and minimize adverse effects to the aquatic environment. It is not
practicable to require all bank stabilization activities to be located
landward of the ordinary high water mark.
One commenter asked if the volume of fill buried deeply below
bioengineering or turf reinforcement mats could be exempted from the
volume of fill that counts towards the one cubic yard per running foot
limit in paragraph (b). Another commenter said that buried stone does
not meet the regulatory definition of fill material, and said the
volume of stone buried below the ordinary high water mark should not
count towards the one cubic yard per running foot limit. One commenter
suggested replacing the words ``below the plane of'' with ``within
the'' when describing the ordinary high water mark in paragraph (c).
The definition of ``fill'' found in 33 CFR part 323.2 clearly
states that rock is fill material, and burying rock in a waterway
constitutes a discharge of fill material. The volume of the buried
stone, along with all other fill material, must be determined and that
volume placed below the plane of the ordinary high water mark or high
tide line is considered when reviewing the proposed project. We have
retained the language in NWP because the phrase ``below the plane of ''
more accurately describes the Corps jurisdiction in waters of the
United States. To the extent that the location and type of fill placed
below the plane of the ordinary high water mark affects the potential
for adverse effects to the aquatic environment, the district engineer
would consider such factors in deciding whether to grant a waiver
request.
Several commenters said that paragraph (d) should prohibit fills in
special aquatic sites, including wetlands. One commenter opposes
removing the waiver provision in
[[Page 10200]]
paragraph (d) for work in special aquatic sites.
We believe that the pre-construction notification process affords
the district engineer an appropriate opportunity to review proposed
activities in special aquatic sites. Many streams and shorelines
include, or are bordered by, special aquatic sites, and precluding use
of this permit in these areas severely limits its usefulness for
projects that have no more than minimal adverse effects on the aquatic
environment. Additionally, it may be beneficial in some watersheds to
stabilize eroding banks, even though small amounts of special aquatic
sites may be impacted by a bank stabilization activity. Paragraph (d)
requires a written determination concluding that the activity will
result in minimal adverse effects. If a written waiver is not issued by
the district engineer, then this NWP does not authorize such activities
and the project proponent will have to obtain another form of DA
authorization.
Several commenters expressed support for inclusion of temporary
fills required to accomplish work authorized under this NWP. One
commenter said that temporary fills should remain in place if their
removal would do more damage than allowing them to remain in place. One
commenter requested a list of mandatory best management practices
developed for temporary fills authorized by this NWP.
If the district engineer determines that temporary fills should
remain in place those fills may be authorized by another NWP, a
regional general permit, or individual permit. We do not agree that
specifically requiring best management practices is appropriate,
although division engineers may regionally condition this NWP to add
appropriate best management practices. District engineers may also add
conditions to the NWP to require specific best management practices for
a particular activity.
Several commenters stated that pre-construction notification should
be required for all activities authorized by this NWP. One commenter
requested that no pre-construction notification be required for any
bank stabilization exceeding one cubic yard per running foot in
ephemeral and intermittent waters. One commenter suggested removing all
pre-construction notification requirements from work done under this
NWP in man-made waterways. One agency recommended lowering a pre-
construction notification threshold to 100 feet for hard bank
stabilization projects such as riprap, and 300 feet for bioengineering
projects. One commenter claimed it would be burdensome and costly to
submit a pre-construction notification for every bank stabilization
project.
We do not agree that it is necessary to require pre-construction
notification for all activities authorized by this NWP. A large number
of small bank stabilization activities are conducted each year that
result in minimal adverse effects on the aquatic environment. We
believe that the existing pre-construction notification thresholds are
sufficient for satisfying the minimal adverse effects requirement for
general permits, and division engineers can regionally condition this
NWP to impose lower pre-construction notification thresholds, including
requiring pre-construction notification for all activities.
Two commenters said that bank stabilization activities must avoid
impacting tribal rights, tribal natural resources, and tribal cultural
resources. Many commenters said that while bank stabilization projects
may reduce erosion at a site, they may transfer or accelerate erosion
in other areas of a waterbody.
General condition 17, tribal rights, prohibits the impairment of
all reserved tribal rights. We acknowledge that bank stabilization
activities may cause indirect effects in other areas of the waterbody
and those indirect effects should be evaluated during the review of a
pre-construction notification, if it is required. Activities that do
not require a pre-construction notification have minimal adverse
effects on the aquatic environment.
Some commenters asked that compensatory mitigation be required for
all activities authorized by this NWP. A few commenters remarked that
compensatory mitigation should be required for adverse effects on high
quality riparian areas. Another commenter said that mitigation should
be required when sheet piling is used to stabilize banks.
We do not believe compensatory mitigation should be required for
all bank stabilization activities. District engineers will determine
when compensatory mitigation is necessary to ensure that an activity
results in minimal individual and cumulative adverse effects on the
aquatic environment.
This NWP is reissued with the modifications discussed above.
NWP 14. Linear Transportation Projects. There were no changes
proposed for this NWP. One commenter suggested that this NWP should
authorize only the maintenance of existing linear transportation
projects because the construction of new linear transportation projects
results in more than minimal adverse environmental effects. One
commenter said that this NWP should not authorize parking lots. One
commenter stated that activities in tidal waters should not be
authorized by this NWP because any proposed linear transportation
project impacting tidal wetlands require an individual permit to more
thoroughly assess impacts on those aquatic habitats.
This NWP should not be limited to authorizing the maintenance of
existing linear transportation projects. The terms and conditions of
this NWP, including its acreage limits and pre-construction
notification thresholds, provide an effective means for authorizing
linear transportation projects with minimal individual and cumulative
adverse effects on the aquatic environment. Parking lots may be an
integral part of a single and complete linear transportation project
and may be authorized under this NWP. Small linear transportation
projects constructed or maintained in tidal waters may be authorized by
this NWP, if they comply with appropriate thresholds and result in
minimal adverse effects on the aquatic environment. Division engineers
can regionally condition this NWP to restrict or prohibit the use of
this NWP to authorize structures or fills in tidal waters where
necessary.
Most commenters suggested adding a linear foot limit to this NWP to
ensure that it only authorizes activities with minimal adverse effects
on the aquatic environment, stating that the current NWP authorizes
large amounts of small streams to be permanently lost or significantly
altered. One commenter recommended a 100 linear foot limit for the loss
of perennial, intermittent, and ephemeral streams. One commenter said
that the \1/2\-acre limit is too large when compared to other NWPs that
limit impacts to \1/10\-acre. One commenter suggested limiting private
roads to 200 feet in length, with a maximum width of 16 feet. One
commenter recommended that public road projects with multiple crossings
should have a maximum cumulative limit of two acres for all crossings
associated with that project.
We believe the \1/2\-acre and \1/3\-acre limits are appropriate for
ensuring that the NWP authorizes only those linear transportation
projects that result in minimal individual and cumulative adverse
effects on the aquatic environment. Division engineers can regionally
condition this NWP to decrease these acreage limits or impose linear
foot limits to provide additional protection for wetlands and other
waters
[[Page 10201]]
in a particular district or region. We do not agree that public and
private crossings should have different acreage limits. The
environmental effects are not dependent on the status of the entity who
proposes to construct the project. A 200 linear foot limit was removed
from NWP 14 in 2007 to simplify this NWP. The Corps is not aware of
situations where this change resulted in projects being authorized that
had more than minimal adverse effects.
One commenter asserted that using this NWP prevents the public from
commenting on large transportation projects. Another commenter said
that this NWP should not authorize expansion of existing projects,
because it discourages avoidance and minimization and is contrary to
the 404(b)(1) Guidelines. One commenter stated that use of this NWP for
the expansion, modification, or improvement of previously authorized
projects could result in cumulative impacts that exceed the acreage
limits and said the impacts of previously authorized projects should
count towards the acreage limit.
Linear transportation projects that involve small losses of waters
of the United States and result in minimal adverse effects on the
aquatic environment would not generally generate substantive public
comments in response to a public notice and should not require public
notices. It is appropriate to authorize expansions, modifications, or
improvements to existing projects, as long as those activities comply
with the terms and conditions of the NWP, including the applicable
acreage limit. An expansion, modification, or improvement of an
existing project has few practicable alternatives available because it
is a change to a previously constructed project. Alternatives that
would involve relocating an existing project are likely to result in
more adverse effects to the aquatic environment. An expansion,
modification, or improvement of a previously authorized single and
complete linear transportation project should include the previously
authorized losses of waters of the United States when determining
whether the acreage limit would be exceeded by the expanded, modified,
or improved project, if the expansion, modification, or improvement is
not a separate single and complete project. Factors that may affect
this determination include the length of time between the original
project and the expansion, modification or improvement; the degree of
independent utility of the original project and the expansion,
modification or improvement; and the degree to which the expansion,
modification or improvement may have been already envisioned, or
planning might already have begun, at the time the original project was
authorized. Under no circumstance will district engineers allow
``piecemealing'' of projects (for this or any other NWP) in order to
meet thresholds.
One commenter requested that the term ``minimum necessary'' used in
the first paragraph of this NWP be defined. One commenter asked if
temporary fill may be put in place for up to two years without
requiring any mitigation, and another commenter requested a definition
for ``temporary.'' One commenter suggested that culverts or other
appropriate measures should be required to maintain existing drainage
patterns, all stream crossings should span the bankfull width of a
stream, and in cases where bottomless culverts or bridge structures are
not used, the bottom of the structure should match stream slope.
Another commenter suggested that the NWP should require the use of best
management practices to avoid sediment loading of waters and that best
management practices should be used in upland areas and within waters
to protect downstream water quality.
The decision as to whether a stream channel modification is the
``minimum necessary'' and whether a fill is ``temporary'' is to be
determined on a case-by-case basis, after considering the specifics of
the proposed activity and the types of aquatic resources proposed to be
impacted by the linear transportation project. General condition 2,
aquatic life movements, and general condition 9, management of water
flows, require that linear transportation projects be designed to
sustain corridors for aquatic life movements and maintain, to the
maximum extent practicable, the pre-construction course, condition,
capacity, and location of streams and other open waters. General
condition 12, soil erosion and sediment controls, requires permittees
to take appropriate measures to reduce or prevent movements of sediment
into waters during construction. Water quality management measures may
also be required by district engineers on a case-by-case basis after
evaluating a pre-construction notification.
One commenter said that pre-construction notification should be
required for stream impacts that exceed 100 linear feet. Another
commenter stated that any stream channel modifications should require
pre-construction notification. One commenter suggested requiring low
ground pressure equipment, wide tires, rubberized racks, lightweight
equipment, and the use of varied paths to avoid repeatedly crossing
wetlands at the same location, to protect wetlands. One commenter
suggested sending pre-construction notifications to tribes to avoid
impacts to tribal treaty natural and cultural resources. One commenter
recommended that the Corps consult with the Federal Highway
Administration to streamline projects and align with their efforts.
The present pre-construction notification thresholds provide
sufficient protection for streams, and division engineers can
regionally condition this NWP to require pre-construction notification
for proposed losses of stream beds that would exceed a specified
amount. Streams with riffle and pool complexes are considered to be
special aquatic sites under the 404(b)(1) Guidelines and would require
pre-construction notification. General condition 11, equipment,
establishes requirements for equipment working in wetlands or mudflats
and we believe this general condition provides sufficient protection
for those types of construction impacts. Division engineers can
regionally condition this NWP to require pre-construction notification
for activities that may affect tribal treaty resources, and consult
with those tribes before making a decision on whether the activity is
authorized by this NWP. This NWP, as well as other NWPs such as NWP 23,
provides a means for streamlining the authorization of linear
transportation projects and working cooperatively with the Federal
Highway Administration and state departments of transportation.
The NWP is reissued without change.
NWP 15. U.S. Coast Guard Approved Bridges. We proposed to modify
this NWP by removing reference to the U.S. Coast Guard authorizing the
discharge of dredged or fill material into waters of the United States
as part of their bridge permit. We also proposed to reference the U.S.
Coast Guard's bridge permitting authority under Section 9 of the Rivers
and Harbors Act of 1899 and other applicable laws. We proposed to add
section 10 to the regulatory authorities so that discharges authorized
under Section 404 of the Clean Water Act would be also authorized under
the Rivers and Harbors Act.
One commenter agreed with adding section 10 authority to this NWP,
which they believed would help clarify a sometimes confusing permitting
scenario. Another commenter objected to adding section 10 authority,
stating that the section 9 permits issued by the
[[Page 10202]]
U.S. Coast Guard for bridge and causeway construction satisfy all
requirements of the Rivers and Harbors Act of 1899 and adding section
10 authorization is not necessary. One commenter requested
clarification regarding the applicability of section 10 to the U.S.
Coast Guard approved bridges over both navigable-in-fact and
historically navigable waters of the United States. One commenter
requested definitions of the terms ``causeway'' and ``approach fills.''
We agree that the U.S. Coast Guard's section 9 permit satisfies the
permit requirements of the Rivers and Harbors Act and have removed the
reference to section 10 from the NWP. Discharges of dredged or fill
material associated with the construction of bridges across navigable
waters of the United States require separate authorization under
Section 404 of the Clean Water Act, since navigable waters of the
United States are also considered waters of the United States under the
Clean Water Act, and discharges of dredged or fill material into waters
of the United States require section 404 permits, unless they are
eligible for an exemption from permit requirements. Historically
navigable waters of the United States may still be subject to
jurisdiction under Rivers and Harbors Act of 1899, depending on the
case-specific circumstances. We do not believe it is necessary to
define what causeways and approach fills are, since they would be
identified in the specific plans approved by the U.S. Coast Guard as
part of their section 9 permit.
This NWP is reissued with the modification discussed above.
NWP 16. Return Water From Upland Contained Disposal Areas. We did
not propose any changes to this NWP. This NWP provides section 404
authorization for the discharge of return water from a dredged material
placement facility located in uplands, because that discharge of return
water into waters of the United States has been administratively
defined as a ``discharge of dredged material'' (see 33 CFR
323.2(d)(1)(ii)). One commenter said the NWP should address both the
technical requirements and water quality of the return water due to the
potential for the return water to degrade water quality for natural
heritage resources. One commenter said that pre-construction
notification should be required for activities authorized by this NWP
to ensure that suspended contaminated sediments do not reenter
waterways and impact state submerged lands.
The water quality certification issued for a specific dredging
project should address any water quality concerns for natural heritage
resources. We do not agree that pre-construction notification should be
required for this NWP because any required sediment testing would
identify contaminants. The sediment testing and potential impacts to
water quality are more appropriately considered through the water
quality certification process. We have modified this NWP to clarify
that disposal of dredged material in an area that has no waters of the
United States does not require a section 404 permit, because disposal
of dredged material may occur in non-jurisdictional wetlands and
waters, not just uplands.
The NWP is reissued with the modification discussed above.
NWP 17. Hydropower Projects. No changes were proposed for this NWP.
Several commenters said that this category of activities is
inappropriate for authorization under an NWP because of the scope and
scale of these projects. One commenter stated that these activities
result in more than minimal adverse effects on the aquatic environment,
especially downstream effects such as the loss of riffle and pool
complexes and degradation of water quality through increased sediment
loads.
This NWP authorizes small hydropower projects that have minimal
adverse effects on the aquatic environment. All activities authorized
by this NWP require pre-construction notification, so that district
engineers can review each proposed hydropower project and make a case-
specific determination whether the minimal effects requirement has been
met. Discretionary authority will be exercised, and another form of
Department of the Army authorization would be required, if the district
engineer determines that a particular hydropower project would result
in more than minimal individual and cumulative adverse effects to the
aquatic environment or any other public interest review factor.
District engineers may also require compensatory mitigation to offset
losses of aquatic resource functions.
This NWP is issued without change.
NWP 18. Minor Discharges. We did not propose modifications to this
NWP. Several commenters expressed support for the reissuance of this
NWP. A few commenters said that this NWP does not comply with the
``similar in nature'' requirement for general permits. Other commenters
asserted that the cumulative impacts resulting from the use of this NWP
would be more than minimal. Another commenter said that this NWP should
not authorize discharges into waters that provide forage fish habitat
or that contain aquatic vegetation. One commenter stated that the NWP
should not be used to authorize discharges in rare aquatic environments
such as vernal pools.
We believe that the small discharges of dredged or fill material
authorized by this NWP comply with the similar in nature requirement
for general permits. District engineers will review pre-construction
notifications and may assert discretionary authority to add activity-
specific conditions to the NWP authorization to ensure that the
activity results in minimal adverse environmental effects. Division
engineers may regionally condition this NWP to restrict or prohibit its
use in specific waters or categories of waters, including fish foraging
areas, vegetated shallows, or vernal pools.
One commenter stated that the limit for this NWP should only be
expressed in terms of area filled (i.e., up to \1/10\-acre) and not
include the volumetric limit (i.e., 25 cubic yards). Another commenter
said that all discharged material should consist of clean,
uncontaminated sand, crushed rock, or stone. One commenter recommended
adding language requiring that the discharge will not result in
significant changes to stream geomorphology or hydrology, and that the
discharge will not impede navigation.
The 25 cubic yard limit for regulated excavation activities and the
\1/10\-acre limit for losses of waters of the United States caused by
discharges of dredged or fill material are both necessary to ensure
that this NWP authorizes only those activities that have minimal
individual and cumulative adverse effects on the aquatic environment.
General condition 6, suitable material, prohibits the use of unsuitable
fill material. The fill material must not have toxic pollutants that
are present in toxic amounts. Compliance with general condition 9,
management of water flows, will ensure that the activity does not cause
more than minimal adverse effects to stream geomorphology or hydrology.
General condition 1, navigation, states that NWP activities cannot
cause a more than minimal adverse effect to navigation.
This NWP is reissued without change.
NWP 19. Minor Dredging. There were no changes proposed for this
NWP. One commenter recommended that the NWP include a cumulative volume
limit for multiple single and complete dredging projects. One commenter
recommended modifying the NWP to require that dredge material be
limited to a maximum of 25 cubic yards from a 1,000 square foot area,
not disturb sediments in an area known or
[[Page 10203]]
suspected to contain toxic pollutants, and the disposal of dredged
material at an upland location. Another commenter said that pre-
construction notification should be required for all activities to
ensure that sediments are not contaminated and do not cause impacts to
state owned land. One commenter stated that the activities authorized
by this NWP are not similar in nature and do not result in cumulative
minimal adverse environmental effects.
This NWP may be used only once for each single and complete project
(see general condition 15, single and complete project). Therefore,
each single and complete dredging project is subject to the 25 cubic
yard limit. District engineers will also review pre-construction
notifications and other requests for NWP verifications, and will
exercise discretionary authority if they determine that the use of this
NWP in a particular region is resulting in more than minimal cumulative
adverse effects on the aquatic environment. We believe that the 25
cubic yard limit is sufficient to satisfy the minimal adverse
environmental effects requirement for general permits, and that an
areal limit, such as the 1,000 square feet recommended above, is not
necessary. Division engineers may impose regional conditions on this
NWP to restrict or prohibit its use in waters known to have
contaminated sediments or in waters where there is sufficient reason to
believe that there are contaminated sediments, that would cause more
than minimal adverse effects to water quality if they were disturbed by
these minor dredging activities. A separate Department of the Army
authorization must be obtained if the project proponent plans to
deposit the dredged material into waters of the United States,
including jurisdictional wetlands. Absent such authorization, the
dredged material must be deposited in an upland area or an approved
dredged material disposal facility.
This NWP is reauthorized without change.
NWP 20. Response Operations for Oil and Hazardous Substances. We
proposed to change the name of this NWP, and modify its terms and
conditions to authorize a wider set of activities, such as containment
and mitigation actions, to more effectively authorize efforts to manage
releases of oil or hazardous substances. We also proposed to authorize
training exercises for the cleanup of oil and hazardous substances,
including those that involve temporary structures or fills.
Five commenters expressed support for the proposed changes to this
NWP. One commenter objected to the proposed modifications, stating that
the NWP could authorize large dredge and fill operations that would
result in net adverse effects on the aquatic environment that would be
more than minimal. One commenter stated that the NWP should be limited
to interim response activities and that a separate permit should be
required for final restoration response. Another commenter said that
there should be a requirement to remove temporary structures and fill.
This commenter also recommended that the NWP include criteria for
temporary structures or fills, such as a requirement to restore
wetlands to the maximum extent practicable, to ensure there are no
lasting impacts from these activities. A commenter said that this NWP
should require coordination with the appropriate state wetland or water
resources program.
This NWP authorizes activities in waters of the United States to
remediate spills of oil and hazardous substances, which normally
results in environmental benefits. We do not agree that the NWP should
be limited to interim responses. It should also authorize the final
response activity that results in the removal of the oil or hazardous
substances, as well as the authorization to remove any temporary
structures or fills, to the extent that a Department of the Army permit
is required to remove such temporary structures or fills. General
condition 13, removal of temporary fills, requires temporary fills to
be removed in their entirety, and the affected areas revegetated, if
necessary. We do not agree that this NWP should require coordination
with state wetland or water resource agencies, since those agencies are
likely to have an independent authority to regulate such response
activities, as well as their own procedures for reviewing and approving
those activities. As a practical matter, such remediation efforts
almost always involve coordination among multiple agencies.
This NWP is reissued as proposed.
NWP 21. Surface Coal Mining Activities. We proposed three options
concerning this NWP. The first option was not to reissue NWP 21 and to
let it expire on March 18, 2012. The other two options consisted of
reissuing the NWP with modifications. Option 2 was to reissue NWP 21
with a \1/2\-acre limit, including a 300 linear foot limit for the loss
of stream bed. Under Option 2, NWP 21 would not authorize discharges of
dredged or fill material into waters of the United States to construct
valley fills. Option 3 was similar to Option 2, but under Option 3 NWP
21 could authorize discharges of dredged or fill material into waters
of the United States to construct valley fills. In the February 16,
2011, proposal, Option 2 was identified as the Corps preferred option.
Both Options 2 and 3 require a pre-construction notification for
activities authorized by NWP 21, and permittees would have to receive
written authorization from the district engineer prior to commencing
the activity.
A large majority of commenters supported Option 1 and opposed the
reissuance of NWP 21, including any modification of that NWP. Over
26,000 of those comments were form letters. Several commenters
recommended adopting Option 2. Two commenters supported Option 3. Many
commenters stated that NWP 21 should be reissued without change from
the NWP issued in 2007.
While some commenters expressed support for Option 1, they also
said that if NWP 21 is to be reissued, Option 2 should be selected and
modified to remove the provision allowing district engineers to waive
the 300 linear foot limit for the loss of intermittent or ephemeral
stream bed. Another commenter stated that if NWP 21 is reissued, it
should not authorize any losses of intermittent or perennial streams.
We believe that district engineers should have the ability to waive
the 300 linear foot limit for the loss of ephemeral or intermittent
stream bed if they make a case-specific determination that the proposed
activity will result in minimal individual and cumulative adverse
effects on the aquatic environment. For proposed activities under
paragraph (b) of NWP 21 that would result in the loss of greater than
300 linear feet of intermittent or ephemeral stream bed, district
engineers will coordinate the pre-construction notifications with the
resource agencies, to solicit their comments (see paragraph (d) of
general condition 31). Those comments will be used by the district
engineer in making his or her minimal adverse effects determination.
The loss of intermittent or perennial streams caused by NWP 21
activities may still result in minimal individual and cumulative
adverse effects on the aquatic environment, and in such cases
authorization by NWP is appropriate. Note that the 300 linear foot
limit may not be waived for perennial streams. Activities authorized
under paragraph (a) of NWP 21 do not require agency coordination
because paragraph (a) does not authorize any expansion of surface coal
mining activities in waters of the United States and the district
engineer previously determined, and must again
[[Page 10204]]
confirm in writing, that those activities will result in minimal
individual and cumulative adverse effects and qualify for NWP
authorization. Many of the surface coal mining activities authorized
under the 2007 NWP 21 already had agency coordination because they
resulted in the loss of greater than \1/2\-acre of waters of the United
States.
Many commenters stated their preference for Option 2 because it
would not allow valley fills for surface coal mining activities, which
they believe substantially alter watersheds and associated headwater
streams, and generally are alleged to cause more than minimal adverse
effects on the aquatic environment. One commenter suggested adding a
provision that would prohibit the use of NWP 21 for activities
associated with mountain-top removal mining.
We have selected Option 2 for the reissuance of NWP 21, and have
made some additional modifications to reduce hardships on permittees
who previously obtained authorization under the NWP 21 issued on March
12, 2007, and invested substantial resources in reliance on that NWP
authorization. These modifications are discussed in greater detail
below. In addition, we have added a definition of ``valley fill'' to
the NWP to clarify the activities to which the valley fill prohibition
applies. For the purposes of this NWP, a ``hollow fill'' is considered
a valley fill. This NWP authorizes discharges of dredged or fill
material into waters of the United States when those discharges are
associated with surface coal mining activities. The Corps review is
focused on the individual and cumulative adverse effects to the aquatic
environment, and determining appropriate mitigation that may be needed
to ensure that the adverse effects on the aquatic environment are
minimal, individually and cumulatively. It does not extend to the
mining operation as a whole. The Surface Mining Control and Reclamation
Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., and its implementing
regulations address the environmental impacts of proposed surface coal
mining operations as a whole, including adverse effects to uplands and
changes in land use. SMCRA is administered by the Office of Surface
Mining Reclamation and Enforcement and states with approved regulatory
programs under SMCRA.
Two commenters supported Option 3, and they said the production of
energy from all sources, including surface-mined coal, is vitally
important to the short-term economic recovery of the United States and
the long-term energy independence and economic prosperity of our
country. Another commenter said there is no need to limit NWP 21 to \1/
2\-acre and 300 linear feet and prohibit valley fills, because district
engineers review every pre-construction notification and can require an
individual permit if necessary.
We have adopted Option 2 because it provides greater assurance that
NWP 21 will authorize only those discharges of dredged or fill material
into waters of the United States that have minimal individual and
cumulative adverse effects on the aquatic environment. Surface coal
mining activities that involve discharges of dredged or fill material
that require section 404 permits but do not qualify for NWP 21 may be
authorized by other forms of Department of the Army authorization, such
as individual permits or regional general permits. We have added the
\1/2\-acre limit, and the 300 linear foot limit for the loss of stream
bed, to make this NWP consistent with many of the other NWPs (e.g.,
NWPs 29, 39, 40, 42, 43, 44, and 51). We have also added a prohibition
against using this NWP to authorize discharges of dredged or fill
material into waters of the United States to construct valley fills.
Such limits are necessary to constrain the adverse effects to the
aquatic environment, to ensure compliance with the statutory
requirement that general permits, including NWPs, may only authorize
those activities that have minimal individual and cumulative adverse
effects on the aquatic environment. We do not believe it is efficient
to rely on the pre-construction notification process alone to ensure
minimal adverse environmental effects. Many other NWPs use a
combination of acreage and/or linear foot limits and pre-construction
notification requirements to ensure compliance with Section 404(e) of
the Clean Water Act, as well as 33 CFR 322.2(f) and 33 CFR 323.2(h).
Previous versions of NWP 21 did not have any acreage or linear foot
limits, and relied solely on the pre-construction notification review
process and permit conditions to reduce adverse effects on the aquatic
environment to satisfy the minimal adverse environmental effects
requirement for general permits. We believe that approach is no longer
appropriate because of the inconsistency with other NWPs, the
possibility that larger losses of waters of the United States might be
authorized, and the difficulty of documenting minimal adverse effect
determinations for losses of aquatic resource area and functions that
exceed those allowed in other NWPs. We note that part of the basis for
the earlier approach was the environmental review that occurs in
connection with obtaining a SMCRA permit, and that the SMCRA
regulations related to stream protection have changed since the
previous NWP 21 was issued.\1\ The new acreage and linear foot limits
will ensure that this NWP contributes no more than minimal individual
and cumulative adverse effects to the aquatic environment, by limiting
the amount of waters of the United States that can be filled by each
NWP 21 activity.
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\1\ The Office of Surface Mining has announced its intention to
further revise these requirements however such revisions will not be
in place at the time the NWPs are reissued. The Corps may reconsider
these limits in future promulgations of the NWPs based on its
experience and any changes in the broader regulatory context.
---------------------------------------------------------------------------
Many commenters said the Corps should fulfill its June 2009
determination to prohibit the use of NWP 21 to authorize surface coal
mining activities in six states in Appalachia because these activities
result in more than minimal adverse effects to the aquatic environment,
individually and cumulatively. Some commenters said the proposed
reissuance of NWP 21 is contrary to the Corps June 18, 2010, decision
to suspend NWP in the Appalachian region of Kentucky, Ohio,
Pennsylvania, Tennessee, Virginia, and West Virginia, which stated that
continued use of this NWP may result in more than minimal adverse
effects to aquatic resources. Many commenters stated that surface coal
mining activities in Appalachia have resulted in the loss of a couple
of thousand miles of streams, substantially degraded water quality, and
are harmful to the health and drinking water of Appalachian citizens.
They also said the Corps should follow science and stop issuing
permits, including individual permits, for surface coal mining
activities in these six Appalachian states because those activities
cause significant degradation of waters of the United States, and this
region cannot afford to lose more of its vital natural resources.
In accordance with the June 11, 2009, memorandum of agreement
implementing the interagency action plan on Appalachian Surface Coal
Mining, which was signed by the Department of the Army, the Department
of Interior, and the U.S. Environmental Protection Agency, the Corps
issued a proposal in the Federal Register on July 15, 2009, to modify
NWP 21 so that it would not authorize discharges of dredged or fill
material into waters of the United States in the Appalachian region of
Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and
[[Page 10205]]
West Virginia (see 74 FR 34311). In the June 18, 2010, issue of the
Federal Register (75 FR 34711), the Corps announced the suspension of
NWP 21 in the Appalachian region of six states (i.e., Kentucky, Ohio,
Pennsylvania, Tennessee, Virginia, and West Virginia) and said that it
would consider modifying NWP 21.
As a result of our review of the comments received in response to
the February 16, 2011, proposal we have determined that it would be
appropriate to adopt Option 2 and substantially modify NWP 21 by
imposing acreage and linear foot limits, as well as prohibiting its use
to authorize discharges of dredged or fill material into waters of the
United States to construct valley fills associated with surface coal
mining activities, to ensure that the NWP authorizes only those
activities that result in minimal individual and cumulative adverse
effects on the aquatic environment. The \1/2\-acre and 300 linear foot
limits will substantially reduce the amount of stream bed and other
waters lost as a result of activities authorized by this NWP, and limit
this NWP to minor fills associated with surface coal mining activities,
such as the construction of sediment ponds. Issues relating to the use
of individual permits to authorize discharges of dredged or fill
material into waters of the United States associated with surface coal
mining activities are outside the scope of the NWP reissuance process
and are not addressed in this rule.
The proposed reissuance of NWP 21, as well as the selection of
Option 2 to reissue the NWP with \1/2\-acre and 300 linear foot limits
and a prohibition against authorizing discharges of dredged or fill
material into waters of the United States to construct valley fills, is
not contrary to the suspension of NWP 21 in the Appalachian region of
these six states. The NWP reissued today has been substantially
modified from the 2007 version of NWP 21, with paragraph (a)
authorizing Corps district engineers to re-authorize activities that
were previously verified under the 2007 NWP 21 authorization where that
would be appropriate, and paragraph (b) imposing the acreage and linear
foot limits stated above, as well as the condition prohibiting its use
for the construction of valley fills in waters of the United States, on
new NWP 21 activities. The substantial changes in the terms and
conditions of the reissued NWP 21 will ensure that the activities
authorized by this NWP result in minimal individual and cumulative
adverse effects on the aquatic environment. District engineers will
review pre-construction notifications for activities authorized under
paragraph (b) of this NWP and may require compensatory mitigation to
offset losses of waters of the United States and ensure the adverse
effects on the aquatic environment are minimal, individually and
cumulatively. Compensatory mitigation required for activities verified
under the 2007 NWP 21 will continue to be required, and may be
augmented if the district engineer determines that they do not
adequately compensate for losses of aquatic resource function and
ensure minimal individual and cumulative adverse effects. Suspension of
an NWP is an interim measure to be taken if there are substantive
concerns that an NWP activity is potentially causing more than minimal
adverse environmental effects, while the Corps collects additional
information and considers modifications to that NWP to satisfy
statutory or regulatory requirements for general permits, such as
compliance with Section 404(e) of the Clean Water Act. We fully
considered the comments received in response to the July 15, 2009,
proposal to suspend NWP 21 and used those comments to develop the three
options presented in the February 16, 2011, proposal to reissue NWP 21.
We have now determined that adopting Option 2 addresses the concern
that led to our previous suspension of NWP 21 in the six Appalachian
states, but in a more effective and equitable way. It is not the
geographic location of activities, but rather the nature of these
activities and their associated discharges that may lead to more than
minimal adverse effects. By prohibiting the use of NWP 21 for
discharges associated with valley fills and activities exceeding
appropriate thresholds, which are consistent with the thresholds used
for many other NWPs, we can ensure that activities that may result in
more than minimal individual and cumulative adverse effects obtain
individual permits, and those activities that will not result in more
than minimal adverse effects can be authorized by an NWP, regardless of
the region of the country in which they occur.
Only those surface coal mining activities involving discharges into
waters of the United States that received written authorization under
the 2007 NWP 21 may be eligible for authorization under paragraph (a)
of this NWP. Activities that were subject to the June 18, 2010,
suspension of NWP 21 in the Appalachian region of the six states may be
eligible for NWP 21 authorization under paragraph (b) if they do not
result in the loss of greater than \1/2\-acre of waters of the United
States, do not result in the loss of greater than 300 linear feet of
stream bed (unless that 300 linear foot limit for intermittent and
ephemeral streams is waived by the district engineer after agency
coordination and making a written determination that the activity will
result in minimal individual and cumulative adverse effects on the
aquatic environment), and do not involve discharges of dredged or fill
material into waters of the United States to construct valley fills.
One commenter objected to the proposed reissuance of NWP 21,
stating that it authorizes impacts for activities that are not similar
in nature, such as mining operations, impoundments, processing plants,
and road crossings. The commenter said that the Corps decision
documents do not recognize that impoundments can cause massive spills
or contaminate well water.
We do not agree that this NWP authorizes activities that are not
similar in nature. This NWP authorizes surface coal mining activities,
a broad category that includes a variety of features that may be
constructed by discharging dredged or fill material into waters of the
United States, the activities regulated by the Corps under Section 404
of the Clean Water Act. Discharges of dredged or fill material into
waters of the United States may be used to construct sediment ponds,
road crossings, etc. that are necessary to conduct surface coal mining
activities, or they may occur while coal is being mined (e.g., mine-
throughs). Impoundments constructed in waters of the United States
should be properly maintained (see general condition 14, proper
maintenance). District engineers may also require non-Federal
permittees to demonstrate that those impoundment structures comply with
applicable dam safety criteria (see general condition 24, safety of
impoundment structures).
One commenter said that if NWP 21 was reissued and could be used to
authorize valley fills, the Corps would violate the requirement in the
404(b)(1) Guidelines that no discharge of dredged or fill material
shall be permitted which will cause or contribute to significant
degradation of waters of the United States. This commenter also stated
that the proposed 300 linear foot limit for the loss of stream bed
would not prevent significant degradation of streams, and objected to
the proposed waiver of that limit for intermittent and ephemeral
streams, if the district engineer determined that such a loss would
result in minimal adverse effects on the aquatic environment.
[[Page 10206]]
The NWP 21 reissued today does not authorize discharges of dredged
or fill material into waters of the United States to construct valley
fills, unless under paragraph (a) the activity was previously verified
under the 2007 NWP 21 and the district engineer has determined that
those activities still qualify for NWP 21 authorization under the 2012
NWP general conditions, applicable regional conditions, and any
activity-specific conditions such as compensatory mitigation
requirements. For those previously authorized surface coal mining
activities, the district engineer determined that the adverse effects
on the aquatic environment are minimal, individually and cumulatively.
To re-verify the NWP authorization under the 2012 NWP 21, the district
engineer must determine that the activity continues to result in
minimal individual and cumulative adverse effects on the aquatic
environment. Surface coal mining activities that involve discharges of
dredged or fill material into waters of the United States for the
construction of valley fills that were not previously verified under
the 2007 NWP 21 are subject to paragraph (b) of the 2012 NWP 21 and
cannot be authorized by NWP 21. Discharges of dredged or fill material
into waters of the United States authorized by NWP 21 require water
quality certification. If water quality certification is not obtained
or waived, that activity is not authorized by NWP 21. The water quality
certifications issued by states are to be considered by district
engineers to be conclusive regarding water quality issues, unless the
Regional Administrator of the U.S. Environmental Protection Agency
advises the district engineer of other water quality concerns that need
to be taken into consideration. The construction of impoundments
authorized by NWP 21 is generally a minor cause of changes to water
quality. Most of the changes to water quality are due to the overall
surface coal mining activity and the change in land use (including
uplands) that occurs as a result of those mining activities. The
discharges of dredged or fill material into waters of the United States
authorized by NWP 21 constitute a small proportion of the overall fill
placed in a watershed to dispose of the rock, soil, and other materials
that are produced by the surface coal mining activity. As water
percolates through the larger overall fill that has been placed in
uplands and streams, the water chemistry changes. The effluent
discharged from impoundments constructed to trap sediments and other
materials to reduce their transport to downstream waters is regulated
under Section 402 of the Clean Water Act, and requires a National
Pollutant Discharge Elimination System (NPDES) permit. The NPDES permit
is issued by states that have approved programs or the U.S. EPA.
One commenter said the Corps has ignored cumulative impacts from
discharges of dredged or fill material previously authorized by NWP 21
in proposing Option 2 as a preferred alternative. The commenter also
stated that the draft decision documents fail to provide any evidence
that would support a minimal effects determination and that the Corps
only considers cumulative effects during the five year period the NWP
is in effect and this ignores the fact that valley fills bury streams
permanently, whether authorized by past nationwide or individual
permits, or in the future. The commenter also said that Option 2
ignores the cumulative amount of stream loss or acreage in a watershed
from multiple permits.
We have taken into account cumulative impacts from discharges of
dredged or fill material previously authorized by NWP 21, and
cumulative effects of discharges of dredged or fill material previously
authorized by individual permits, when developing the proposal to
reissue NWP 21, including Option 2. For NWP 21 activities that were not
previously authorized by the 2007 NWP 21, paragraph (b) of NWP 21
imposes a \1/2\-acre limit on NWP 21, as well as a 300 linear foot
limit for losses of stream bed, and does not authorize discharges of
dredged or fill material into waters of the United States to construct
valley fills. These changes will reduce the number of surface coal
mining activities authorized by NWP 21, when compared to previous
versions of NWP 21, which had no acreage or linear foot limits, and
could be used to authorize discharges of dredged or fill material into
waters of the United States to construct valley fills. We determined
that these limits will ensure that the adverse effects of discharges
authorized by NWP 21 are minimal, both individually and cumulatively.
Under the National Environmental Policy Act, an assessment of
cumulative effects has to consider the past, present, and reasonably
foreseeable future actions regardless of what agency (Federal or non-
federal) or person undertakes such actions (see 40 CFR 1508.7). In
addition, the 404(b)(1) Guidelines require a different approach to
cumulative effects analysis for the issuance of a general permit, such
as NWP 21. The 404(b)(1) Guidelines require the Corps or other
permitting authority to predict cumulative effects by evaluating the
number of individual discharges of dredged or fill material into waters
of the United States expected to be authorized by that general permit
until it expires (see 40 CFR 230.7(b)(3)).
The decision document for this NWP includes evaluations of
cumulative effects under both approaches, and concludes that the
reissuance of this NWP, including the imposition of the \1/2\-acre
limit, 300 linear foot limit, and prohibition against authorizing
valley fills on activities that were not previously authorized under
the 2007 NWP 21, as well as the pre-construction notification
requirements and other procedural safeguards, will authorize only those
activities with minimal individual and cumulative adverse effects on
the aquatic environment. Activities authorized under the 2007 NWP 21
were already determined by district engineers to result in minimal
individual and cumulative adverse effects on the aquatic environment.
The other procedural safeguards include the authority for division
engineers to modify, suspend, or revoke NWP 21 authorizations on a
regional basis, and the authority for district engineers to modify NWP
21 authorizations by adding conditions, such as compensatory mitigation
requirements, to ensure minimal individual and cumulative adverse
effects on the aquatic environment. District engineers may also assert
discretionary authority to require individual permits in cases where
the adverse effects will be more than minimal.
Under the National Environmental Policy Act approach to assessing
cumulative effects, the decision document discusses, in general terms,
the various activities (Federal, non-Federal, and private actions) that
may adversely affect the quantity and quality of aquatic resources in a
watershed or other geographic region used for cumulative effects
analysis, regardless of whether those activities occurred in the past
or are expected to occur in the present or reasonably foreseeable
future. Under the 404(b)(1) Guidelines approach for assessing
cumulative effects of the issuance of a general permit such as NWP 21,
the decision document evaluates the number of discharges of dredged or
fill material into waters of the United States expected to occur during
the five-year period the NWP would be in effect, as well as the
estimated loss of waters of the United States and compensatory
mitigation. District and division engineers are to supplement these
[[Page 10207]]
analyses when they prepare supplemental decision documents for this
NWP, and these supplemental decision documents are to include
cumulative effects analyses at a regional level. which can be highly
informative regarding impacts at a local watershed level. The
appropriate geographic scope of those cumulative effects analyses are
at the discretion of the division or district engineers.
The Corps considers and addresses cumulative environmental effects
of NWP 21 (and other NWPs) in two distinct ways. First, when Corps
Headquarters evaluates and proposes to issue or re-issue a NWP (such as
NWP 21), we evaluate cumulative effects at the national level, using
available national information on aquatic resource status and trends
and the general effects human activities have on aquatic resources. The
cumulative effects analyses presented in the Headquarters decision
documents reflect these national-scale evaluations and conclusions
supporting the promulgation of the NWP from Corps Headquarters.
Second, division and district engineers monitor the use of the NWPs
on a regional level, and will modify, suspend, or revoke applicable
NWPs when necessary if the use of those NWPs is likely to result in
more than minimal individual and cumulative adverse effects on the
aquatic environment within a particular watershed, ecoregion, state,
county, or other appropriate geographic area. To address regional and
site-specific environmental considerations, we rely on the Corps
district offices that receive pre-construction notifications required
by the terms and conditions of the NWP to evaluate the relevant
regional and site-specific environmental considerations. The Corps
district may add conditions to the NWP authorization, including
compensatory mitigation requirements, to ensure that the individual and
cumulative adverse effects on the aquatic environment caused by the NWP
activity are minimal, and therefore qualify for NWP authorization. If
conditions cannot be added to the NWP authorization to ensure that
minimal individual and cumulative adverse effects on the aquatic
environment occur, the district engineer will exercise discretionary
authority and notify the applicant that an individual permit is
required.
One commenter said there is insufficient support for the Corps
position that the required compensatory mitigation will attenuate
cumulative impacts on the Nation's aquatic resources by providing
aquatic resource functions and services, so the net effects will be
minimal. Another commenter stated that the Corps relies heavily on
mitigation, such as stream creation, restoration, and enhancement, but
there is no evidence that stream creation works. The commenter also
indicated that the 404(b)(1) Guidelines provide that no permit may rely
on mitigation techniques unless they have been demonstrated to be
effective in circumstances similar to those under consideration, and
that the 2008 compensatory mitigation rule requires that the district
engineer assess the likelihood for ecological success. The commenter
said the Corps cannot issue an NWP without assessing mitigation
effectiveness and success in the specific context in which the
mitigation technique would be used. The commenter concluded that the
Corps mitigation analysis fails to contain any discussion of stream
functions that would be lost from potential NWP activities and whether
compensatory mitigation can replace those functions.
Compensatory mitigation can be an effective means of offsetting
losses of aquatic resource functions caused by activities authorized by
Department of the Army permits, including NWP 21 activities, if it is
thoughtfully planned, implemented, and monitored. Compensatory
mitigation projects must be carefully sited, planned, and designed to
be ecologically successful in providing stream or wetland functions.
Site selection is a critical step in developing and implementing an
ecologically successful compensatory mitigation project. With the
promulgation of 33 CFR part 332 on April 10, 2008 (73 FR 19594), the
Corps Regulatory Program adopted requirements and standards to improve
compensatory mitigation practices for offsetting losses of aquatic
resource functions. Under the 2008 rule, a watershed approach should be
used for establishing compensatory mitigation requirements that will
successfully provide aquatic resource functions to offset losses of
those functions caused by permitted activities.
The 2008 rule identifies streams as ``difficult-to-replace''
resources and states that if further avoidance and minimization of
stream impacts is not practicable, the required compensatory mitigation
should be provided through stream rehabilitation, enhancement, or
preservation since those techniques have a greater certainty of success
(see 33 CFR 332.3(e)(3)). The preamble to the 2008 rule includes a
detailed discussion of the scientific status of stream restoration and
concludes that there has been success with stream rehabilitation,
enhancement, and preservation activities (see 73 FR 19596-19598). In
accordance with the 2008 rule, the Corps is not relying on stream
creation as a mechanism to provide compensatory mitigation for NWP 21
activities. In cases where compensatory mitigation is required for NWP
21 activities, those compensatory mitigation requirements will be
specified as activity-specific conditions of NWP 21 authorizations. The
required components of a compensatory mitigation plan are specified at
33 CFR 332.4(c)(2)-(14), and the district engineer will evaluate each
compensatory mitigation proposal to assess its potential for ecological
success, and consider the relevant factors provided in 33 CFR 332.3.
The compensatory mitigation plan must be approved by the district
engineer and monitoring will be required to assess whether the
compensatory mitigation project is meeting its objectives and is
successfully meeting its ecological performance standards. The district
engineer will review monitoring reports, and if the compensatory
mitigation project is not meeting its ecological performance standards,
he or she will require the responsible party to identify and implement
adaptive management measures to make changes to provide a successful
mitigation project. If adaptive management is not likely to result in
an ecologically successful compensatory mitigation project that will be
sufficient for offsetting lost aquatic resource functions that result
from the permitted activity, alternative compensatory mitigation may be
required. Financial assurances may also be required to help ensure the
success of the required compensatory mitigation.
The 404(b)(1) Guidelines, which address habitat development and
restoration as a means of minimizing adverse effects to plant and
animal populations (40 CFR 230.75(d)), recommend the use of techniques
that have been demonstrated to be effective. That provision is
consistent with the section on difficult-to-replace resources (33 CFR
332.3(e)(3)/40 CFR 230.93(e)(3)), which states that rehabilitation,
enhancement, and preservation should be used to provide the required
compensatory mitigation to offset permitted impacts to such resources
because there is greater certainty that such stream rehabilitation,
enhancement, and preservation will be ecologically successful and
offset those permitted impacts. The decision document for this NWP
contains a general discussion of the functions provided by streams, as
well as general
[[Page 10208]]
citations supporting our position that stream rehabilitation and
enhancement can provide stream functions to offset functions lost as a
result of permitted activities. It is not necessary for the decision
document to provide a comprehensive analysis of the state of stream
restoration success. The approach discussed above, and in 33 CFR part
332, is consistent with the Council on Environmental Quality's January
14, 2011, guidance on the ``Appropriate Use of Mitigation and
Monitoring and Clarifying the Appropriate Use of Mitigated Findings of
No Significant Impact.'' That guidance advocates the use of adaptive
management to take corrective actions if the required mitigation fails
to achieve projected environmental outcomes, which is also required by
the Corps compensatory mitigation regulations in 33 CFR part 332.
One commenter said that the Corps has failed to analyze whether
surface coal mining activities authorized by NWP 21 will cause
significant degradation to ``special aquatic sites,'' such as riffle
and pool complexes. This commenter asserted that valley fills and
mining through streams frequently buries riffle and pool complexes, and
these special aquatic sites are protected by stringent restrictions on
discharges of fill material into such sites. The commenter also stated
that practicable alternatives that do not involve burying riffles and
pools are presumed to be available unless clearly demonstrated
otherwise and such alternatives are presumed to have less adverse
impacts on the aquatic ecosystem. This commenter said the Corps should
deny a permit if it lacks sufficient information to determine whether
the proposed discharge complies with the Guidelines.
The activities authorized by this NWP comply with the 404(b)(1)
Guidelines, even though it authorizes discharges of dredged or fill
material into waters of the United States that may be classified as
special aquatic sites such as riffle and pool complexes. Each activity
authorized by an NWP does not require a project-specific 404(b)(1)
Guidelines analysis--that analysis is done before the NWP or any other
type of general permit is issued (see 40 CFR 230.7). The 404(b)(1)
Guidelines do not prohibit the use of general permits to authorize
discharges of dredged or fill material into special aquatic sites. A
determination of significant degradation does not focus simply on the
loss of a special aquatic site caused by the discharge of dredged or
fill material. It requires a broader analysis. The process for
determining whether significant degradation occurs consists of applying
the provisions of the 404(b)(1) Guidelines holistically, and assessing
the effects of the proposed discharge of pollutants on human health and
welfare; aquatic life and wildlife; aquatic ecosystem diversity,
productivity, and stability; and recreational, aesthetic, and economic
values. For activities authorized by general permits, the evaluation of
alternatives in accordance with 40 CFR 230.10(a) does not directly
apply (see 40 CFR 230.7(b)(1)). Paragraph (a) of general condition 23,
mitigation, requires project proponents to design and construct NWP
activities to avoid and minimize adverse effects to the aquatic
environment to the maximum extent practicable on the project site.
Several commenters stated that surface coal mines are already
heavily regulated under SMCRA, which includes a variety of requirements
to protect waters of the United States, so additional requirements are
not needed to ensure that adverse effects to the aquatic environment
are minimal. Two of these commenters stated NWP 21 should be reissued
without change because of SMCRA requirements. One commenter said the
authority to authorize stream and wetland impacts caused by mining
activities should rest solely with the SMCRA regulatory authority.
There is often more than one Federal law that regulates surface
coal mining activities, especially in cases where those activities
involve discharges of dredged or fill material into waters of the
United States. While most aspects of surface coal mining are regulated
under SMCRA, surface coal mining and reclamation activities involving
discharges of dredged or fill material into waters of the United States
also require permits issued under Section 404 of the Clean Water Act.
The statutory and regulatory standards established under SMCRA are
different than those established under Section 404 of the Clean Water
Act, including section 404(e) which authorizes the Corps to issue
general permits. One of the objectives of SMCRA is to ensure that
surface coal mining activities are conducted in an environmentally
responsible manner and that the land disturbed by mining is adequately
reclaimed. One of the objectives of the Clean Water Act is to ``restore
and maintain the physical, chemical, and biological integrity of the
Nation's waters.'' Under the regulations implementing SMCRA, surface
coal mining and reclamation activities must be conducted in a manner
that will ``minimize the disturbance of the hydrologic balance within
the permit and adjacent areas'' and that will ``prevent material damage
to the hydrologic balance outside the permit area.'' As part of the
SMCRA permitting process, potential changes to the quality and quantity
of surface and groundwater are evaluated to ensure that material damage
to the hydrologic balance outside the permit area will not occur. Other
factors considered under SMCRA include: pre- and post-mining land uses,
backfilling and grading activities, disposal of excess spoil, and the
protection or replacement of water supplies.
Under Section 404 of the Clean Water Act, the 404(b)(1) Guidelines
provide the substantive criteria for evaluating the environmental
effects of proposed discharges of dredged or fill material into waters
of the United States. The 404(b)(1) Guidelines are not focused on
considering effects to water quality and quantity. The 404(b)(1)
Guidelines also require examination of the effects that discharges of
dredged or fill material will have on physical, chemical, and
biological attributes of waters of the United States. The 404(b)(1)
Guidelines at 40 CFR part 230 require the Corps to evaluate the effects
of discharges of dredged or fill material, including general permits
that authorize such discharges, on the applicable criteria listed in
subparts C through F. Examples of criteria in those subparts are:
Substrate; suspended particulates/turbidity; water; current patterns
and water circulation; normal water fluctuations; threatened and
endangered species; fish, crustaceans, mollusks, and other aquatic
organisms in the food web; other wildlife; wetlands; riffle and pool
complexes; municipal and private water supplies; recreational and
commercial fisheries; water-related recreation; and aesthetics. The
threshold for issuance of general permits such as NWP 21 is a
determination that the authorized activities would result in no more
than minimal individual or cumulative adverse environmental effects.
There is no corresponding threshold under SMCRA and its
implementing regulations, which do not require that permit applications
be evaluated in terms of the 404(b)(1) Guidelines. Instead, section
507(b)(11) of SMCRA requires that the permit applicant prepare a
determination of the probable hydrologic consequences of the proposed
operation with respect to the hydrologic regime and the quantity and
quality of water in surface and ground water systems. Section 510(b)(3)
of SMCRA requires that the regulatory authority use this determination
and other available information to prepare an assessment of the
probable
[[Page 10209]]
cumulative impact of all anticipated mining in the area on the
hydrologic balance. The SMCRA regulatory authority may not issue a
permit unless it first finds that the operation has been designed to
prevent material damage to the hydrologic balance outside the permit
area. While there is some overlap, the thresholds for permit issuance
under SMCRA are not the same as the thresholds under Section 404 of the
Clean Water Act. Given the different permit issuance thresholds of
SMCRA and Section 404 of the Clean Water Act, NWP 21 authorizations
cannot only rely on the environmental reviews conducted under SMCRA to
satisfy the minimal effects requirement.
Section 404 of the Clean Water Act applies to all discharges of
dredged or fill material into waters of the United States, unless those
activities qualify for an exemption under Section 404(f) of the Clean
Water Act. Section 404(f) does not specifically exempt surface coal
mining activities. For those activities that do not qualify for an
exemption from the permit requirements of the CWA, the Corps must
evaluate applications for Department of the Army permits, including
general permits, and either apply the 404(b)(1) Guidelines (if an
individual permit is required) or determine whether the proposed
activity qualifies for NWP authorization. This NWP provides an
efficient means of authorizing discharges of dredged or fill material
into waters of the United States that result in minimal individual and
cumulative adverse effects on the aquatic environment. Corps districts
work with SMCRA regulatory authorities to reduce duplication, but each
agency must still ensure that proposed activities comply with their
respective statutes and implementing regulations.
Two commenters stated the primary effect of adopting any of the
three options proposed for NWP 21 in the February 16, 2011, Federal
Register notice would be to require proposed surface coal mining
activities involving discharges of dredged or fill material into waters
of the United States to be evaluated under the individual permit
process. This would cause an unnecessary additional delay and expense
to mine operators and require the Corps to get additional personnel and
funding to process additional individual permit applications in a
timely manner. One commenter suggested that NWP 21 should be reissued
as it was in 2007, and that regional conditions should be used in
Appalachia to ensure those activities result in minimal adverse effects
on the aquatic environment. This commenter said this approach would
allow western coal producers to continue their operations without
negative consequences.
We acknowledge that reissuing NWP 21 with a \1/2\-acre limit, a 300
linear foot limit for the loss of stream bed, and not authorizing
discharges of dredged or fill material into waters of the United States
to construct valley fills, will result in more surface coal mining
activities requiring Clean Water Act Section 404 individual permits. To
provide an equitable and less burdensome transition to the new limits
to NWP 21, under paragraph (a) NWP 21 continues to authorize surface
coal mining activities that were previously authorized under the 2007
NWP 21 without those new limits. Under paragraph (b), the \1/2\-acre
and 300 linear foot limits, as well as the prohibition against
authorizing discharges of dredged or fill material into waters of the
United States to construct valley fills, apply to surface coal mining
activities that were not authorized by the 2007 NWP 21. Expansions of
activities that were previously verified under the 2007 NWP 21 do not
qualify for paragraph (a) of NWP 21.
Continuing to authorize surface coal mining activities that were
verified under the 2007 NWP 21 will reduce burdens on the regulated
public while protecting the aquatic environment in accordance with the
requirements of Section 404(e) of the Clean Water Act. These project
proponents who received verifications under the 2007 NWP 21 expended
substantial resources to obtain their authorizations. If they cannot
comply with the new limits imposed on NWP 21 it would impose a
significant hardship to require those operators to cease surface coal
mining activities in waters of the United States while they apply for
individual permits and wait for a decision. We estimate that there are
approximately 70 surface coal mining activities across the country that
were authorized by the 2007 NWP 21 that may qualify for authorization
under paragraph (a) of NWP 21 when it goes into effect on March 19,
2012. To obtain authorization under paragraph (a) of the 2012 NWP 21,
these project proponents do not need to submit a pre-construction
notification since they already did so under the 2007 NWP 21 and that
notification will be on file at the district office. Instead, those
project proponents only need submit a letter to the district engineer
requesting verification under the 2012 NWP 21. That letter should be
sent to the district engineer by February 1, 2013, although that
deadline may be extended in writing by the district engineer. This date
allows the district engineer approximately 45 days for review of the
letter before the expiration of the one-year period that is allowed for
completion of activities authorized under the 2007 NWP 21. Any changes
to the previously authorized surface coal mining activity must also be
described in that letter, so that the district engineer can determine
whether the activity still results in minimal individual and cumulative
adverse effects on the aquatic environment and is eligible for
authorization under paragraph (a) of NWP 21. The district engineer will
review such requests and notify the permittee whether the activity is
authorized by the 2012 NWP 21. There will be no agency coordination of
these previously authorized NWP 21 activities. Any currently applicable
regional conditions and any activity-specific conditions, such as
compensatory mitigation requirements, would apply to the NWP
authorization. The district engineer may also revise such conditions
and requirements if the existing ones are determined not to be adequate
to ensure minimal adverse effects. If the permittee does not receive a
written verification from the district engineer prior to the expiration
of the one-year period provided in 33 CFR 330.6(b), the permittee must
cease all activities until such verification is received because that
one-year period cannot be extended. The surface coal mine activity must
be authorized under the 2012 NWP 21 or another form of Department of
the Army authorization to discharge dredged or fill material into
waters of the United States after the one-year period ends on March 18,
2013. The district engineer may also extend the February 1, 2013,
deadline by notifying the permittee in writing, if he or she needs less
than 45 days to make a decision on the 2012 NWP 21 authorization. The
Corps encourages operators who received a 2007 NWP 21 verification and
plan to operate past March 18, 2013, to submit their letter as soon as
possible to allow for uninterrupted NWP 21 permit coverage. Expansions
of previously verified NWP 21 activities that result in greater losses
of waters of the United States are not authorized under paragraph (a)
will require a different form of Department of the Army authorization
if they do not qualify for authorization under paragraph (b) of NWP 21.
If the surface coal mining activity involving discharges of dredged or
fill material into waters of the United States authorized under
paragraph (a) cannot be completed by the time the 2012 NWP 21 expires,
then the project proponent
[[Page 10210]]
will have to obtain an individual permit or regional general permit, if
the activity does not qualify for an applicable NWP issued in 2017. The
Corps recommends that any projects that will extend beyond March 18,
2017, that do not meet the new limits in NWP 21 apply for an individual
permit and allow sufficient time for the Corps to process their
application to allow uninterrupted coverage when the new NWP 21 expires
in 2017.
The limits added to paragraph (b) of NWP 21 will ensure that this
NWP authorizes only those activities that have minimal adverse effects
on the aquatic environment, individually and cumulatively. These limits
will also result in more new projects needing to obtain individual
permits. The Corps has the resources necessary to process those
individual permit applications in a timely manner. It is important for
coal mine operators to consider the advantages of obtaining individual
permits for surface coal mining activities. In accordance with Section
404(e) of the Clean Water Act, general permits, including NWPs, can be
issued for a period of no more than five years. Individual permits can
be issued for longer periods of time--the expiration date for an
individual permit is at the discretion of the district engineer, who
will take into account the characteristics of the proposed activity and
the amount of time expected to be needed to complete the regulated
activities. Therefore, it would often be advantageous for a surface
coal mine operator to obtain an individual permit that would authorize
discharges of dredged or fill material into waters of the United States
for the expected operational timeframe for that particular coal mine.
Under NWP 21, no authorization could be issued for a time period of
more than five years. If the NWP 21 activity is not completed by the
expiration date of the NWP authorization then the project proponent
would have to notify the district engineer and obtain another NWP
verification.
Nationwide permit NWP 21 pre-construction notifications require
substantial resources to evaluate proposed activities and determine
whether they result in minimal individual and cumulative adverse
effects on the aquatic environment, and whether compensatory mitigation
is needed to comply with the minimal adverse environmental effects
requirement for general permits. Under the 2007 NWP 21, the project
proponent could not proceed until he or she obtained an NWP 21
verification. The substantial amount of review required for both NWP 21
pre-construction notifications and individual permit applications both
involve considerable amounts of resources from the Corps, so we do not
expect a significant increase in workload or processing times to occur
through the implementation of Option 2 and the modifications we made to
that option for the final NWP.
In response to the NWP 21 proposal, one commenter said the Corps
was attempting to decide on behalf of the United States government how
much coal mining should take place, or what scale of mining operations
is appropriate. The commenter suggested that the Corps only concern
should be the scale of the regulated activity and not the scale of the
mining operation. The commenter stated that the Corps evaluation of
surface coal mining activities should be focused on impacts to aquatic
resources. One commenter said the proposed changes to NWP 21 would have
a significant effect on energy supply, since the ability to obtain
permits in a timely manner is essential to the production of coal,
which provides over 30 percent of America's electric power.
The three options provided in the February 16, 2011, Federal
Register notice were intended to solicit comment to assist the Corps in
identifying an option for the reissuance of NWP 21 that would comply
with the statutory and regulatory requirements for general permits.
Those options were developed to determine which terms and conditions
(if any) should be established to ensure that NWP 21 authorizes only
those activities that result in minimal adverse effects on the aquatic
environment. The proposal does not affect how much coal mining may take
place, nor does it have a significant effect on energy supply, because
those surface coal mining activities that do not qualify for NWP 21
authorization may be authorized by individual permits or general
permits, if such general permits are available. The Corps review is
focused on adverse effects to aquatic resources, as well as other
public interest review factors. The limits on the use of NWP 21 are
expressed in terms of impacts to the aquatic environment, not the scale
of the mining operation. Other aspects of surface coal mining
activities are regulated by OSMRE or delegated states under SMCRA.
One commenter said that NWP 21 should not apply to ephemeral waters
because they are not jurisdictional waters of the United States.
Several commenters stated that NWP 21 encourages operators to design
their projects within the scope of the NWP rather than seek an
individual permit, thereby reducing impacts. These commenters said that
there may be a net gain of wetland acreages because of reclamation
practices at surface coal mines.
Ephemeral streams are waters of the United States if they meet the
definition of ``waters of the United States'' at 33 CFR part 328 and
applicable guidance on Clean Water Act jurisdiction, such as the
guidance issued in 2008 entitled ``Clean Water Act Jurisdiction
Following the U.S. Supreme Court's Decision in Rapanos v. United States
and Carabell v. United States.'' The NWP 21 issued in 2007 did not have
any acreage or linear foot limits, which are the primary tools used to
encourage avoidance and minimization to qualify for NWP authorization.
Except for those previously verified 2007 NWP 21 activities authorized
under paragraph (a), the NWP 21 reissued today has a \1/2\-acre limit
and a 300-linear foot limit for losses of stream bed, which will be
more effective in encouraging project proponents to avoid and minimize
losses of waters of the United States to quality for NWP 21
authorization. We acknowledge that there may be net gains in wetland
acreage at some surface coal mining reclamation sites, but we have
imposed limits on NWP 21 because of concerns about losses of stream bed
and the potential for surface coal mining activities to have more than
minimal adverse effects on the aquatic environment, individually and
cumulatively.
One commenter disagreed with the Corps assertion that valley fills
substantially alter watersheds and result in adverse impacts on the
aquatic environment. This commenter also said that Options 2 and 3 do
not allow the Corps the flexibility to increase the amount of stream
bed loss above the 300 linear foot limit. The commenter also objected
to the proposed interagency coordination for activities resulting in a
loss of greater than 1,000 linear feet of intermittent and ephemeral
stream beds, and said the Corps has not suggested any reasons for this
restrictive provision.
Surface coal mining activities involving the construction of valley
fills result in substantial changes to the watersheds of the headwater
streams that are primarily impacted by these activities. Those
watersheds are changed by the large amounts of land clearing and
earthmoving that occur during the mining activity. The construction of
the valley fill itself causes changes to the geomorphology of the
watershed, which affects water quality and watershed hydrologic
[[Page 10211]]
functions, such as water collection, transport, and storage. It is well
documented in the scientific literature that changes in land use affect
the quantity and quality of streams, wetlands, and other aquatic
resources. Examples of such scientific studies are cited in the
decision document for this NWP. The 300 linear foot limit for losses of
stream bed is generally necessary to ensure that NWP 21 authorizes only
those activities that result in minimal adverse effects on the aquatic
environment. However, that 300 linear foot limit may be waived by the
district engineer if the proposed activity involves filling or
excavating intermittent or ephemeral stream beds and the district
engineer determines, in writing, that that activity will result in
minimal individual and cumulative adverse effects on the aquatic
environment. Agency coordination for proposed losses of greater than
300 linear feet of intermittent or ephemeral stream bed is intended to
provide information that will assist the district engineer in making
his or her minimal adverse effects determination.
One commenter said all Corps divisions and districts should add
regional modification alternatives to address differences in aquatic
resources functions. This commenter also stated that the proposal
provides that the cumulative impact analysis for an NWP 21 is not
limited to assessing impacts of the use of the NWP 21 on a national
basis and is not limited to activities authorized by NWPs or other
Department of Army permits. The commenter acknowledged that the Corps
considers activities not regulated by the Corps, including private
actions and those resulting in changes in the use of uplands next to or
near wetlands, streams, or other aquatic resources during the
cumulative effects analysis.
It is at the division engineer's discretion whether to add regional
conditions to an NWP to ensure that the NWP authorizes only those
activities that have minimal individual and cumulative adverse effects
on the aquatic environment. In addition, district engineers may modify
NWP authorizations by adding activity-specific conditions to minimize
adverse environmental effects. The decision documents comply with the
two relevant approaches for conducting cumulative effects analyses: (1)
The approach provided in the Council on Environmental Quality's
definition of ``cumulative impact'' provided in their National
Environmental Policy Act regulations at 40 CFR 1508.7, and (2) the
approach indicated in the 404(b)(1) Guidelines at 40 CFR 230.7(b).
One commenter said the proposed changes to NWP 21 will actually
increase impacts because mining operators will need to increase the
size of their mining sites to make the individual permit process cost
effective. The commenter said operators will no longer be able to
afford to mine the smaller reserve areas, so larger mine areas would
need to be permitted.
The changes to NWP 21 are appropriate to help ensure that this NWP
complies with the statutory requirements for general permits, in that
it may only authorize activities that have minimal individual and
cumulative adverse environmental effects. Surface coal mining
activities involving discharges of dredged or fill material into waters
of the United States that do not qualify for NWP authorization will be
evaluated as individual permits if applicable regional general permits
are not available. Activities authorized by individual permits must
comply with the 404(b)(1) Guidelines and undergo an alternatives
analysis. A public interest review will also be conducted during the
individual permit review process. Mining companies will have to make
their own decisions on whether it is economically viable to mine
smaller reserve areas, and apply for Department of the Army
authorization if proposed activities involve discharges of dredged or
fill material into waters of the United States.
One commenter said that if Option 2 is adopted, it should include a
definition of valley fill. A commenter stated that the utility of NWP
21 would be substantially reduced because losses of waters of the
United States caused by the construction of attendant features such as
ponds and roads would be counted towards the \1/2\-acre and 300 linear
foot limits. Another commenter indicated that the \1/2\-acre limit
would only authorize small sediment ponds. This commenter stated that
small sediment ponds would not be able to effectively service a typical
mine site. One commenter requested clarification on whether the amount
of stream that is impounded for sediment ponds will be counted as a
loss of waters of the United States and whether these ponds will have
to be removed upon completion of the mining.
We have added a definition of the term ``valley fill'' to the text
of this NWP. While fewer surface coal mining activities involving
discharges of dredged or fill material into waters of the United States
would be authorized by NWP 21 when compared to previous issued versions
of this NWP, the new terms and conditions of this NWP, including the
\1/2\-acre and 300 linear foot limits, are necessary to ensure that
this NWP authorizes only those activities that have minimal individual
and cumulative adverse effects on the aquatic environment. If the
construction of larger sediment ponds does not qualify for NWP 21
authorization, activities may be authorized by individual permits or
applicable regional general permits. In the definition of ``loss of
waters of the United States'' the loss of stream bed is determined by
the amount of linear feet of stream bed that is filled or excavated. As
to whether sediment ponds would have to be removed upon completion of
the mining operation, that would be a case-specific determination made
by the district engineer after taking into account requirements of the
SMCRA authority.
One commenter asked how many surface coal mining activities may be
authorized each year with NWP 21 if Option 2 is selected. One commenter
said the proposed changes to NWP 21 would be costly to small businesses
and disagreed with the Corps statement that the revised NWPs will not
impose substantially higher costs on small entities than those of
existing permits. Another commenter indicated that the proposed changes
to NWP 21 would result in more environmental impact statements being
required because of the amount of wetlands in their area.
In section 6.2.2 of the decision document for this NWP, we provide
estimates of the number of times we predict NWP 21 will be used each
year. Under paragraph (b), we estimate that NWP 21 will be used
approximately 11 times per year, although more activities may qualify
for NWP 21 authorization if project proponents do additional avoidance
and minimization to reduce losses of waters of the United States to
satisfy the acreage and linear foot limits. As discussed above, we
estimate that, across the country, approximately 70 NWP 21 activities
verified under the 2007 NWP 21 might be re-verified under paragraph (a)
of the 2012 NWP 21. The estimate provided in the decision document was
based on an analysis of past use of NWP 21, and it is a rough estimate
because NWP 21 did not have an acreage or linear foot limit and we
cannot predict how many activities can be modified to comply with the
new limits. Therefore, it is difficult to accurately predict how often
project proponents will qualify for authorization under the NWP 21
issued today. Since fewer surface coal mining activities are likely to
qualify for NWP 21 authorization, and more will require individual
permits, we acknowledge
[[Page 10212]]
that there will be greater compliance costs for small businesses. In
the preamble to the proposal, where we discuss compliance with the
Regulatory Flexibility Act, we state that the proposed NWPs would not
result in a significant impact on a substantial number of small
entities. That statement was made in the context of considering all of
the 48 NWPs proposed to be reissued and the two proposed new NWPs. Some
NWPs, such as NWP 48, will require fewer pre-construction notifications
and other requirements on small entities while other NWPs, such as NWP
21, will have more stringent requirements to satisfy the minimal
adverse environmental effects standard and will authorize fewer
activities. We do not agree that these changes to NWP 21 will result in
significantly more environmental impact statements. The threshold for
NWP authorization, as well as for other general permits, is minimal
adverse environmental effects. The threshold for preparing an
environmental impact statement is that the activity constitutes a major
Federal action significantly affecting the quality of the human
environment. Since the threshold that triggers the requirement to
prepare an environmental impact statement is greater than the minimal
adverse environmental effects threshold for NWP activities, activities
that were previously authorized by NWP should generally not require an
environmental impact statement if they are instead evaluated through
the individual permit process. Environmental assessments should suffice
to provide National Environmental Policy Act compliance for most, if
not all, of those activities. If the adverse effects on the aquatic
environment for a proposed NWP activity are determined by the district
engineer to be more than minimal individually and cumulatively, then
discretionary authority should be exercised and the proposed activity
evaluated through the individual permit process.
Many commenters said that that it would be more appropriate to
establish different NWP terms and conditions for different areas of the
United States, because of vast differences in geological,
topographical, climatologically and ecological regimes in areas where
coal resources are located across the country. One of these commenters
recommended focusing on the use of regional conditions to address
regional differences in coal mining techniques and issues, instead of
modifying NWP 21.
An NWP is developed to authorize specific categories of activities
across the country that have minimal individual and cumulative adverse
effects on the aquatic environment and is issued by Corps Headquarters.
There must be a national decision document for each NWP, and to issue
that NWP, there must be a finding that the NWP will authorize only
those activities that have minimal individual and cumulative adverse
effects on the aquatic environment. Division and districts prepare
supplemental decision documents to explain whether regional conditions
are needed to satisfy the minimal adverse effects requirement. Regional
conditions are added to an NWP at a division engineer's discretion and
Corps Headquarters cannot mandate the adoption of regional conditions.
The national decision documents acknowledge that regional
conditions approved by division engineers and activity-specific
conditions added to NWP authorizations are procedures to be relied upon
to satisfy the minimal adverse environmental effects requirement. In
those areas of the country where surface coal mining activities result
in minimal individual and cumulative adverse effects on the aquatic
environment but exceed the limits of NWP 21, division and district
engineers may issue regional general permits that have different terms
and conditions than NWP 21, including larger acreage or linear foot
limits. Those regional general permits are a more appropriate mechanism
for considering local geologic, topographic, climatologic, and
ecological characteristics.
Some commenters stated that Executive Order 13563, ``Improving
Regulation and Regulatory Review'' asks federal agencies to tailor
regulations to impose the least burden on society, including
individuals, businesses of differing sizes, and other entities. These
commenters said that adding additional redundant review by Federal
agencies violates this Executive Order and threatens energy supplies.
One of these commenters said the proposal to reissue NWP 21 with
modifications is contrary to the objectives of Executive Order 13563
because it fails to use the best, most innovative and least burdensome
tools for achieving regulatory ends and that the proposed limits in NWP
21 are redundant, inconsistent, or overlapping with other regulations.
As explicitly recognized in Executive Order 13563 itself, an
Executive Order does not supersede Federal laws, such as the
requirements in the Clean Water Act, the Rivers and Harbors Act of
1899, the Endangered Species Act, and the National Historic
Preservation Act. Section 404(e) of the Clean Water Act states that
general permits (including NWPs) authorize categories of activities
that are similar in nature and result only in minimal individual and
cumulative adverse environmental effects. The Corps complied with
Section 2 of Executive Order 13563 by seeking public comment on the
proposal to reissue NWP 21 with modifications, for a 60-day comment
period. The Corps has determined that the changes to NWP 21 are
necessary to comply with the requirements of Section 404(e) of the
Clean Water Act. We have modified Option 2 by authorizing activities
verified under the 2007 NWP 21 (see paragraph (a) of NWP 21), to
provide an equitable transition to the new limits in NWP 21 and reduce
burdens on the regulated public. The authority for the district
engineer to waive the linear foot limit for losses of intermittent and
ephemeral streams if the impacts are not more than minimal is also
intended to minimize regulatory burden. As discussed earlier in this
section, the terms and conditions of NWP 21 are not duplicative with
the requirements of other Federal agencies. While surface coal mining
activities are more broadly regulated under the Surface Mining Control
and Reclamation Act by the Office of Surface Mining Reclamation and
Enforcement or approved states, the Corps regulates discharges of
dredged or fill material into waters of the United States, and focuses
its evaluation on the effects those discharges have on the aquatic
environment or its other public interest review factors (see 33 CFR
330.1(d) and (e)(2)). Those activities that do not qualify for NWP
authorization may be authorized by other forms of Department of the
Army authorization, such as individual permits or regional general
permits. The standards the Corps uses to ensure compliance with the
Clean Water Act differ from the standards used by the Office of Surface
Mining Reclamation and Enforcement or approved states to ensure
compliance with the Surface Mining Control and Reclamation Act, and
those standards are not redundant.
A commenter disagreed with the Corps statement that the proposed
NWPs are not a significant energy action as defined by Executive Order
13211 because of the proposed changes to NWP 21. The commenter said the
Corps must prepare a Statement of Energy Effects as required by the
Executive Order, including a description of the adverse impacts
expected to the production of coal, the nation's primary electrical
generation fuel supply. One commenter said that the time frames for
evaluating NWP 21 pre-construction notifications should be similar to
those
[[Page 10213]]
of other NWPS, and NWP 21 should not require the project proponent to
wait until he or she receives a written NWP verification even if the
45-day review period has passed.
The changes to NWP 21 are appropriate and help to ensure that the
NWP authorizes only those discharges of dredged or fill materials into
waters of the United States that have minimal adverse effects on the
aquatic environment, individually and cumulatively. Surface coal mining
activities that involve discharges of dredged or fill material into
waters of the United States that do not qualify for NWP authorization
may be authorized by individual permits or, if available, applicable
regional general permits, which would still support the production of
coal to supply the nation's energy needs. Given the adverse
environmental effects associated with surface coal mining activities
involving discharges of dredged or fill material into waters of the
United States, which are discussed in the decision document for this
NWP, we believe it is necessary to retain the existing requirement that
the project proponent may not proceed with the NWP 21 activity until
after he or she has obtained a written NWP 21 verification. Project
proponents are already accustomed to complying with this requirement
and plan accordingly.
One commenter suggested establishing a grandfathering period for
surface coal mining activities authorized by the NWP 21 issued in 2007,
to allow permittees to complete their currently approved mitigation
plans without an added burden of updating permits. Another commenter
asked how project proponents are expected to transition from the
current 2007 NWP 21 to one of the selected options for reissuing NWP
21, if NWP 21 is reissued under either Option 2 or 3.
As discussed above, we have revised NWP 21 to continue the NWP
authorization for surface coal mining activities that were verified
under the 2007 NWP 21, to provide project proponents until March 18,
2017, to complete those activities under NWP 21. The acreage limits,
linear foot limits, and prohibition against discharges of dredged or
fill material into waters of the United States to construct valley
fills apply to those surface coal mining activities that were not
previously authorized by the 2007 NWP 21. We believe this approach for
transitioning to the new NWP 21 limits provides both protection to the
aquatic environment and is equitable to those members of the regulated
public who made substantial investments in reliance on a previously
verified NWP 21 authorization.
One commenter said that a pre-construction notification should be
required for all NWP 21 activities, so plans and permit conditions
could be reviewed to ensure that contaminated water being generated
during these activities is not later reaching open water and impacting
state-owned lands. One commenter expressed concern that historic
resources impacts are not considered under SMCRA in cases where the
program has been delegated to states.
To be authorized by this NWP, the project proponent must submit a
pre-construction notification, so that the district engineer can
evaluate the proposed activity and ensure that it qualifies for NWP
authorization. Activities authorized by this NWP must comply with
general condition 20, historic properties. If the proposed activity has
the potential to cause effects to historic properties, consultation
under Section 106 of the National Historic Preservation Act will be
conducted before the district engineer determines whether the activity
is authorized by NWP.
This NWP is reissued with the modifications discussed above.
NWP 22. Removal of Vessels. There were no changes proposed for this
NWP, and no comments were received. This NWP is reissued without
change.
NWP 23. Approved Categorical Exclusions. There were no changes
proposed for this NWP. One commenter requested that this NWP be limited
to federal applicants only. One commenter requested that the NWP be
modified to allow any agency with categorical exclusions to use this
NWP, not just those that have been approved by the Office of the Chief
of Engineers. One commenter recommended adding references to
requirements to comply with other applicable federal laws, such as
Section 106 of the National Historic Preservation Act. One commenter
stated that this NWP does not take into consideration the actions that
may impact Tribal treaty cultural or natural resources and requested
that notification be provided to affected tribes regardless if
considered a categorical exclusion.
This NWP applies only to those activities ``undertaken, assisted,
authorized, regulated, funded or financed, in whole or in part, by
another Federal agency or department.'' In certain instances, another
agency, such as a state department of transportation, may legally
assume the responsibility for categorical exclusion determinations for
a Federal entity. To ensure compliance with the requirements for
general permits, it is necessary for the Office of the Chief of
Engineers to review and approve agency categorical exclusions for use
with this NWP. In cases where the Federal agency is responsible for
compliance with the National Historic Preservation Act, the Endangered
Species Act, or other Federal laws, the Corps can accept their
compliance, as long as it adequately covers the activity authorized by
the NWP. The same principle applies for Tribal treaty natural or
cultural resources: If the agency issuing the categorical exclusion
that qualifies for NWP 23 authorization has sufficiently addressed the
Tribal treaty resources, then the Corps district can accept that as a
basis for compliance with general condition 17, tribal rights.
One commenter stated that this NWP authorizes activities that are
not similar in nature, and its use does not result in minimal adverse
effects on the aquatic environment. One commenter said that the
approved categorical exclusions need to be reassessed to ensure that
they still meet the minimal adverse environmental effects requirement
for general permit activities. One commenter said that pre-construction
notification should be required for all NWP 23 activities to ensure
adequate interagency coordination. Another commenter said that
reporting to the Corps should be required for any activity that affects
wetlands, encroaches on a regulatory floodway, affects the water level
of a 100-year flood event, or affects waters designated as critical
resource waters.
This NWP, along with the Regulatory Guidance Letter listing the
approved categorical exclusions, authorizes activities that are similar
in nature. The Corps believes that their eligibility for NEPA
compliance using a categorical exclusion is an appropriate basis of
``similarity'' for their authorization under this NWP. Based on the
NEPA requirements for use of categorical exclusions, the Corps has
determined that these activities will result in minimal individual and
cumulative adverse effects on the aquatic environment, and division
engineers have the authority to regionally condition this NWP to
restrict or prohibit its use if they determine that these activities
are resulting in more than minimal adverse environmental effects. We do
not agree that the approved categorical exclusions need to be re-
evaluated because of the length of time that has passed since they were
originally approved. Agencies have an on-going responsibility to review
their categorical exclusions and ensure that
[[Page 10214]]
the activities they authorize still qualify for this type of NEPA
compliance. Division engineers may also regionally condition this NWP
to require agency coordination for specific categorical exclusions that
have been approved for use with this NWP. We do not agree that
reporting or pre-construction notification should be required for all
activities that may affect wetlands. Activities that encroach upon
regulatory floodways or affect 100-year flood elevations are more
appropriately addressed through applicable Federal Emergency Management
Agency-approved state or local floodplain management requirements (see
general condition 10). General condition 22, designated critical
resource waters, requires pre-construction notification for any NWP 23
activity that is proposed in designated critical resource waters and
wetlands adjacent to those waters.
The proposed NWP is reissued with no changes.
NWP 24. Indian Tribe or State Administered Section 404 Programs.
There were no changes proposed for this NWP, and no comments were
received. This NWP is reissued without change.
NWP 25. Structural Discharges. We did not propose any changes to
this NWP. One commenter stated that concrete should be cured for a full
seven days before coming in contact with water. One commenter stated
structures constructed by such discharges on state-owned lands may
require a ``use authorization'' from the state.
Specific requirements for the curing of concrete are more
appropriately addressed as regional conditions or activity-specific
conditions added to an NWP 25 authorization. Project proponents are
responsible for obtaining any other federal, state, or local permits
that may be required for a particular activity.
The NWP is reissued without change.
NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities. We proposed to modify this NWP by adding ``the removal of
small dams'' to the list of examples of activities authorized by this
NWP. We also proposed to remove the phrase ``that has not been
abandoned'' that modifies the term ``prior converted cropland.'' We
proposed to change ``Notification'' provisions (1) and (2) so that
certain stream restoration, rehabilitation, and enhancement activities
would be subject to the reporting provision instead of requiring pre-
construction notification. Lastly, we proposed to modify
``Notification'' provision (1) by adding the U.S. Forest Service to the
list of Federal agencies that can develop stream or wetland
enhancement, restoration, or establishment agreements.
Many commenters supported the addition of removal of small dams to
the list of examples of activities authorized by this NWP. One
commenter said that if this NWP is modified to authorize the removal of
small dams, the NWP should also authorize discharges of dredged or fill
material to re-establish appropriate stream channel configurations,
with a \1/2\-acre limit for the stream channel reconfiguration. Some of
these commenters requested clarification as to what constitutes a
``small dam.'' One commenter agreed with the addition of removing small
dams but expressed concern regarding potential impacts to water quality
when a small dam is removed. One commenter recommended requiring
sediment testing before authorizing the removal of small dams.
After further consideration, we have determined that since the NWP
27 issued in 2007 authorized the installation, removal, and maintenance
of small water control structures (which clearly includes small dams),
it is not necessary to modify this NWP by adding the removal of small
dams to the list of examples of activities authorized by NWP 27, so we
have not made this proposed change. We agree that the NWP should also
authorize the restoration of the stream channel that were affected by
the construction of a small water control structure, if that water
control structure is to be removed. We do not agree that such
activities should be limited to \1/2\-acre, since this NWP authorizes
only aquatic resource restoration, establishment, and enhancement
activities that result in net increases in aquatic resource functions
and services. Aquatic resource habitat restoration and enhancement
activities involving the removal of small water control structures
should be designed and implemented to prevent or minimize the movement
of pollutants, including chemical compounds adsorbed to sediments that
have accumulated in the impoundment, from the impounded area once the
small water control structure is removed. Sediment testing may be
required on a case-by-case basis if there are substantive concerns
about potential contaminants.
Several commenters suggested that NWP 27 activities be subject to
strict technical guidelines and enforceable success criteria
commensurate with the scope of the activity being undertaken. A number
of commenters expressed concern that some of the activities authorized
by NWP 27 may result in a loss of waters rather than a net gain. One
commenter said that aquatic resource restoration, establishment, and
enhancement activities should have management plans that include goals
and objectives, baseline conditions, effective monitoring requirements,
and adaptive management plans. This commenter stated that without this
level of documentation, the effectiveness of any restoration,
establishment, or enhancement activity cannot be effectively evaluated
for success. One commenter recommended adding a requirement for
performance bonds to ensure that these activities are monitored and are
achieving their goals and objectives.
For those NWP 27 activities that require pre-construction
notification, the prospective permittee is required to submit a
complete pre-construction notification, with the information listed in
paragraph (b) of general condition 31. Activities conducted in
accordance with agreements with other Federal or state agencies should
be adequately documented to determine whether there will be net
increases in aquatic resource functions and services. When Corps
districts review the reports required for activities conducted under
agency agreements, they will assess whether those activities will
satisfy the terms and conditions of this NWP. If a particular activity
does not, then the district will notify the project proponent within 30
days of when the report was submitted to the district engineer. This
NWP requires authorized activities to result in net increases in
aquatic resource functions and services, which will generally add
acreage to the nation's aquatic habitat base. Although there may be
some NWP 27 activities that result in a decrease in aquatic resource
area to increase the functional capacity of those aquatic habitats,
such changes are acceptable because it is the ecosystem functions, and
the benefits people derive from those functions, that are important to
society. To provide better information to assess whether there will be
a net increase in aquatic resource functions and services, we have
added a provision to the reporting requirement that requires the
prospective permittee to provide information on the baseline ecological
conditions at the project site, such as a delineation of wetlands,
streams, and/or other aquatic habitats. Unless the activities
authorized by this NWP are to be used as compensatory mitigation for
Department of the Army permits (e.g., mitigation banks or in-lieu fee
projects), the project proponent is not required to submit mitigation
plans that comply with 33 CFR 332.4. The aquatic resource
[[Page 10215]]
restoration, establishment, or enhancement activity should be
sufficiently documented to help district engineers decide whether the
terms and conditions of this NWP are satisfied. Performance bonds or
other types of financial assurances may be required on a case-by-case
basis, if such assurances are necessary to provide funding to be used
for remediation or adaptive management.
One commenter requested that this NWP authorize the rehabilitation
or enhancement of tidal streams, stating that such activities would
result in net increases in the functions and services provided by
existing tidal aquatic resources and would not be contrary to the
provision that prohibits the relocation of tidal waters or the
conversion of tidal waters to other aquatic uses. One commenter pointed
out that NWP 27 covers a wide range of habitat restoration and
enhancement activities and there should be greater flexibility to allow
resource managers to plan for sea level rise. This commenter
recommended adding the beneficial use of dredged material as a thin
layer application to provide sediment to sediment starved marshes,
which may provide substrate to maintain those marshes as local sea
levels rise. One commenter suggested modifying this NWP by clarifying
that it authorizes activities that involve removing or modifying
existing drainage ditches and structures, to establish or re-establish
wetland or stream hydrology. Another commenter suggested adding the re-
establishment of submerged aquatic vegetation or emergent tidal
wetlands in areas where those plant communities previously existed. One
commenter supported the inclusion of mechanized land clearing to remove
non-native invasive species in this NWP.
We agree that the rehabilitation or enhancement of tidal streams
should be authorized by this NWP and have modified the first paragraph
to include this category of activities. The enhancement of tidal
wetlands may be accomplished by minor additions of sediment to
facilitate changes in tidal marsh elevation that may successfully track
sea level rise. We agree with providing more clarity concerning the
types of ditch manipulations that can be used for restoring wetland
hydrology and have removed the phrase ``and drainage ditches'' after
``the backfilling of artificial channels'' and replaced it with ``such
as drainage tiles, and the filling, blocking, or reshaping of drainage
ditches to restore wetland hydrology'' after ``the removal of existing
drainage structures.'' We also agree that the re-establishment of
submerged aquatic vegetation or emergent tidal wetlands should be
authorized by this NWP, as long as those shallow water habitat and
wetland types previously existed in the project area. Such re-
establishment activities would not constitute a conversion of tidal
waters to other aquatic uses; instead it would be a form of
rehabilitation of those habitat types. We have retained the provision
authorizing mechanized land clearing to remove non-native, invasive
plant species.
One commenter requested that the terms ``type'' and ``natural
wetland'' be defined in the paragraph that describes the activities
that are not authorized by this NWP. Another commenter supported the
provision that prohibits the conversion of natural wetlands to another
aquatic use and recommended that this prohibition also be applied to
the conversion of one type of aquatic habitat to another. One commenter
said that the NWP should clearly state that wetlands with documented
hydrologic alterations are not ``natural'' wetlands and that hydrologic
restoration of these wetlands is not to be considered a conversion of a
natural wetland to another ``type'' but instead it should be considered
as wetland rehabilitation. One commenter stated that a provision should
be added to this NWP to clarify that compensatory mitigation is not
required for activities authorized by this NWP since they must result
in net increases in aquatic resource functions and services.
As indicated by the parenthetical in the first sentence of the
referenced paragraph, the term ``type'' as used for the purposes of
this NWP refers to the general category of aquatic resource, such as
wetland or stream. We do not believe it would be appropriate to define
the term ``natural wetland'' except to contrast it with constructed
wetlands, such as those that are often used to treat wastewater.
District engineer have the discretion to determine what constitutes a
``natural wetland'' for the purposes of this NWP. We have added a
sentence to this paragraph to clarify that changes in wetland plant
communities that are caused by restoring wetland hydrology are to be
considered wetland rehabilitation activities that are authorized by
this NWP. Such wetland rehabilitation activities are not to be
considered conversions to another aquatic habitat type. We concur that
compensatory mitigation should not be required for NWP 27 activities
and have added a sentence to the text of the NWP to clearly state this
stipulation.
One commenter said that the NWP should prohibit the relocation of
naturally occurring non-tidal aquatic resources. One commenter
suggested changing the conversion provision to state that no wetlands
may be converted to open water impoundments rather than limiting the
prohibition to tidal wetlands. Another commenter stated that while they
understand the need for language to clarify that conversion from
``streams to wetlands'' is not desirable, there are some areas that
have been drained or ditched to create water flow away from
agricultural land, where there was previously a wetland. This commenter
asked whether reestablishing wetlands on the site could be authorized
by this NWP. The commenter said that the NWP is too restrictive and has
the potential to prohibit activities that may result in aquatic
resources that are more appropriately integrated into the landscape.
The relocation of non-tidal waters and wetlands on a project site,
including relocation activities that convert open water impoundments to
non-tidal wetlands and vice versa, can result in net increases in
aquatic resource functions and services when viewed in a watershed
context. Therefore, we do not agree that it is appropriate to exclude
such activity from coverage under this NWP if it meets all other
conditions, including a net increase in resource functions and
services. Ditches that were constructed in wetlands to drain those
wetlands are not considered streams for the purposes of this provision
of the NWP. As discussed earlier, this NWP authorizes the filling,
blocking, or reshaping of drainage ditches to restore wetland
hydrology.
One commenter asked if the removal of bulkheads, derelict
structures, and pilings, can be authorized by this NWP while another
suggested that the NWP allow for the temporary use of spat (e.g.,
larval oysters) collecting devices for the purpose of shellfish
restoration.
The removal of structures in navigable waters of the United States
is authorized by this NWP if it is a part of an aquatic habitat
restoration or enhancement activity. The temporary use of spat devices
for oyster habitat restoration is more appropriately authorized by NWP
4.
One commenter said that the provisions concerning shellfish seeding
are not clear and asked if the intent of the NWP is to authorize
shellfish seeding activities to enhance threatened shellfish
populations. This commenter also said that shellfish enhancement
activities should be limited to native species. One commenter
recommended authorizing shellfish restoration activities without
requiring pre-
[[Page 10216]]
construction notification when such activities are conducted or
approved by a government agency with resource management oversight. One
commenter requested we not include shellfish restoration activities in
this NWP, because these activities alter existing substrate and benthic
habitat and should be reviewed under the individual permit evaluation
process. This commenter also recommended imposing a one-acre limit for
the placement of scattered shell.
This NWP authorizes shellfish seeding activities, which may help
increase shellfish populations in specific waters. Division engineers
may regionally condition this NWP to limit shellfish seeding activities
to native species. Further, in response to a pre-construction
notification or report, a district engineer may exercise discretionary
authority and condition a specific NWP authorization to limit it to the
seeding of native shellfish species. We do not agree that there should
be no pre-construction notification requirement if there is oversight
by another government entity with the responsibility for managing
shellfish resources. Since these activities occur in navigable waters,
the Corps needs to review them on a case-by-case basis to ensure that
they result in minimal individual and cumulative adverse effects on the
aquatic environment and navigation and provide net increases in aquatic
resource functions and services. Shellfish restoration activities
should be authorized by this NWP because shellfish provide important
ecosystem services in aquatic ecosystems, including the improvement of
water quality. In most cases, the changes to benthic habitat are minor
when compared to the ecosystem services provided by the shellfish. We
also do not agree that there should be a one-acre limit for the
placement of shell to construct oyster habitat because larger oyster
habitat construction activities can still result in a net increase in
aquatic resource functions and services.
One commenter said that stream restoration projects should be
limited to 500 linear feet. One commenter stated that the construction
of small nesting islands and the alteration of rare or imperiled
wetlands should be not be authorized by this NWP. This commenter also
suggested acreage limits for categories of activities authorized by
this NWP, such as limiting excavation of wetlands to provide shallow
water habitat for wildlife to \1/2\-acre in altered wetlands;
excavating no more than 1\1/2\-acre of wetlands that have been
regularly farmed within the past five years or wetlands documented to
be dominated by invasive species; a 3-acre limit for excavation
activities; and limiting the placement of fill for the construction of
dikes, berms, or water control structures to two acres. This commenter
also recommended limiting impoundments to a maximum height of six feet,
with a maximum impounded area of no more than five acres during a
design flood. This commenter also said that enhancement of hydrology
should not be authorized unless a state agency concurs that the wetland
has been farmed within the last five years or is dominated by invasive
species.
Since this NWP authorizes only those aquatic habitat restoration,
establishment, and enhancement activities that result in net increases
in aquatic resource functions and services, we do not agree that the
recommended limits should be added to this NWP. Division engineers can
regionally condition this NWP to restrict or prohibit its use over
specific geographic areas or categories of waters. In response to a
pre-construction notification, district engineers can add conditions to
the NWP authorization to ensure that the NWP authorizes only those
activities that result in minimal adverse effects on the aquatic
environment.
Two commenters supported the addition of the United States Forest
Service as a federal agency that can develop agreements for the
restoration, enhancement, or establishment of streams and wetlands. One
commenter recommended removing the reversion provision of NWP 27.
Another commenter said that the reversion provision should be
eliminated or significantly modified because it is inconsistent with
other NWPs. Two commenters stated that the reversion of wetlands should
not be authorized if the wetlands were being used for compensatory
mitigation. One commenter asked how many acres of wetlands could be
reverted under this NWP. One commenter asked whether a ``USDA Technical
Service Provider'' includes county soil and water conservation
districts.
The reversion provision is necessary for those aquatic resource
restoration, enhancement, or establishment activities that are done in
accordance with binding agreements, voluntary actions, or permits,
where those agreements, actions, or permits allow the project proponent
to revert the affected lands to its prior condition. If the reversion
provision is removed, it would create a disincentive to do certain
aquatic restoration, enhancement, or establishment activities that
could provide some aquatic resource functions and services for a
substantial period of time and benefit the watershed. Nationwide permit
27 differs from the other NWPs because of the types of activities it
authorizes. As stated in the Note at the end of NWP 27, reversion of an
area used as a compensatory mitigation project is not authorized by
this NWP. We do not track the acreage of wetland or stream restoration
and enhancement activities, or of wetland establishment activities,
that were authorized by NWP 27 and might be eligible for reversion.
There is no limit on the amount of wetlands that can be reverted under
a single authorization, provided all conditions of the NWP are met.
County soil and water conservation districts can register with the U.S.
Department of Agriculture to be a technical service provider.
One commenter said that pre-construction notifications should
include photographs, a description of pre-project site conditions, and
a discussion of general aquatic resource functions and services
anticipated to be provided by the activity. Another commenter stated
that pre-construction notification should be required for all
activities.
Paragraph (b) of general condition 31, pre-construction
notification, requires prospective permittees to submit documentation
that describes the proposed activity, including the anticipated loss of
waters of the United States and, if appropriate, sketches that help
clarify the project. The pre-construction notification also must
include a delineation of wetlands, other special aquatic sites, and
other aquatic habitats. We do not agree that pre-construction
notification should be required for all activities. The reporting
requirements for those activities that do not require pre-construction
notification provide sufficient opportunity for district engineers to
notify a project proponent if the proposed work does not comply with
the terms and conditions of the NWP. We have modified the ``Reporting''
provision of this NWP to require the permittee to submit information on
the baseline ecological conditions at the project site, such as a
delineation of wetlands, streams, and/or other aquatic habitats. We
have also changed the ``Notification'' provision of this NWP by
replacing the phrase ``the activity'' with ``any activity'' to clarify
that any activity that does not require reporting requires a pre-
construction notification. The last sentence of this NWP has been
changed to clarify that appropriate documentation concerning the
agreement, voluntary action, or Surface Mining Control and Reclamation
Act
[[Page 10217]]
permit is to be provided to the district engineer to fulfill the
reporting requirement.
One commenter said the NWP should require the use of best
management practices to avoid sediment loading of waters especially
when mechanized land clearing or work is conducted in waters of the
United States. The commenter stated that best management practices,
such as floating barriers, should also be used in upland areas to
protect downstream water quality. One commenter stated that Tribes
should be notified to ensure that NWP 27 activities avoid impacts to
tribal treaty natural resources and cultural resources.
General condition 12, soil erosion and sediment controls, requires
permittees to implement appropriate soil and erosion and sediment
controls during the work. In response to a pre-construction
notification, district engineers can add conditions to the NWP
authorization to require more specific sediment and erosion controls.
Division engineers can impose regional condition on this NWP to require
notification of the appropriate Tribe or Tribes if a proposed activity
might affect tribal treaty natural resources and cultural resources.
General condition 17, Tribal rights, requires that no NWP activity or
its operation impair reserved treaty rights, including treaty fishing
and hunting rights. Cultural resources are protected through the
requirements of general condition 20, historic properties, and general
condition 21, discovery of previously unknown remains and artifacts.
This NWP is reissued with the modifications discussed above.
NWP 28. Modifications of Existing Marinas. There were no changes
proposed for this NWP. Two commenters recommended adding a condition to
ensure the modification does not encroach upon additional waters. One
commenter suggested adding a condition to require a minimum maneuvering
distance for an outside slip to the boundary of the marina's riparian
interest area. One commenter stated that modifications for marinas on
state-owned aquatic lands should require pre-construction notification.
This NWP clearly states that it does not authorize expansions of
existing marinas. Since the NWP does not authorize expansions of
existing marinas, it is not necessary to add a condition to provide a
minimum maneuvering distance. Concerns about modifications to marinas
constructed on state-owned submerged lands are more appropriately
addressed through a state authorization process.
This NWP is reissued without change.
NWP 29. Residential Developments. We proposed to modify this NWP by
changing the waiver provision for activities resulting in the loss of
greater than 300 linear feet of intermittent and ephemeral stream bed,
to clarify that the district engineer will only issue the waiver after
making a project-specific written determination that the activity will
result in minimal adverse effects.
One commenter said that this NWP should not be reissued. One
commenter suggested revoking this NWP because of the large scale of
these projects and associated impacts to waters and said that
individual permits should be required for these activities. Two
commenters stated that the use of this NWP permit to authorize \1/2\-
acre losses of waters of the United States would result in more than
minimal adverse effects on an individual and cumulative basis. Two
commenters said that this NWP should not authorize residential
subdivisions, and should be limited to single family homes. Four
commenters recommended decreasing the acreage limit for losses of
waters of the United States to 1/4-acre. Two commenters suggested
increasing the acreage limit to 1 acre. One commenter requested
clarification on whether the acreage limits are applied cumulatively
when there is any subsequent expansion of a residential development.
We do not agree that this NWP should not be reissued or limited to
single family homes. The construction of residential developments,
including multiple unit residential developments, may have minimal
individual and cumulative adverse effects on the aquatic environment,
and is appropriate for NWP authorization if it meets the conditions of
this NWP. Provided the limits are met, the effects to waters of the
United States are similar whether single family homes or groups of
single family homes are constructed as a result of using this NWP to
authorize discharges of dredged or fill material into waters of the
United States. The \1/2\-acre limit, as well as the other terms and
conditions of this NWP, is consistent with longstanding limits on this
and other NWPs, and is appropriate for ensuring that this NWP
authorizes only those activities with minimal adverse effects on the
aquatic environment. Division engineers can regionally condition this
NWP to reduce the acreage limit or restrict or prohibit its use in
specific regions or waters. In response to a pre-construction
notification, district engineers may exercise discretionary authority
to add conditions to the NWP authorization or require an individual
permit. The \1/2\-acre and 300 linear foot limits apply to single and
complete projects. If a project proponent requests NWP authorization to
conduct additional discharges of dredged or fill material into waters
of the United States and modify a previously authorized single and
complete residential development project, both the previously
authorized losses and the additional losses are applied to the \1/2\-
acre and/or 300 linear foot limits. If the modification to the
residential development is a separate single and complete project with
independent utility from the previously authorized residential
development, then a separate NWP authorization may be issued. The
``Definitions'' section includes further clarification regarding single
and complete projects.
Several commenters objected to providing district engineers with
the authority to waive the 300 linear foot limit for the loss of
intermittent and ephemeral stream bed on a case-by-case basis after
reviewing a pre-construction notification and determining that the
proposed activity results in minimal adverse environmental effects. One
commenter said that the waiver provision would result in more than
minimal cumulative adverse effects on a watershed basis. Another
commenter stated that use of the waiver would authorize the losses of
large amounts of headwater streams. A few commenters suggested the
waiver provision should be removed from this NWP. Three commenters
recommended increasing the linear foot limit for the loss of stream bed
to 500 feet. Two commenters supported the clarification that a finding
of minimal adverse environmental effects would be required to issue a
waiver.
Responses to comments regarding the 300 linear foot limit for
losses of stream bed and the waiver provision for the loss of greater
than 300 linear feet of intermittent and ephemeral stream beds are
discussed in a previous section of this preamble. We are retaining the
300 linear foot limit for stream bed impacts, as well as the ability
for district engineers to provide written waivers of the 300 linear
foot limit for losses of intermittent and ephemeral stream beds.
One commenter recommended that compensatory mitigation be required
for all unavoidable impacts to wetlands authorized under this NWP.
Several commenters said that the NWP should require permittees to
minimize on-and off-site impacts and avoid flooding, because the
general conditions do not adequately address flooding or water quality
impacts. Several commenters said that this NWP should not authorize
residential subdivisions unless the
[[Page 10218]]
project proponents can demonstrate those subdivisions will not cause an
increased flood hazard on other properties.
We do not agree that it is necessary to require compensatory
mitigation for all activities authorized by this NWP to satisfy the
minimal adverse environmental effects requirement for a general permit.
For many small losses of waters of the United States authorized by this
NWP, it is not practicable to require compensatory mitigation to offset
those losses, especially in areas where there are no mitigation bank or
in-lieu fee program credits available. The requirements for permittee-
responsible mitigation in 33 CFR 332.1 through 332.7 impose substantial
documentation and planning requirements that affect the practicability
of providing ecologically successful permittee-responsible mitigation,
especially for small losses of waters of the United States.
Compensatory mitigation for NWP activities is only necessary in cases
where the district engineer makes a project-specific determination that
compensatory mitigation is needed to ensure that the activity results
in minimal individual and cumulative adverse effects on the aquatic
environment (see 33 CFR 330.1(e)(3)). General condition 23, mitigation,
requires permittees to avoid and minimize adverse effects to waters of
the United States on the project site, to the maximum extent
practicable. Concerns about adverse effects on floodplains and
floodways are more appropriately addressed by the state and local
agencies that have the primary responsibility for floodplain
management. General condition 10, fills within 100-year floodplains,
requires permittees to comply with applicable Federal Emergency
Management Agency-approved state or local floodplain management
requirements. Most floodplains are uplands, not waters of the United
States, and the Clean Water Act Section 404 permit program cannot be
used to manage floodplain impacts, except for discharges of dredged or
fill material or other pollutants into wetlands and other
jurisdictional waters that are located in floodplains. Residential
developments, whether they are single units or multiple-unit
subdivisions, must comply with all terms and conditions of this NWP,
including the requirement that they result in minimal adverse
environmental effects.
One commenter said that this NWP should not authorize activities
that result in adverse impacts to state or federally listed threatened
or endangered species or their habitats, or where there are rare or
imperiled habitat types. One stated that this NWP should not authorize
discharges of dredged or fill material below the ordinary high water
mark of any water of the United States or areas of fish habitat. One
commenter said that attendant features should be limited to a garage, a
driveway no more than 16 feet wide, parking or vehicle turn areas,
lawns that are no more than 15 feet from the building pad, septic
fields, utilities, deck foundations, and access paths. One commenter
suggested modifying this NWP to require culverts and other measures to
maintain pre-construction drainage patterns on the site. One commenter
said this NWP should require on-site sewage treatment systems.
Compliance with the federal Endangered Species Act is addressed by
general condition 18. Compliance with state or local threatened or
endangered species laws or ordinances, or state or local requirements
to avoid rare or imperiled habitats, is the responsibility of the
permittee. Since all activities authorized by this NWP require pre-
construction notification, district engineers will review proposed
activities that involve discharging dredged or fill material into open
waters, including fish habitat, to ensure that those activities result
in minimal adverse effects on the aquatic environment. The text of the
NWP provides examples of the types of attendant features that may be
authorized. Further restrictions on those attendant features may be
provided through regional conditions imposed by Division engineers or
activity-specific conditions added to an NWP 29 authorization by a
District engineer. General condition 9, management of water flows,
requires permittees to maintain, to the maximum extent practicable, the
pre-construction course, condition, capacity, and location of open
waters, such as streams, except under certain situations identified in
the text of the general condition. Sewage treatment system requirements
for residential developments are the primary responsibility of state or
local governments.
One commenter requested clarification on whether this NWP can be
used to authorize phased development projects. Several commenters
suggested limiting this NWP to a single use.
General condition 15, single and complete project, states that the
same NWP can only be used once for the same single and complete
project. If a particular phase of a phased development project is a
single and complete project with independent utility, a separate NWP 29
authorization can be used to authorize that single and complete non-
linear project.
Two commenters said that the NWP should require vegetated buffers.
One commenter stated that district engineers have too much discretion
regarding buffers and the general condition restricts buffers so that
they are not as effective as they could be.
Compensatory mitigation for activities authorized by NWP 29 may be
provided through the establishment and maintenance of riparian areas
next to open waters. Paragraph (f) of general condition 23 addresses
the use of riparian areas as compensatory mitigation, with recommended
widths. The recommended widths are based in part on the minimum width
necessary for riparian areas to help protect or improve water quality,
and in part on the principle that the amount of compensatory mitigation
must be roughly proportional to the permitted impacts (see 33 CFR
320.4(r)(2)). Since the NWP has an acreage limit of \1/2\-acre, any
required compensatory mitigation must be roughly proportional to the
authorized loss of waters of the United States.
This NWP is reissued as proposed.
NWP 30. Moist Soil Management for Wildlife. No changes were
proposed for this NWP and no comments were received. This NWP is
reissued without change.
NWP 31. Maintenance of Existing Flood Control Facilities. We
proposed to modify this NWP to authorize, in cases where a section 404
and/or section 10 permit would be required, the removal of vegetation
from levees associated with a flood control project.
Several commenters supported the proposed modification and said
that vegetation removal is a critical component of the maintenance of a
flood control project to ensure continued effectiveness and integrity
of levees and other flood control facilities. Two commenters objected
to the proposed modification. One commenter opposed the removal of
vegetation from flood control facilities, stating the vegetation has
ecological importance. One commenter said that vegetation removal is
not regulated by the Corps. One commenter stated that if the plant
species proposed to be removed have cultural and medicinal Native
American traditional uses, consultation with the Tribe or another type
of permit should be required for the activity.
We have retained the proposed language in this NWP, to authorize
the removal of vegetation from a levee,
[[Page 10219]]
when that activity involves a discharge of dredged or fill material
into waters of the United States or is considered to be work in
navigable waters of the United States for the purposes of Section 10 of
the Rivers and Harbors Act of 1899. We agree that vegetation removal
that does not involve such a discharge does not require a DA permit.
Division engineers can regionally condition this NWP to identify plant
species that have cultural and medicinal uses by Tribes, and to require
government-to-government consultation to address impacts to such
species. General condition 17, Tribal rights, protects reserved treaty
rights, including reserved water rights and treaty fishing and hunting
rights. Natural or cultural tribal trust resource concerns can still be
addressed through the NWP decisionmaking process, and would not
necessarily result in requiring an individual permit.
Several commenters said that vegetation may strengthen the
integrity of levees and stated that individual permits should be
required for vegetation removal. One commenter stated that vegetation
on levees should be allowed or retained as part of levee management and
that the vegetation should be removed only if specific levee
maintenance or safety concerns are identified. One commenter stated
that not allowing flood control districts to remove vegetation from
levees would put them into non-compliance with their permits and with
other state and local approvals. One commenter said that the removal of
vegetation from a levee should only be authorized after Endangered
Species Act consultation has been completed.
The decision on whether vegetation needs to be removed from a levee
to maintain its functional and structural integrity is more
appropriately made by those entities that are responsible for ensuring
the integrity and functional effectiveness of that levee. That decision
is not the responsibility of the Corps Regulatory Program or its staff.
The NWP is only a means to provide Department of the Army authorization
for such activities, if a section 404 and/or section 10 permit is
required. If the vegetation removal may affect a listed species under
the Endangered Species Act, and a Department of the Army permit is
required, the Corps will conduct section 7 consultation in accordance
with general condition 18, endangered species, unless another Federal
agency has already fulfilled the section 7 requirements, or the project
proponent has complied with the Endangered Species Act and received an
Endangered Species Act Section 10 permit.
Several commenters said that there should be an acreage limit for
vegetation removal. Another commenter recommended imposing a linear
foot limit on vegetation removal. One commenter recommended revoking
this NWP in California.
Since this NWP authorizes maintenance activities, we do not believe
there should be an acreage or linear foot limit on vegetation removal.
Division engineers may also add regional conditions to this NWP to
impose acreage or linear foot limits on vegetation removal.
One commenter stated that many NWP authorizations are related to
the maintenance baseline and the NWP should provide more details about
the maintenance baseline approval process. This commenter suggested
that the NWP specify: the deadline for completion, the responsible
party, the regulating entity that approves the maintenance baseline,
etc. One commenter requested clarification on the timeframe for
approval of the maintenance baseline.
The current terms and conditions of the NWP provide sufficient
details on what is needed to establish the maintenance baseline.
Approval of the maintenance baseline is to be made within the 45-day
review period, which begins once a complete pre-construction
notification is received by the appropriate Corps district office. The
pre-construction notification must include a description of the
maintenance baseline.
Many commenters expressed concern about the mitigation provision of
this NWP, especially the one-time limit for mitigation per facility
regardless of the number of times maintenance occurs. These commenters
said that limiting compensatory mitigation may result in more than
minimal adverse environmental effects, including adverse impacts to
floodplains and increased flood risk. These commenters recommended
requiring mitigation for each maintenance activity. One commenter
stated that vegetation removal should not be authorized because
effective compensatory mitigation cannot be provided. One commenter
said that certain riparian functions, such as shading, and losses of
aesthetic values, cannot be provided through off-site mitigation.
We do not agree that compensatory mitigation should be required for
each maintenance activity. On-going maintenance of flood control
facilities is necessary to ensure that those projects fulfill their
intended purposes. Any compensatory mitigation that was required when
the maintenance baseline was established is sufficient to offset losses
of aquatic resource functions. If maintenance is done in a timely
manner, there is likely to be little in terms of increases in aquatic
resource functions between maintenance activities. The purpose of
maintaining these flood control facilities is to reduce flood risk.
Riparian functions that increased between maintenance activities do not
need to be replaced by imposing compensatory mitigation requirements on
this NWP.
Several commenters said that the use of this NWP results in more
than minimal individual and cumulative impacts, and may also inhibit
comprehensive basin-wide flood risk management planning and restoration
approaches.
We do not agree that these maintenance activities cause more than
minimal adverse effects on the aquatic environment, on an individual or
cumulative basis. This NWP is intended as a tool to support appropriate
flood management activities, including comprehensive flood risk
management planning and restoration processes, where maintenance of
existing flood control structures is required.
One commenter recommended modifying the pre-construction
notification provision to require a topographic map identifying the
disposal site. One commenter said that the 1996 Water Resources
Development Act allows for regional variations in vegetation management
on levees.
The NWP already requires the prospective permittee to submit
information concerning the location of the dredged material disposal
site. There are a variety of maps that could be used to provide that
information, and we do not believe it should be restricted to
topographic maps. We have modified this NWP to state that all dredged
material must be placed in an area that has no waters of the United
States or in a separately authorized disposal site, since the disposal
of dredged material into non-jurisdictional waters and wetlands, as
well as uplands, does not require DA authorization. As stated above,
the decision on whether to remove vegetation is the responsibility of
the entity charged with managing and maintaining the flood control
facility.
This NWP is reissued with the modifications discussed above.
NWP 32. Completed Enforcement Actions. There were no changes
proposed for this NWP. One commenter recommended adding a condition to
the NWP requiring that the state be a party to any lawsuit, or have an
opportunity to review the consent or settlement agreement. Another
commenter requested coordination with any
[[Page 10220]]
affected Tribes prior to administering an enforcement action to ensure
that Tribal treaty resources are protected.
This NWP only provides Federal authorization under Section 10 of
the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water
Act, and it is not appropriate to modify this NWP to require state
involvement in these actions. States are often involved as co-
regulators in enforcement activities, under various authorities, and
this NWP in no way undercuts those authorities. General condition 17,
tribal rights, states that no activity or its operation may impair
reserved tribal rights.
This NWP is reissued as proposed.
NWP 33. Temporary Construction, Access, and Dewatering. We did not
propose any changes to this NWP. Several commenters recommended that
the Corps define the term ``temporary.'' One commenter said that
``temporary'' should be less than two years, another stated that one
year should be the limit, and a third commenter suggested 90 days as
the limit for what constitutes a temporary structure or fill. Several
commenters stated that the NWP should require a specific timeframe and
deadline for completion of revegetation activities. Other commenters
said that any revegetation should use only native plant species
associated with the general habitat type that had existed prior to
construction.
The term ``temporary'' should be determined by district engineers
on a case-by-case basis, after considering factors such as the type of
project, the waters affected by the activity, the construction
techniques and equipment used, etc. In response to a pre-construction
notification, district engineers can add conditions to the NWP
authorization to impose specific time frames for revegetating affected
areas. Activity-specific conditions may also be added to the NWP
authorization to specify the plant species to be used at the site.
One commenter asked why the NWP would state that a separate section
10 permit is required if a structure is left in place in navigable
waters of the United States after completion of construction,
especially if the waterbody is not a section 10 water. This commenter
wondered how a ``structure'' constructed in a non-Section 10 water
could be left in place and still qualify as a temporary structure.
In some cases, it may be more environmentally beneficial to leave
part of a structure in place in navigable waters of the United States,
when complete removal of the structure is expected to result in
substantial adverse environmental effects. For example, a structure may
be cut near the ocean bottom, but part of the structure and its
foundation left in place, because removing the entire structure and its
foundation would result in substantial disturbance of the ocean bottom.
Leaving those portions of the original structure and foundation in
place requires a permit under Section 10 of the Rivers and Harbors Act
of 1899 because it constitutes an obstruction that may alter the
course, condition, or capacity of navigable waters of the United
States. A structure left in place in a waterbody subject only to
section 404 jurisdiction does not require section 10 authorization.
Such a structure would not require a section 404 permit unless it meets
the definition of fill material (see 33 CFR 323.3(c)).
One commenter asked why NWP 33 activities require pre-construction
notification for temporary structures, work, and discharges while these
types of activities may be authorized under NWPs 3, 12, 13, and 14
without a pre-construction notification.
While temporary structures, work, and fills are authorized by NWPs
3, 12, 13, and 14, those NWPs have terms and conditions to help ensure
that those activities result in minimal adverse effects on the aquatic
environment. Since NWP 33 can be used to authorize temporary
structures, work, and discharges done in association with a wide
variety of other categories of activities, that uncertainty makes it
necessary to require pre-construction notification for all activities
authorized by NWP 33. Such a requirement allows the Corps to review the
temporary and permanent impacts that are likely to occur as a result of
the overall activity.
One commenter stated that the NWP should never authorize temporary
fills that impact more than 1,000 square feet or discharge more than 25
cubic yards into waters of the U.S., and temporary structures or
construction mats shall not impact more than \1/10\-acre. One commenter
stated that the NWP should require that geotextile fabric be installed
prior to placement of fill material, and two commenters suggested that
temporary culverts and bridges in streams should be required to match
the bankfull width and stream slope. Another commenter stated that all
slurry resulting from dewatering operation should be discharged through
a filter bag or pumped to a sump located away from wetlands and surface
waters and allowed to filter through natural upland vegetation, gravel
filters, or other engineered devices for a sufficient distance and/or
period of time necessary to remove sediment or suspended particles. One
commenter stated that cofferdams should be required to be maintained in
good working order throughout the duration of the project.
We do not agree that there should be acreage, linear foot, or cubic
yard limits on this NWP since it authorizes temporary structures, work,
or discharges, and all activities require pre-construction
notification. In response to a pre-construction notification, district
engineers can add activity-specific conditions to the NWP authorization
to impose limits or require specific best management practices or
specific construction techniques to minimize adverse effects to the
aquatic environment where necessary.
We have modified this NWP to state that temporary fill must be
entirely removed to an area that has no waters of the United States,
since the placement of fill material into non-jurisdictional waters and
wetlands, as well as uplands, does not require DA authorization.
The NWP is reissued with the modification discussed above.
NWP 34. Cranberry Production Activities. We did not propose any
changes to the NWP. One commenter said that this NWP should not
authorize losses of wetland functions. Two commenters expressed concern
that the 10-acre limit would allow significant losses of wetland
acreage and functions and values, if the 10-acre limit is applied only
to the five year period the NWP is in effect. These commenters proposed
making the 10-acre limit apply to future activities. One commenter
suggested limiting the NWP authorization to a single cranberry
production unit. One commenter said that this NWP should not be
reissued.
This NWP does not authorize discharges of dredged or fill material
that would result in a net loss of waters of the United States. While
there would be some loss of wetland function as wetlands are converted
for cranberry production, the NWP requires wetland acreage to be
maintained. There would be no loss of wetland acreage over time due to
future activities since the NWP does not authorize discharges of
dredged or fill material that would result in permanent losses of
wetland acres. This NWP applies to single and complete cranberry
production activities, which would be identified by district engineers
during the review of pre-construction notifications.
This NWP is reissued without change.
NWP 35. Maintenance Dredging of Existing Basins. There were no
changes proposed for this NWP. Two commenters recommended adding limits
to this NWP. Two commenters
[[Page 10221]]
said this NWP should not be used in areas with suspected sediment
contamination, especially in areas where there might be contamination
from fuel. Another commenter stated the applicant should demonstrate
that the sediment is not contaminated. One commenter asked that the
term ``upland'' be clarified to state that it means land located above
the ordinary high water mark. One commenter stated that this NWP would
have greater utility if it authorized beneficial use of dredged
material, such as wetland restoration, enhancement, or establishment
activities.
Since this NWP authorizes only maintenance dredging activities in
existing marina basins, we do not believe it is necessary to add an
acreage limit or other type of quantitative limit. Division engineers
can regionally condition this NWP to require notification to the
district engineer. This NWP is limited to maintenance dredging in
marina basins, access channels to marinas, and boat slips, which are
likely to have some degree of contaminated sediment in the substrate
because of past and present boat use, especially in larger marinas.
Removal of such contaminated sediments, and complying with the
requirement in the NWP to deposit the dredged material in an upland
site, will help ensure the activity results in minimal adverse effects
on the aquatic environment. Defining the term ``upland'' to mean lands
located above an ordinary high water mark would be incorrect. There may
be wetlands landward of the ordinary high water mark. We have modified
this NWP to state that dredged material must be placed in an area that
has no waters of the United States, since the disposal of dredged
material into non-jurisdictional waters and wetlands, as well as
uplands, does not require DA authorization. The district engineer may
issue a separate Department of the Army authorization to a project
proponent who wants to use the dredged material to restore, enhance, or
establish wetlands.
One commenter stated that precautions should be taken to ensure
that dredging equipment does not entrain or kill any Federally-listed
species and recommend that preemptive trawling around the dredge head
be conducted to capture or relocate state or federally listed species.
General condition 18 addresses compliance with the Endangered
Species Act, and section 7 consultation is required for any activity
that may affect listed species or is located in designated critical
habitat.
This NWP is reissued with the modification discussed above.
NWP 36. Boat Ramps. We did not propose any changes to this NWP. One
commenter said that boat ramps should not be authorized by NWPs because
they cause significant environmental impacts, including impacts to
Tribal treaty fishing activities and access. One commenter stated that
this NWP should be limited to individual riparian lot owners and not
authorize commercial boat ramps. One commenter said that the NWP should
require notification to the state agency responsible for managing
state-owned submerged lands.
The terms and conditions of this NWP (specifically the limits on
fill volume and ramp width) will ensure that the NWP authorizes only
those activities that result in minimal adverse effects on the aquatic
environment. Division engineers may regionally condition this NWP to
restrict or prohibit its use in specific waters or geographic areas if
they have concerns that more than minimal individual and cumulative
adverse environmental effects may occur. In response to a pre-
construction notification, district engineer may add activity-specific
conditions to the NWP authorization to satisfy the minimal adverse
environmental effects requirement. We do not agree that this NWP should
be limited to private land owners. Commercial boat ramps that comply
with the terms and conditions of this NWP will also result in minimal
adverse environmental effects. The potential for adverse effects is
based on the footprint of the ramp, which is limited by the conditions
of this NWP, not its ownership. State agencies responsible for managing
submerged lands may develop their own procedures for regulating and
authorizing the construction of boat ramps on submerged lands. The
Corps has neither the authority nor the resources to enforce any state
requirements with respect to such lands.
Two commenters recommended reducing the pre-construction
notification thresholds for this NWP. One commenter suggested limiting
discharges of dredged or fill material to 25 cubic yards, with a
maximum boat ramp width of 12 feet. Another commenter said that the
quantitative limits for this NWP should not be waived. One commenter
stated that the current 50 cubic yard limit is too small and should be
increased to authorize larger boat ramps.
The pre-construction notification thresholds are sufficient for
ensuring that this NWP authorizes activities with minimal individual
and cumulative adverse effects on the aquatic environment. We have
retained the provision authorizing district engineers to issue written
waivers to the 50 cubic yard and/or 20 foot width limits, if a proposed
activity is determined to result in minimal adverse environmental
effects. The waiver provision may be used to authorize larger boat
ramps, as long as they are determined by the district engineer to
result in minimal adverse environmental effects.
One commenter asked for clarification on what is meant by placement
in the upland. One commenter said that these activities may affect
historic properties and the activity should not be authorized unless
the state concurs that there are no documented resources within the
permit area.
We have modified paragraph (d) to clarify that all excavated
material must be removed to an area that has no waters of the United
States, because some wetlands and waters are not subject to Clean Water
Act jurisdiction and section 404 permits are not required to discharge
dredged or fill material into those non-jurisdictional wetlands and
waters. A separate Department of the Army authorization is required if
the project proponent wants to deposit the excavated material into
waters of the United States. Activities authorized by this NWP must
comply with general condition 20, historic properties, as well as
general condition 21, discovery of previously unknown remains and
artifacts. District engineers will conduct National Historic
Preservation Act Section 106 consultation if they determine the
proposed activity has the potential to cause effects to any historic
property.
This NWP is reissued as proposed.
NWP 37. Emergency Watershed Protection and Rehabilitation. No
changes were proposed for this NWP. Two commenters stated that in their
region, flood control activities including those authorized by this
NWP, are important and suggested reducing the 45-day waiting period for
pre-construction notifications to 21 days. Two commenters expressed
support for allowing district engineers to waive the pre-construction
notification requirements in cases where there is an unacceptable
hazard to life or a significant loss of property or economic hardship
will occur. One commenter said that although this NWP is intended to
authorize watershed protection and rehabilitation, these activities may
result in a net loss of waters and appropriate mitigation should be
required.
We do not believe it would be appropriate to reduce the pre-
construction notification review period
[[Page 10222]]
for this NWP from 45 days to 21 days. The NWP provides flexibility for
the emergency watershed protection and rehabilitation activities to
proceed immediately if there is an unacceptable hazard to life or a
significant loss of property or economic hardship will occur. The NWP
does not allow the district engineer to waive the pre-construction
notification requirement in cases where there would be unacceptable
hazards to life or significant losses of property or economic
hardships. If a project proponent wants to use NWP 37 to authorize an
emergency watershed protection and rehabilitation activity, pre-
construction notification is required. This is a minimally burdensome
requirement that can be complied with quickly which allows the district
engineer to verify that there is a genuine emergency. In addition, in
response to a pre-construction notification, the district engineer may
condition the NWP authorization to require compensatory mitigation to
offset losses of aquatic resources and ensure that the adverse effects
on the aquatic environment are minimal (see 33 CFR 330.1(e)(3) and
general condition 23, mitigation).
The NWP is reissued without change.
NWP 38. Cleanup of Hazardous and Toxic Waste. We did not propose
any changes for this NWP. One commenter stated the NWP should be
revoked because hazardous waste cleanup from aquatic areas has the
potential to cause significant adverse environment effects during and
after the cleanup activities. This commenter said that these activities
require site-specific review and should not be authorized by NWP.
Another commenter recommended adding a condition to the NWP to require
minimization, to the maximum extent possible, of impacts to waters and
wetlands, and require restoration of the affected areas.
The cleanup of hazardous and toxic wastes, if conducted properly,
will improve the aquatic environment by removing harmful chemicals and
other substances that are likely to degrade the quality of wetlands,
streams, and other aquatic resources, as well as the functions they
provide. This NWP requires pre-construction notification, which will
provide the district engineer the opportunity to review the proposed
activity, including available site-specific information, to determine
if that activity qualifies for NWP authorization. This NWP authorizes
cleanup activities conducted, ordered, or sponsored by other government
agencies, which have also reviewed those activities. In some cases
these activities need to be commenced quickly and it could cause
additional harm to the aquatic environment if they had to wait for an
individual permit to be issued. The district engineer may also add
activity-specific conditions to the NWP authorization to require
compensatory mitigation, including restoration or rehabilitation of
affected aquatic resources (see 33 CFR 330.1(e)(3) and general
condition 23, mitigation) to satisfy the minimal adverse environmental
effects requirement for general permits.
This NWP is reissued without change.
NWP 39. Commercial and Institutional Developments. We proposed to
modify this NWP by changing the waiver provision for activities
resulting in the loss of greater than 300 linear feet of intermittent
and ephemeral stream bed, to clarify that the district engineer will
only issue the waiver after making a project-specific written
determination that the activity will result in minimal adverse effects.
Two commenters expressed support for the proposed modification. One
commenter said that intermittent streams should be removed from the
waiver provision so that the 300 linear foot limit could be waived only
for losses of ephemeral streams. One commenter recommended removing the
waiver provision.
We have retained the provision allowing the 300 linear foot limit
to be waived for losses of intermittent stream bed, since such
activities may, in some cases, result in minimal adverse effects on the
aquatic environment. General comments concerning the 300 linear foot
limit to the loss of stream bed are discussed in a separate section of
the preamble.
One commenter urged the elimination of the pre-construction
notification because that requirement results in delays and increases
in cost. One commenter recommended conducting a natural heritage
database search if a waiver determination is made that the activity
will result in minimal adverse effects.
The pre-construction notification requirement is necessary so that
all of these activities are reviewed by district engineers to ensure
that those activities result in minimal adverse effects on the aquatic
environment. District engineers may add conditions to the NWP
authorization to require compensatory mitigation or other measures to
comply with the minimal adverse environmental effects requirement
established for general permits. District engineers may consider
information from state natural heritage databases where appropriate
when evaluating a pre-construction notification involving a proposed
waiver of the 300 linear foot limit.
Two commenters suggested increasing the acreage limit from \1/2\ to
one acre. Another said that acreage limits should be established on a
regional or watershed basis, instead of a single national acreage
limit. Two commenters suggested increasing the linear foot limit to 500
feet. One commenter stated that the NWP should not authorize activities
that are not water dependent.
We believe that both the \1/2\-acre limit and the 300 linear foot
limit are necessary to ensure that this NWP authorizes activities that
result only in minimal individual and cumulative adverse effects on the
aquatic environment. Division engineers can regionally condition this
NWP to further ensure only minimal adverse effects to the aquatic
environment occur in a particular area or region, based on region
specific conditions. District engineers can also add specific
conditions to an NWP authorization to ensure minimal individual or
cumulative adverse effects. The statutory basis for authorizing
activities by general permits is that they have minimal adverse
effects, individually and cumulatively, not that they be water
dependent.
One commenter said that commercial and institutional developments
are typically phased developments, are larger in scale than other
projects, and should not be authorized by NWP. One commenter said that
this NWP should not be reissued because these activities result in more
than minimal cumulative adverse effects to wetlands and streams. One
commenter suggested requiring compensatory mitigation for all
activities authorized by this NWP. Two commenters said that this NWP
should include a requirement to establish buffers next to waters of the
United States, clarification that the limits apply to the project site
and not to multiple applicants, and a provision requiring flood
protections. One commenter stated industrial facilities that may be
authorized by this NWP cause indirect impacts to water quality that
could be significant and suggested not reissuing this NWP.
Phased developments may be authorized by general permits, as long
as they comply with all applicable terms and conditions of those
general permits. In particular, an NWP may only be used once for each
single and complete project. The limits in this NWP, which are
consistent with those in many other NWPs, will generally ensure minimal
adverse effects. In specific watersheds or other geographic areas where
a
[[Page 10223]]
district engineer is concerned that the use of NWP 39 may result in
more than minimal cumulative adverse effects to the aquatic
environment, the division engineer may regionally condition this NWP to
restrict or prohibit its use to ensure that the threshold for minimal
individual and cumulative adverse effects on the aquatic environment is
not exceeded. We do not agree that compensatory mitigation should be
required for all activities authorized by this NWP. District engineers
will add activity-specific conditions to the NWP authorization to
require compensatory mitigation in accordance with general condition
23, mitigation (also see 33 CFR 330.1(e)(3)), where necessary to ensure
minimal effects. The establishment and maintenance of riparian areas
next to open waters, or buffers next to wetlands, may be required as
compensatory mitigation, in accordance with general condition 23,
mitigation, and the regulations at 33 CFR part 332. The acreage limits
of this NWP apply to single and complete projects, even though a single
and complete project may have more than one project proponent. In
general, a commercial development project in which a developer prepares
a large site and then markets individual lots to individual builders
would be considered one single and complete project and the acreage
limits would apply to the development as a whole. See the definition of
``single and complete non-linear project'' for further information.
General condition 10, fills in 100-year floodplains, requires
permittees to comply with applicable state or local floodplain
management requirements that have been approved by the Federal
Emergency Management Agency. District engineers will review pre-
construction notifications requesting NWP 39 authorization for
industrial facilities to ensure that adverse effects to water quality
caused by the NWP activity are minimal, individually and cumulatively.
One commenter objected to authorizing the expansion of commercial
and institutional developments into waters of the United States,
stating that it discourages avoidance and minimization and is contrary
to the 404(b)(1) Guidelines. One commenter requested clarification
whether this NWP applies to new project construction or existing
construction projects so the acreage limits are applied cumulatively
for both the original construction and any subsequent expansion of the
development. One commenter asked whether certain categories of
activities that were not authorized by the 2007 version of NWP 39,
specifically new golf courses, new ski areas, or oil or gas wells,
could be expanded through the authorization provided by this NWP. Three
commenters suggested eliminating the exclusion for the construction of
oil and gas wells and attendant features.
The expansion of commercial and institutional developments into
waters of the United States may qualify for NWP authorization, as long
as it complies with all applicable terms and conditions of the NWP and
results in minimal individual and cumulative adverse effects on the
aquatic environment. This NWP complies with the 404(b)(1) Guidelines,
especially 40 CFR 230.7, which addresses the issuance of general
permits. The acreage limit applies to a single and complete project.
The expansion of an existing commercial or institutional development
may only be authorized under a separate NWP authorization if it is a
separate single and complete project with independent utility. For
example, one or more phased components of a commercial or institutional
development may have independent utility and may be authorized as
separate single and complete projects. The expansion of existing golf
courses or ski areas may be authorized by this NWP. We agree that the
construction of pads for oil and gas wells is a type of commercial
development that would be appropriate for inclusion in this NWP.
District engineers may add conditions to NWP 39 authorizations to
require the removal of these pads and restoration of the site once oil
or gas extraction operations have ceased and the wells will no longer
be used.
One commenter said that this NWP could be used to authorize
activities associated with wind energy generating structures, solar
towers, or overhead utility lines, which have the potential to
interfere with Department of Defense's long range surveillance,
homeland defense, testing, and training missions. This commenter
requested that copies of NWP 39 pre-construction notifications and NWP
verification letters for these activities be provided to the Department
of Defense Siting Clearinghouse, so that the Department of Defense
could have an opportunity to coordinate with the project proponent to
ensure that long range surveillance, homeland defense, testing, and
training missions are not adversely affected by these activities.
We have added a Note at the end of this NWP to require district
engineers to send pre-construction notifications and NWP verification
letters to the Department of Defense Siting Clearinghouse if NWP 39 is
proposed to be used, and is used, to authorize the construction of wind
energy generating structures, solar towers, or overhead transmission
lines. The Department of Defense Siting Clearinghouse is responsible
for coordinating with the project proponent and resolving any potential
effects on Department of Defense long range surveillance, homeland
defense, testing, and training missions.
This permit is reissued with the modification discussed above.
NWP 40. Agricultural Activities. We proposed to modify this NWP so
the 300 linear foot limit applies to all stream losses, not just
drainage ditches constructed in streams. To waive the 300 linear foot
limit for losses of intermittent or ephemeral stream bed, the district
engineer would have to make a project-specific written determination
that the activity will result in minimal adverse effects.
Two commenters support the changes and said the modification would
ensure NWP 40 authorizes activities with minimal adverse effects on the
aquatic environment. One commenter opposed expanding the 300 linear
foot limit to all stream losses, stating that the NWP should not
authorize the loss of natural streams. Another commenter recommended
removing intermittent streams from the waiver provision to limit it to
ephemeral streams. One commenter said that waivers for the loss of
greater than 300 linear feet of intermittent and ephemeral streams
should not be issued until a natural heritage database search was
completed. Two commenters stated that the acreage limit and the ability
to waive the 300 linear foot limit do not adequately address cumulative
impacts and requested the waiver provision be removed.
Comments concerning the 300 linear foot limits for the loss of
stream bed and the waiver process are discussed in a previous section
of the preamble. We are adopting the proposed language for the waiver
provision. We are retaining the provision allowing the 300 linear foot
limit to be waived for losses of ephemeral and intermittent stream bed,
since such activities may result in minimal adverse effects on the
aquatic environment. District engineers may consider information from
state natural heritage databases when evaluating a pre-construction
notification involving a proposed waiver of the 300 linear foot limit.
We believe that both the \1/2\-acre limit and 300 linear foot limit for
stream bed losses, along with the division engineer's authority to add
regional
[[Page 10224]]
conditions to this NWP and the district engineer's authority to add
activity-specific conditions to an NWP authorization, will ensure that
the NWP authorizes activities with minimal individual and cumulative
adverse effects on the aquatic environment. Division engineers may also
suspend or revoke this NWP in watersheds or other geographic areas if
they find that use of the NWP would result in more than minimal
cumulative adverse environmental effects.
One commenter stated the \1/2\-acre limit should be based on farm
tract and asserted NWP 40 allows for the incremental fill of
agricultural wetlands. One commenter stated that roadside stands should
not be considered farm buildings for authorization under this permit.
Another commenter recommended farm building pads be limited to areas
that have been in existing, ongoing, agricultural production since at
least 1980. One commenter remarked concern that this NWP allows fills
in waters for non-water dependent uses. Another commenter asserted this
NWP should not authorize farm ponds in wetlands.
The \1/2\-acre limit applies to a single and complete project. The
district engineer will determine, after considering the specific
circumstances for a pre-construction notification, whether the single
and complete project should be based on a farm tract, property
boundary, or other appropriate geographic area. Road stands may be
considered farm buildings for the purposes of this NWP. We do not agree
that building pads for farm buildings should be limited to existing
agricultural areas, or that they should be treated differently than
building pads authorized by NWPs 29 or 39. General permits, including
NWPs, may authorize activities that are not water-dependent, as long as
the general permit is issued in accordance with the requirements in the
404(b)(1) Guidelines at 40 CFR 230.7.
This NWP is reissued as proposed.
NWP 41. Reshaping Existing Drainage Ditches. There were no changes
proposed for this NWP. Several commenters requested adding more terms
and conditions to this NWP to provide requirements concerning slope
stability, conducting a natural heritage database search, limiting the
NWP to reshaping no more than one mile of drainage ditch, and placing
the excavated material in uplands. One commenter suggested replacing
the phrase ``for the purpose of improving water quality'' with ``for
the purpose of improving water quality or public safety.'' This
commenter also said the NWP should authorize drainage improvements
beyond the original as-built capacity. One commenter stated that this
NWP should not be exempt from compensatory mitigation requirements even
though the activity is designed to improve water quality.
We do not agree that the suggested additional terms and conditions
are necessary to ensure that this NWP authorizes ditch reshaping
activities that have minimal adverse effects on the aquatic
environment. The drainage ditch slope is more appropriately determined
on a case-by-case basis. District engineers have the discretion to
consult state natural heritage databases while reviewing pre-
construction notifications. The authorized activities are intended to
improve water quality, so there is no need to impose a one mile limit
or require compensatory mitigation. Reshaping a drainage ditch to
improve water quality may involve discharging dredged or fill material
into jurisdictional waters within the ditch. This NWP was originally
issued to encourage activities that would help improve water quality
within a watershed, not to provide for public safety. Discharging
dredged or fill material into waters of the United States to reshape
existing drainage ditches primarily for the purposes of public safety
may be authorized by other NWPs, regional general permits, or
individual permits.
This NWP is reissued as proposed.
NWP 42. Recreational Facilities. We proposed to modify this NWP by
changing the waiver provision for activities resulting in the loss of
greater than 300 linear feet of intermittent and ephemeral stream bed,
to clarify that the district engineer will only issue the waiver after
making a project-specific written determination that the activity will
result in minimal adverse effects.
Two commenters said that the \1/2\-acre limit of this NWP does not
ensure minimal adverse effects, and one of these commenters stated that
the 300 linear foot limit for stream bed losses does not ensure minimal
adverse effects either. Several commenters supported the proposed
waiver provision, since it emphasizes that the appropriate test is that
the activity results in minimal adverse effects. One commenter
suggested removing intermittent streams from the waiver provision
because of the potential for significant impacts to intermittent
streams.
The \1/2\-acre limit is the appropriate limit to ensure that the
activities authorized by this NWP result in minimal adverse effects on
the aquatic environment. This limit has been in place over several
permit terms and multiple NWPs and we are not aware of evidence that it
has allowed projects that do not meet the minimal effects requirement
to be authorized, nor have commenters provided such evidence. Division
engineers may regionally condition this NWP to reduce the acreage limit
or revoke the NWP if its use would result in more than minimal
individual and cumulative adverse effects on the aquatic environment.
The 300 linear foot limit for losses of stream bed is also necessary to
ensure minimal adverse environmental effects. The waiver provision is
discussed in a separate section of the preamble. We are retaining the
300 linear foot limit for stream bed impacts, as well as the ability
for district engineers to provide written waivers of the 300 linear
foot limit for losses of intermittent and ephemeral stream beds.
One commenter suggested adding a condition to this NWP to limit
fill pathways on public lands to six feet wide, with a maximum length
of 200 feet, and require open pile or floating boardwalks/docks by
prohibiting the discharges below the ordinary high water mark of inland
lakes, streams, or the Great Lakes, or areas that otherwise provide
fish habitat functions of any kind.
We do not believe the recommended restrictions are necessary to
ensure that the NWP authorizes only those activities that result in
minimal adverse effects on the aquatic environment. Division engineers
may add regional conditions to this NWP to limit certain activities or
require specific construction techniques. Division engineers may also
restrict or prohibit the use of this NWP in certain waters to protect
important resources, such as fish habitat.
One commenter supports requiring pre-construction notification for
all activities authorized by this NWP. One commenter said that the
activities authorized by this NWP are not similar in nature. One
commenter suggested adding a condition requiring recreational
facilities to be integrated into the natural landscape and not
substantially change pre-construction grades or deviate from natural
landscape contours. One commenter requested clarification as to when an
easement will not be required.
We have retained the requirement that all project proponents who
want to use this NWP must submit a pre-construction notification. This
NWP authorizes a specific category of activities (i.e., recreational
facilities) and complies with the ``similar in nature'' requirement of
Section 404(e) of the Clean Water Act. We do not agree that it is
necessary to require
[[Page 10225]]
recreational facilities to be integrated into the natural landscape and
not substantially change pre-construction grades. The \1/2\-acre and
300 linear foot limits, as well as the requirement to avoid and
minimize adverse effects to waters of the United States to the maximum
extent practicable on the project site (see general condition 23,
mitigation), help ensure that the NWP authorizes activities that result
in minimal adverse effects. Conservation easements or other appropriate
long-term protection instruments will only be required, if necessary,
for areas that are used to provide compensatory mitigation for
activities authorized by this NWP.
This permit is reissued as proposed.
NWP 43. Stormwater Management Facilities. We proposed to modify
this NWP by adding low impact development stormwater management
features to the examples of types of stormwater management facilities
that may be authorized by this NWP. We also proposed to modify this NWP
by changing the waiver provision for activities resulting in the loss
of greater than 300 linear feet of intermittent and ephemeral stream
bed, to clarify that the district engineer will only issue the waiver
after making a project-specific written determination that the activity
will result in minimal adverse effects.
One commenter expressed support for the proposed modifications. One
commenter suggested that the acreage limit should be increased from \1/
2\-acre to one acre to increase the utility and usefulness of this NWP.
Several commenters said this NWP should not authorize new stormwater
management facilities. One commenter stated that the NWP should only
authorize the construction of an outfall structure. A couple of
commenters said that this NWP should be changed to clarify that only
constructed wetlands may be used to detain, retain, or treat
stormwater.
We do not agree that the acreage limit for this NWP should be
increased from \1/2\-acre to one acre. The \1/2\-acre limit is
necessary to ensure that this NWP authorizes only those activities that
result in minimal individual and cumulative adverse effects on the
aquatic environment. The construction of new stormwater management
facilities may be authorized by this NWP (if all other conditions are
met), because those activities often result in minimal adverse
environmental effects and help protect the aquatic environment by
preventing or reducing the amount of pollutants that enter streams,
coastal waters, and other aquatic habitats. Stormwater management
facilities are an important tool for fulfilling the objective of the
Clean Water Act, by protecting and restoring the physical, chemical,
and biological integrity of our Nation's waters. The construction of
stormwater management facilities may involve discharges of dredged or
fill material into jurisdictional wetlands, so it would not be
appropriate to limit this NWP to constructed wetlands for the
detention, retention, or treatment of stormwater.
We have substantially modified the first paragraph of this NWP to
clarify how construction and maintenance activities may be authorized
by this NWP, including the application of the waste treatment system
exclusion at 33 CFR 328.3(a)(8). Section 328.3(a)(8) states that
``[w]aste treatment systems, including treatment ponds or lagoons
designed to meet the requirements of'' the Clean Water Act are not
waters of the United States. The first half of this paragraph provides
examples of the types of stormwater management facilities that may be
authorized by this NWP, if the construction of those facilities
involves discharges of dredged or fill material into waters of the
United States. The second half of this paragraph states that to the
extent that a section 404 permit is required, this NWP also authorizes
discharges of dredged or fill material into waters of the United States
for the maintenance of stormwater management facilities. Therefore,
this NWP authorizes maintenance activities involving discharges of
dredged or fill material if the stormwater management facility is not
eligible for the waste treatment system exclusion. A section 404 permit
is not required for a discharge of dredged or fill material into a
waste treatment system that qualifies for the waste treatment system
exclusion at 33 CFR 328.3(a)(8).
Several commenters supported the addition of low impact development
stormwater management features to the examples of activities authorized
by this NWP. One commenter said that while the construction of low
impact development stormwater management features may need a Department
of the Army permit in some circumstances, the maintenance of low impact
development stormwater management features does not require a section
404 permit. This commenter also stated that requiring Department of the
Army permits for maintenance activities in watersheds that have total
maximum daily load requirements would result in needless paperwork
without any environmental benefits. One commenter requested an
explanation of the value of low impact development stormwater
management facilities and examples of those facilities that may be
authorized by this NWP. One commenter expressed concern that areas not
subject to Clean Water Act jurisdiction, such as swales and upland
areas holding waters only for short periods of time, may be considered
to be waters of the United States if they are used for low impact
development stormwater management features. Several commenters
requested a definition for ``low impact development stormwater
features'' in the definitions section. One commenter asked whether
hybrid or combined bank protection and stormwater management techniques
are authorized by this NWP or authorized by other NWPs.
We have modified the text of this NWP to clarify that the
construction of low impact development integrated management features
is authorized by this NWP, if the construction involves discharges of
dredged or fill material into waters of the United States. We have also
provided examples of the types of low impact development integrated
management features that may be authorized by this NWP, such as
bioretention facilities (e.g., rain gardens), vegetated filter strips,
grassed swales, and infiltration trenches. After these low impact
development integrated management features are constructed, they may
not be waters of the United States and subsequent maintenance may not
require further Department of the Army authorization. The
jurisdictional status of these features will be determined by district
engineers on a case-by-case basis, after applying the appropriate
regulations and guidance. The Corps of Engineers wetland delineation
manual and the applicable regional supplement will be used to determine
whether a particular feature is a wetland under the definition at 33
CFR 328.3(b). Many low impact development integrated management
features may not have wetland hydrology because they are designed to
improve water infiltration. By modifying this NWP to make it clear that
it can be used to authorize discharges of dredged or fill material to
construct low impact development integrated management features, we are
providing general permit authorization for activities that will help
state and local entities comply with the total daily maximum loads
established for a watershed or watershed. We do not believe it is
necessary to define the term ``low impact development stormwater
management features'' in the Definitions section of the NWPs because
the text of the NWP provides examples of those features. This NWP may
authorize some minor bank stabilization associated with the
construction of a stormwater
[[Page 10226]]
management facility. Bank protection may be authorized by this NWP or
another appropriate NWP.
One commenter asked whether this NWP authorizes discharges of
dredged or fill material for the construction of new stormwater
facilities in intermittent or ephemeral streams that are waters of the
United States. One commenter recommended prohibiting the construction
of new stormwater management facilities in intermittent streams to
avoid impacts to numerous rare and threatened and endangered species.
Another commenter said this NWP should only authorize activities in
ephemeral streams.
We do not believe it is necessary to limit the construction of new
stormwater management facilities to ephemeral streams. District
engineers will review pre-construction notifications and determine
whether the proposed activities will have minimal adverse effects on
intermittent and ephemeral streams. Activities authorized by this NWP
must also comply with general condition 18, Endangered Species. State-
listed rare species may be further protected through the establishment
of regional conditions by division engineers, after a public notice and
comment process.
Several commenters objected to allowing the district engineer to
waive the 300 foot limit for the loss of intermittent or ephemeral
stream bed. Another commenter suggested increasing the linear limit for
the loss of stream beds to 500 feet before requiring a waiver, to
authorize more activities. Several commenters stated the waiver
provision should be removed and losses of waters of the United States
should be limited to \1/2\-acre or 300 linear feet of stream bed.
Another commenter stated that no waivers should be allowed under any
circumstances. One commenter suggested that waivers for losses of
intermittent and ephemeral stream beds not be issued until the
appropriate natural heritage resources database is consulted to inform
the minimal adverse impact determination.
We are retaining the provision allowing district engineers to waive
the 300 linear foot limit for the loss of intermittent and ephemeral
streams, upon making a written determination that the discharge will
result in minimal adverse effects. The 300 linear foot limit should not
be increased to 500 linear feet, to ensure that any loss of perennial
stream bed results in no more than minimal individual and cumulative
adverse effects on the aquatic environment. District engineers may use
available information, including state or local natural heritage
resources databases, to help make the minimal adverse effects
determination.
Some commenters suggested combining the maintenance component of
this NWP with NWP 3 since both include maintenance activities. Another
commenter suggested limiting this NWP to authorizing only the
maintenance of stormwater management facilities constructed and used
for the primary purpose of providing stormwater detention, retention
and treatment.
As discussed above, we have modified this NWP to clarify that Clean
Water Act Section 404 permits would not be required for maintenance
activities (or other discharges of dredged or fill materials) involving
stormwater management facilities that qualify for the waste treatment
system exclusion at 33 CFR 328.3(a)(8) because these are excluded from
the definition of waters of the United States. We do not believe it is
necessary to combine maintenance authorized by NWP 43 with the
maintenance activities authorized by NWP 3, since NWP 3 authorizes a
variety of maintenance activities. Some stormwater management
facilities may have purposes or uses other than stormwater detention,
retention or treatment, so maintenance should still be authorized by
this NWP, if a section 404 permit is required and the activity results
in minimal adverse effects on the aquatic environment.
One commenter suggested that if a development project is required
to install stormwater management facilities, the entire development
should be treated as the ``area of potential effects'' for the purposes
of compliance with Section 106 of the National Historic Preservation
Act. One commenter recommended requiring any contaminated materials to
be properly handled and disposed of.
The permit area for section 106 compliance will be determined by
applying the criteria in Appendix C of 33 CFR part 325, the Corps
Regulatory Program's procedures for the protection of historic
properties, as well as the interim guidance issued on April 25, 2005,
and January 31, 2007. In general, as is made clear in these regulations
and guidance, the Corps does not agree that the area of potential
effects for an NWP that is needed for a discharge involving one aspect
of a development project necessarily encompasses the entire project,
though this may be true in individual cases depending on the facts and
circumstances. Compliance with general condition 20, Historic
Properties, is required for activities authorized by this NWP. In
response to a pre-construction notification, the district engineer may
add activity-specific conditions to the NWP authorization to protect
waters of the United States from adverse effects due to contaminated
materials.
This NWP is reissued with the modifications discussed above.
NWP 44. Mining Activities. We proposed to add the 300 linear foot
limit for the loss of stream bed, which for intermittent and ephemeral
stream beds can be waived by the district engineer if he or she makes a
written determination concluding that the activity will result in
minimal adverse effects.
One commenter requested the NWP be revoked due to the large scale
of these activities and their impacts on water quality. One commenter
said this NWP should only authorize mining activities that have been
permitted by state agencies. This commenter also stated that this NWP
should not authorize peat mining or in-stream gravel mining. One
commenter recommended expanding the categories of applicable waters to
include tidal waters, since the term ``adjacent'' has not been
adequately defined.
The terms and conditions of this NWP, including the addition of the
300 linear foot limit for the loss of stream bed, help ensure that the
NWP authorizes only those activities that have minimal individual and
cumulative adverse effects on the aquatic environment. Division
engineers can regionally condition this NWP to restrict or prohibit its
use in specific waters or categories of waters, or in particular
geographic regions. After reviewing a pre-construction notification,
the district engineer may add activity-specific conditions to the NWP
authorization to require water quality management measures so that the
activity causes only minimal degradation of water quality (see general
condition 25, water quality), or he or she may exercise discretionary
authority and require an individual permit if it is not possible to
reduce the adverse effects so that they are no more than minimal.
Division engineers may also regionally condition this NWP to prohibit
or restrict peat mining or in-stream gravel mining. We do not agree
that the NWP should be expanded to authorize discharges of dredged or
fill material into tidal waters, since such activities may result in
more than minimal adverse effects on the aquatic environment. The term
``adjacent'' is defined in the Corps regulations at 33 CFR 328.3(c) and
is used to identify wetlands that are waters of the United States by
virtue of being adjacent to jurisdictional waters.
[[Page 10227]]
Many commenters opposed adding the 300 linear foot limit for the
loss of stream bed and stated that the 300 linear foot limit should not
apply to smaller tributaries. One commenter recommended increasing the
linear foot limit to 500 feet. One commenter said the proposed linear
foot limit would have the effect of preventing mining of more than one
million tons of mineable reserves. One commenter stated that waivers to
the 300 linear foot limit should not be issued without evaluating
documented natural heritage resources located in the project area.
As stated above, the 300 linear foot limit is being added to help
ensure that the NWP authorizes only those activities that result in
minimal adverse effects on the aquatic environment and other applicable
public interest review factors. Increasing the linear foot limit for
the loss of stream bed to 500 feet increases the likelihood that these
mining activities would result in more than minimal adverse effects and
therefore not comply with the requirements of Section 404(e) of the
Clean Water Act. Mining activities that do not qualify for NWP
authorization may be authorized by individual permits or other general
permits, such as regional general permits issued by district engineers.
District engineers will evaluate appropriate information before waiving
the 300 linear foot for losses of intermittent or ephemeral stream bed,
which may include state natural heritage resource databases. In areas
where district engineers have designated state natural heritage sites
as critical resources, compliance with general condition 22, designated
critical resource waters will protect those natural heritage sites.
This NWP is reissued as proposed.
NWP 45. Repair of Uplands Damaged by Discrete Events. We proposed
to modify this NWP to clarify that it does not authorize beach
restoration. We also proposed to change the Note, to make it clear that
the NWP authorizes discharges of dredged or fill material into waters
of the United States associated with the restoration of uplands.
One commenter requested that a \1/2\-acre limit be placed on
activities authorized under this NWP. One commenter said that
authorizing activities under this NWP within channel migration zones
can have more than minimal adverse environmental effects and impair
stream functions if those activities attempt to force a stream back
into previously occupied channels. This commenter said the NWP should
be conditioned to prohibit fills that would attempt to move the stream
channel to a previous course within the stream channel migration zone.
One commenter suggested modifying this NWP to limit it to reconfiguring
the affected area, and not authorize increases to the size of
structures or fills. Another commenter supported allowing dredging or
excavation in all waters of the United States under this NWP in
conjunction with the repair of uplands.
We do not believe that it is necessary to impose a \1/2\-acre limit
to this NWP, because it limits the repair of uplands to the contours,
or ordinary high water mark, that existed before the damage occurred.
This NWP also limits dredging to the minimum necessary to restore the
damaged uplands, and does not authorize significant alterations to pre-
event bottom contours of the waterbody. The minor fills authorized by
this NWP are unlikely to substantially alter stream migration. Because
this NWP is limited to restoring uplands to pre-event configurations,
it does not authorize more than minimal changes in the size of
structures or fills that may be constructed on or near uplands.
One commenter said that fills should be limited to the post-event
ordinary high water mark. Another commenter made a similar
recommendation, but suggested that an exception should be provided in
cases where there is a need to respond to immediate threats to a
primary structure or to infrastructure.
We do not agree that fills should be limited to the post-event
ordinary high water mark. The purpose of this NWP is to authorize
discharges of dredged or fill material into waters of the United States
for the repair of uplands that have been damaged by discrete events and
have minimal adverse effects on the aquatic environment. In some cases,
it may not be practicable to limit fills to where the new ordinary high
water mark is located, in cases where the discrete event changes the
location of the ordinary high water mark.
One commenter said that Tribes should be notified to avoid impacts
to Tribal treaty natural resources and cultural resources. Two
commenters supported the proposed changes to the Note. One commenter
stated that all bank stabilization authorized by this NWP must also
satisfy the terms and conditions of NWP 13.
Division engineers can regionally condition this NWP to identify
areas where there are Tribal treaty natural and cultural resources, so
that consultation can be conducted with those Tribes to ensure that
impacts to those resources are appropriately considered during review
of pre-construction notifications. General condition 17, Tribal rights,
prohibits the impairment of reserved tribal rights such as reserved
water rights and treaty fishing and hunting rights. We have retained
the proposed changes to the Note at the end of this NWP. This NWP
provides separate authorization for discharges of dredged or fill
material that are necessary to repair uplands that have been damaged by
discrete events, including the placement of fills necessary to
stabilize the bank. Unlike NWP 13, this NWP limits bank stabilization
so that it does not exceed the land contours that existed before the
damage occurred. Nationwide permit 13 may be used in conjunction with
this NWP to authorize bank stabilization for restored uplands in cases
where it is not practicable to limit bank stabilization to the pre-
event ordinary high water mark or contours.
The NWP is reissued as proposed.
NWP 46. Discharges in Ditches. We did not propose any changes to
this NWP. Most commenters asked why this permit was needed since upland
ditches are not subject to Clean Water Act jurisdiction, and any
discharges of dredged or fill material into these ditches are exempt by
statute under Section 404(f) of the Clean Water Act. Some commenters
noted that the Corps does not assert Clean Water Act jurisdiction over
many upland ditches and should not attempt to regulate these ditches by
reissuing this NWP.
This NWP authorizes discharges of dredged or fill material into a
specific category of ditches (i.e., those non-tidal ditches that meet
all four criteria in the first paragraph of the NWP), if those ditches
have been determined to be waters of the United States. Section 404(f)
of the Clean Water Act only exempts discharges of dredged or fill
material for the construction or maintenance of irrigation ditches, or
the maintenance of drainage ditches, while this NWP authorizes a
different set of activities which would require a Section 404 permit.
For example, this NWP authorizes discharges of dredged or fill material
that may completely fill the specific category of upland ditch
described in the NWP, if that ditch is determined to be a water of the
United States after either the Corps or EPA makes a jurisdictional
determination.
We recognize that many ditches constructed in uplands are not
waters of the United States, but there are some ditches constructed in
uplands that may be determined to be waters of the United States after
evaluating the specific characteristics of those ditches. The preamble
to the Corps November 13, 1986, final rule states the non-tidal
drainage and irrigation ditches
[[Page 10228]]
excavated on dry land are generally not considered to be waters of the
United States, but the Corps and EPA reserve the right on a case-by-
case basis to determine whether a particular waterbody is a water of
the United States (see 51 FR 41217). Joint guidance issued in December
2008 by EPA and the Corps provides additional clarification as to when
ditches are and are not considered to be waters of the United States
(see http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_Jurisdiction_Following_Rapanos120208.pdf; p. 12).
Some commenters said there are impacts to upland ditches that could
impair water quality downstream and that compensatory mitigation should
be required to minimize adverse effects caused by activities authorized
by this NWP. One commenter recommended that district engineers evaluate
impacts to natural heritage resources during their review of pre-
construction notifications.
For those activities authorized by this NWP, the district engineer
will review the pre-construction notification and determine whether the
activity results in only minimal adverse effects, including whether
compensatory mitigation is necessary to ensure that the authorized
activity results in minimal adverse effects on the aquatic environment,
including water quality. During the review of a pre-construction
notification, the district engineer may consult natural heritage
resource databases to more effectively evaluate the potential adverse
effects on the aquatic environment.
This NWP is reissued as proposed.
NWP 47. Pipeline Safety Program Designated Time Sensitive
Inspections and Repairs. We proposed to not reauthorize this NWP
because it was issued in 2007 in reliance on the development of the
Pipeline Repair and Environmental Guidance System (PREGS) by the
Pipeline and Hazardous Materials Safety Administration. Since PREGS was
not developed and deployed, and paragraph (h) of the NWP required
permittees to use PREGS to submit post-construction reports, no
activity could be authorized by NWP 47.
Two commenters asked why this NWP was not proposed to be reissued.
Three commenters agreed with allowing the NWP to expire and supported
the Corps position that designated time sensitive inspections and
repairs can be authorized under NWP 3, Maintenance and NWP 12, Utility
Line Activities. One commenter said that there should be an NWP to
authorize emergency repair activities to fix natural gas pipeline
leaks, pressure malfunctions, natural disaster damage, terrorist
threats, or other events that pose a danger to public safety. One
commenter suggested issuing a new NWP to authorize activities licensed
by the Federal Energy Regulatory Commission's blanket certificate
program.
Existing NWPs, such as NWPs 3 and 12, may be used to authorize
discharges of dredged or fill material or structures or work in
navigable waters of the United States associated with pipeline
inspections and repairs. Some of these activities do not require pre-
construction notification to qualify for NWP authorization. There are
other approaches available, such as emergency permitting procedures, to
allow emergency repair activities that do not qualify for general
permit authorization to proceed if there is ``an unacceptable hazard to
life, a significant loss of property, or an immediate, unforeseen, and
significant economic hardship'' (see 33 CFR 325.2(e)(4)). We do not
believe it is necessary to develop a new NWP to authorize activities
that are granted blanket certificates by the Federal Energy Regulatory
Commission. Many of these activities may be authorized by existing
NWPs, such as NWPs 3 and 12.
This NWP is not reissued.
NWP 48. Commercial Shellfish Aquaculture Activities. We proposed to
modify this NWP by removing the reporting requirement, which applied to
all activities that did not require pre-construction notification. We
also proposed to add the information previously required in that report
to the PCN information requirements. This information includes: A map
showing the boundaries of the project area, with latitude and longitude
coordinates for each corner of the project area; the name(s) of the
cultivated species; and whether canopy predator nets are being used. In
addition, we proposed to remove the pre-construction notification
requirement for changes in species cultivated, as long as those species
had been previously cultivated in the waterbody. We proposed to modify
this NWP to authorize activities associated with the expansion of
existing commercial shellfish aquaculture operations. We requested
comments on modifying this NWP or issuing a new NWP to authorize new
commercial shellfish aquaculture activities.
Many commenters said the NWP should be reissued, and recommended
many changes. Several commenters stated that this NWP should not be
reissued. Most commenters expressed support for removing the reporting
requirements for all activities that did not require pre-construction
notification, stating that the paperwork was unnecessary given the
current regulation of the industry by other entities, such as state and
local governments. One commenter said that the reporting requirements
should be maintained to ensure protection of resources. Other
commenters suggested that pre-construction notification should be
required for all activities. Several commenters said that the NWP
should only authorize maintenance activities. One commenter stated that
shellfish aquaculture methods are sufficiently different for the
species cultivated that issuing a single NWP to authorize these
activities is inappropriate. Another commenter said that all commercial
shellfish aquaculture activities should be authorized under one NWP.
Two commenters stated that the NWP should only authorize harvesting
that occurs by hand. One commenter stated that these activities may
impact tribal fishery access and fishing rights, and coordination with
the affected tribes should be required.
We have reissued this NWP and made several changes. Properly sited,
operated, and maintained commercial shellfish aquaculture activities
support populations of shellfish that provide important ecological
functions and services for coastal waters, and should be authorized by
a single NWP. We have removed the reporting requirements for this NWP
and substantially reduced the number of pre-construction notification
thresholds. Division engineers may regionally condition this NWP to
establish additional pre-construction notification thresholds if
necessary to ensure that this NWP authorizes only those activities that
have minimal adverse effects on the aquatic environment. We do not
agree that pre-construction notification should be required for all
activities authorized by this NWP, because these activities are
regulated by a number of other government agencies, especially at the
federal and state government levels. In addition, the discharges of
dredged or fill material into waters of the United States authorized by
this NWP will result in minimal adverse environmental effects to the
environmental criteria established under the Clean Water Act. The
shellfish populations supported by the activities authorized by this
NWP help support the objective of the Clean Water Act because they
improve water quality through the conversion of nutrients into biomass
(i.e., shellfish growth) and the
[[Page 10229]]
removal of suspended materials through filter feeding. Commercially
grown shellfish also provide some habitat functions for the aquatic
environment. Impacts to submerged aquatic vegetation will, in many
cases, be evaluated through the pre-construction notification review
process. For commercial shellfish aquaculture activities in new project
areas, adverse effects to submerged aquatic vegetation will be minimal
because of the \1/2\-acre limit. Impacts to coastal aquatic habitat and
species of concern in those habitats are more appropriately addressed
through consultation conducted under the Essential Fish Habitat
provisions of the Magnuson-Stevens Fishery Conservation and Management
Act and/or Section 7 of the Endangered Species Act.
We do not agree that the NWP should be limited to hand harvesting
activities. We have retained the pre-construction notification
requirement for activities involving dredge harvesting, tilling, or
harrowing in areas inhabited by submerged aquatic vegetation. General
condition 17, tribal rights, states that NWP activities may not impair
reserved tribal rights, including treaty fishing and hunting rights. In
addition, division engineers may regionally condition this NWP to
identify areas where Tribes must be notified of these activities and
government-to-government consultation conducted to avoid or minimize
impacts to tribal fishery access and fishing rights.
One commenter said that the restoration of indigenous species would
be prevented if cultivation was limited to only those species that were
previously commercially cultivated. Another commenter recommended
requiring pre-construction notification if there were a proposed change
in species cultivated that was not part of a state-approved list. Some
commenters suggested that pre-construction notification should not be
required for changes in harvesting methods. Another commenter said that
pre-construction notification should be required if the culture method
changed from bottom culture to floating or suspended culture to allow
district engineers to evaluate potential navigation issues. One
commenter indicated that the NWP should authorize demonstration
projects less than one acre in size and another said that non-
commercial shellfish aquaculture activities should be authorized, since
states, local governments, and non-governmental organizations engage in
recreational and commercial aquaculture. One commenter recommended
adding a provision that would require the permittee to implement
measures to prevent the spread of aquatic nuisance species, such as
prohibiting the transfer of materials used for commercial shellfish
aquaculture activities from one project site to another unless
appropriate measures have been taken to ensure that those materials are
free of aquatic nuisance species. This commenter said a note should be
added to the NWP, to prohibit the transfer of equipment used in
commercial shellfish aquaculture activities from one waterbody to
another waterbody, unless that equipment has been allowed to dry out
for a minimum of 90 days or treated in accordance with a regional
aquatic nuisance control plan, to prevent the introduction of aquatic
nuisance species into the other waterbody.
We have modified this NWP to provide more flexibility in the
species cultivated, specifically, to allow the cultivation of
nonindigenous species as long as those species have been previously
cultivated in the waterbody. We recognize that there has been
commercial production of nonindigenous species over many years in
certain waterbodies, and activities requiring Department of the Army
authorization associated with those commercial operations should be
authorized by this NWP. We have retained the prohibitions against
cultivating aquatic nuisance species defined by the Nonindigenous
Aquatic Nuisance Prevention and Control Act of 1990. We have also added
Note 2 to the NWP, to reduce the risk of introducing aquatic nuisance
species by requiring treatment of materials taken from one waterbody to
another in accordance with the applicable regional aquatic nuisance
species management plan. Division engineers may add regional conditions
to the NWP to make permittees aware of the regional aquatic nuisance
species management plan that may be applicable to NWP 48 activities.
We agree that pre-construction notification should not be required
for changes in harvesting methods because harvesting methods have
temporary impacts and result in minimal adverse effects. A possible
exception is dredge harvesting in areas inhabited by submerged aquatic
vegetation, which still requires pre-construction notification. We also
agree that pre-construction notification should be required if the
grower proposes to change from bottom culture to floating or suspended
culture in a project area, or if it is an activity in a new project
area that requires the installation and use of floating or suspended
gear, so that effects to navigation can be evaluated. This NWP
authorizes commercial shellfish aquaculture activities undertaken by
states, local governments, and non-governmental organizations.
Shellfish seeding activities to improve shellfish populations may be
authorized by NWP 27. Small recreational shellfish aquaculture
activities may be authorized by other applicable NWPs, such as NWP 4.
Other recreational shellfish aquaculture activities may be authorized
by regional general permits or individual permits. Restoration
aquaculture activities may be authorized by NWP 27.
One commenter stated that the structures and fill activities
authorized by the NWP were too broad and should be refined. This
commenter recommended prohibiting the long-term use of trays if
sediment is compacted and diversity is diminished. One commenter said
that structures and fill should be limited to shell spat only, while
another commenter stated that shell planting should be allowed on any
size parcel without pre-construction notification.
The structures and fills authorized by this NWP are limited to
those necessary to conduct commercial shellfish aquaculture activities.
We have retained the provision that states that the NWP does not
authorize 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. We have removed the pre-
construction notification threshold for commercial shellfish
aquaculture activities that are more than 100 acres in size, because we
do not believe it is necessary to require pre-construction notification
for existing operations with a valid lease, permit, or other
appropriate instrument that has been approved by the appropriate state
or local government agency, unless the activity triggers any of the
pre-construction notification thresholds.
One commenter requested changes to the definition of shell seeding,
citing concerns over the use of potentially environmentally damaging
materials. Another commenter supported the use of terms such as
``suitable substrate'' and ``appropriate materials'' due to the
decreasing availability of shell cultch and new research and
development regarding materials. One commenter said that use of the
term ``submerged aquatic vegetation'' allowed for the destruction of
eelgrass, because eelgrass is often not inundated with tidal waters.
One commenter asked whether traditional oyster culture practices were
of special concern.
The definition of the term ``shellfish seeding'' in the Definitions
section of
[[Page 10230]]
the NWP provides examples of appropriate materials that may be used for
shellfish seeding activities. Through the issuance of regional
conditions, division engineers can restrict or prohibit the use of
certain materials for shellfish seeding. In response to a pre-
construction notification, district engineers may add activity-specific
conditions to an NWP authorization to prohibit the use of certain
materials for shellfish seeding. Eelgrass is commonly considered to be
a species of submerged aquatic vegetation and we intend it to be
covered by the provisions regarding submerged aquatic vegetation,
regardless of whether it is fully submerged in all tidal conditions or
not.
Many commenters requested clarification as to when pre-construction
notification is required and what constitutes a project area for the
purposes of this NWP. Several commenters recommended that pre-
construction notifications should only be required once and not for
each subsequent reissuance of this NWP if the commercial shellfish
aquaculture operation has not changed. One commenter asked if the lease
holder is required to provide pre-construction notifications annually
if the lease covers an area greater than 100 acres. One commenter
inquired whether pre-construction notification is required when the
operator is only working on 30 acres of a 200-acre project site. One
commenter said that multiple pre-construction notifications should not
be required from a lease holder that has multiple 100-acre leases;
instead, one pre-construction notification should cover all those
leases.
We have reduced the number of pre-construction notification
thresholds in this NWP. The pre-construction notification thresholds in
this NWP focus on those activities that should be reviewed by district
engineers to: (1) Ensure that floating or suspended aquaculture
facilities do not cause more than minimal adverse effects on navigation
or, (2) ensure that both cultivating species that have not been
previously cultivated in the waterbody and dredge harvesting, tilling,
or harrowing in areas of submerged aquatic vegetation do not cause more
than minimal adverse effects on the aquatic environment.
To support our objective to be more consistent with state and local
agencies that regulate commercial shellfish aquaculture activities, we
have redefined project area so that it is based on leases or permits
issued by an appropriate state or local government agency that is
responsible for allocating subtidal or intertidal lands for commercial
shellfish production. The project area may also be based on rights to
conduct shellfish aquaculture that are established by treaty, such as
treaties executed between the United States Government and Indian
Tribes. Project area may also be identified through an easement, lease,
deed, or contract which establishes an enforceable property interest to
conduct aquaculture activities on subtidal or intertidal lands.
We have removed the pre-construction notification requirement for
relocating existing operations into portions of the project area not
previously used for aquaculture activities, since the permit or lease
issued by the state or local government agency has already authorized
that area for use in commercial shellfish aquaculture. There is no need
to address expansions in this NWP if the proposed expansions are within
the project area authorized by the state or local government lease or
other appropriate instrument. For example, pre-construction
notification is not required if an operator who is only working on 30
acres of a 200-acre project area decides to conduct operations beyond
those 30 acres within the 200 acre project area.
We have removed the pre-construction notification threshold for
project areas greater than 100 acres. Since we have limited the pre-
construction notification thresholds to focus on activities that may
adversely affect submerged aquatic vegetation and changes in operations
that may adversely affect navigation or involve species not previously
cultivated in the waterbody, most on-going activities will not require
pre-construction notification, thereby substantially decreasing the
paperwork burden on current commercial shellfish aquaculture operators.
The lease holder is not required to provide a pre-construction
notification annually no matter what the size of the project area as
long as the lease holder has a valid lease, permit, or other
appropriate instrument that has been approved by the appropriate state
or local government agency for the project area, and none of the pre-
construction notification thresholds are triggered. For example, pre-
construction notification is not required if the lease holder is only
working within an existing authorized 200-acre project area no matter
how much or little of that area is cultivated. However, if the lease
holder proposes to cultivate a species of oyster in the 200-acre
project area not currently present in the waterbody, pre-construction
notification would be required. The activities also do not require pre-
construction notification unless the activities involve dredge
harvesting, tilling, or harrowing in areas of submerged aquatic
vegetation. If the lease holder's operations within the 200-acre
project area change from one on-bottom technique to another on-bottom
technique, pre-construction notification is not required. However, if
the operations are proposed to change from an on-bottom culture method
to a floating or suspended culture method, pre-construction
notification is required. Lastly, if an operator obtains a lease for a
new project area and wishes to conduct any commercial shellfish
aquaculture activities in the new project area, pre-construction
notification is required.
One commenter said that requiring pre-construction notification for
aquaculture relocation and expansion is unnecessary if the area is
already leased but transferred to another owner. Another commenter
recommended that any NWP authorizations should still be valid when the
lease is transferred to another operator and use has not changed. One
commenter stated that pre-construction notification should not be
required for expansions into newly leased areas since the site
conditions are usually the same.
Pre-construction notification is not required for expansions of
commercial shellfish activities as long as the expansion occurs within
the project area specified by an permit, lease, or other instrument
issued by the appropriate state or local agency, and as long as none of
the pre-construction notification thresholds are triggered. This would
apply to an activity in a new location within the project area, or to
an activity that would utilize a larger acreage of the project area, as
long as none of those activities require pre-construction notification.
If an activity is proposed by an operator in a new project area,
however, pre-construction notification is required. An NWP verification
can be transferred to a new project proponent, if he or she has
obtained an interest in the subtidal or intertidal lands, provided
appropriate procedures are followed for the transfer of the NWP
verification (see general condition 29, transfer of nationwide permit
verifications).
One commenter asked whether or not an NWP verification can be
issued prior to a state issuing a lease. Another commenter said that
NWP 48 should be delegated to the states who issue leases to reduce
duplicative paperwork. One commenter stated that pre-construction
notification should not be required when a state already evaluates
impacts to submerged aquatic vegetation prior to
[[Page 10231]]
granting leases. Another commenter said that certain states do not
issue leases in areas with submerged aquatic vegetation, so it is not
necessary for the Corps to address that issue.
The district engineer may issue an NWP verification before the
state makes its decision on a lease application. It is necessary to
respond to a complete pre-construction notification within 45 days to
retain the authority to add activity-specific conditions, which would
ensure that the NWP activity results in minimal adverse effects on the
aquatic environment. Since there is not consistent regulation of
commercial shellfish aquaculture activities among all of the states, we
do not agree that certain Federal interests, such as navigation and
impacts to special aquatic sites, should be delegated to the states. In
evaluating a pre-construction notification triggered by potential
impacts to submerged aquatic vegetation, the district engineer would
consider any evaluation of such impacts that had been previously
conducted by the state if this is submitted with the PCN.
Many commenters expressed concerns regarding impacts to species
protected under the Endangered Species Act, designated critical
habitat, and essential fish habitat. One commenter asked if compliance
with the Endangered Species Act was required for both existing and new
activities. Another recommended that a detailed eelgrass, macroalgae,
and forage fish survey should be required for each pre-construction
notification. One commenter stated that NWP authorization should not be
granted in areas adjacent to forage fish or critical habitat.
Activities authorized by this NWP must comply with general
condition 18, endangered species. Any new or existing activity that
involves discharges of dredged or fill material or structures or work
in navigable waters of the United States that might affect listed
species or designated critical habitat require pre-construction
notification to the district engineer, so that Section 7 consultation
can be conducted. We do not agree that pre-construction notifications
should include surveys for eelgrass, microalgae, or forage fishes. The
district engineer may request additional information from the project
sponsor if needed to conduct Section 7 consultation. An activity may be
authorized in critical habitat if a section 7 biological opinion is
issued and impacts to critical habitat are authorized.
One commenter recommended that the Corps work closely with the
National Oceanic and Atmospheric Administration to streamline the
review and approval of aquaculture projects. Some commenters said that
the commercial shellfish aquaculture industry is not sufficiently
regulated at the local, state, or federal level. One commenter said
that enforceable conditions need to be added to NWP 48 authorizations
to protect the aquatic environment. One commenter recommended
implementing a regional ecosystem-based management approach.
We have worked closely with the National Oceanic and Atmospheric
Administration and other Federal agencies to develop this NWP, and we
disagree that there is not already sufficient government oversight of
these activities at the various levels of government. In response to a
pre-construction notification, the district engineer may add activity-
specific conditions to the NWP authorization to ensure that the
authorized activity results in minimal adverse effects on the aquatic
environment, individually and cumulatively. A regional ecosystem-based
management approach is more appropriately undertaken by Corps districts
and interested Federal, State, and local government agencies, not at
the national level.
Many commenters expressed concern regarding the environmental
impacts associated with expansions of commercial shellfish aquaculture
activities and for new activities. One commenter said that expansion
proposals should not be reviewed as restoration activities since non-
native species are a serious threat. Several commenters stated that the
environmental benefits do not offset the environmental impacts,
introduction of invasive species, impacts to native species such as
flatfish and other sandy bottom species, reduction of species
diversity, elimination of native animal and plant species, harassment
and destruction of migrating birds, and the introduction of plastics.
Other commenters expressed concern regarding impacts from geoduck
cultivation and harvesting on the environment as well as on wild
geoduck populations, and the cultivation and harvesting of other non-
native species. Two commenters stated that geoduck cultivation and
harvesting has only minimal impacts.
When properly sited, operated, and maintained, commercial shellfish
aquaculture activities generally result in minimal adverse effects on
the aquatic environment and in many cases provide environmental
benefits by improving water quality and wildlife habitat, and providing
nutrient cycling functions. These activities are subjected to an
extensive amount of regulation at the Federal and state government
levels, and often the local government level. The introduction of
invasive species can occur through many mechanisms, and the types of
species approved for commercial aquaculture activities are regulated.
This NWP does not authorize discharges of dredged or fill material or
structures or work in navigable waters of the United States associated
with the cultivation of nonindigenous species that have not been
previously cultivated in the waterbody or the cultivation of aquatic
nuisance species as defined in the Nonindigenous Aquatic Nuisance
Prevention and Control Act of 1990. Furthermore, division engineers may
add regional conditions to the NWP to require permittees to use
specific practices that will prevent the spread of aquatic nuisance
species. Such measures may vary, depending on the species of concern
and which techniques would be the most effective means to prevent the
spread of such species. Adverse effects that may result from geoduck
cultivation are more appropriately addressed by Corps districts, since
this activity is limited in geographic scope. Division engineers may
regionally condition this NWP to restrict or prohibit its use to
authorize discharges of dredged or fill material into waters of the
United States or structures or work in navigable waters of the United
States associated with geoduck production.
Several commenters stated that the expansion of commercial
shellfish aquaculture activities will result in more than minimal
cumulative adverse effects and should not be authorized by NWP. One
commenter said that all activities authorized by this NWP should
require reporting to assess cumulative effects. Another commenter
suggested that cumulative effects on water quality should be evaluated
for water bodies with multiple aquaculture facilities.
As stated above, commercial shellfish aquaculture activities
provide habitat, water quality, and nutrient cycling functions and when
properly sited, operated, and maintained are unlikely to result in more
than minimal cumulative adverse effects on the aquatic environment.
Division engineers may restrict or prohibit use of this NWP in
geographic regions or specific waterbodies where more than minimal
cumulative adverse effects may occur.
One commenter stated that shellfish aquaculture activities have
economic impacts that were not sufficiently addressed in the draft
decision documents. For example, county and
[[Page 10232]]
state health agencies are required to regulate water quality, which
costs taxpayer money. This commenter said that changes to aesthetics
associated with expansion of these activities, such as noise, odor, and
viewshed impacts should also be considered. Impacts to recreational
uses of the affected waterbodies could occur if expansions greater than
100 acres in size are authorized. This commenter also said that new and
expanded operations should not be proposed in national parks or
historic monuments, but existing operations should be allowed to
continue. The commenter also stated that any projects in river delta
regions should be carefully evaluated due to the sensitive nature of
these brackish environments.
The draft decision documents briefly discuss economics as one of
the public interest review factors that are considered before the Corps
issues a permit, including a general permit. Shellfish aquaculture
activities, in general, help improve water quality because many of the
commercially cultivated species are filter feeders that remove
nutrients and suspended materials from the water column. By removing
nutrients, eutrophication and similar water quality problems are
lessened. Water quality benefits provided by commercially grown
shellfish help reduce costs of remediating local water quality
problems. Commercial shellfish aquaculture activities have minimal
adverse effects to aesthetics, and are likely to result in little
change in local baseline levels of noise, odor, or views when compared
to other waterfront uses in coastal residential areas, such as private
and commercial boats, as well as the piers, wharves, marinas, and
anchorage or mooring areas where those vessels are kept. Coastal areas
are used by a wide variety of people. Effects on recreational uses of
the waterbody should also be considered during the review of specific
commercial shellfish aquaculture activities. Division engineers may
regionally condition this NWP to restrict or prohibit its use to
authorize new project areas and/or new activities in existing project
areas in national parks or in the vicinity of historic monuments. The
protection of waters near river deltas or other categories of waters is
more appropriately accomplished through regional conditions imposed by
division engineers.
One commenter stated that because commercial shellfish aquaculture
may be limited by farm runoff, increasing production could require
farmland to cease in operation. Another commenter stated that shellfish
farming is a good gauge of water quality in an area since poor water
quality necessitates closure of shellfish farms. In contrast, another
commenter said the potential for aquaculture operations to harvest
continuously as farm size increased would result in permanently
suspended particulates and increased turbidity which would damage
ecosystems.
Changes in farming operations that may be related to commercial
shellfish aquaculture activities in nearby waters is outside of the
Corps regulatory authority. Such issues are more appropriately
addressed by state or local governments, who have the primary
responsibility for land use decisions. We recognize that commercial
shellfish aquaculture can help improve water quality. Harvesting
operations may increase turbidity, but we believe such impacts are
temporary and minor.
We received many comments in response to our proposal to consider
issuing a new NWP or modifying NWP 48 to authorize new commercial
shellfish aquaculture activities. Many commenters supported modifying
NWP 48 to authorize new activities, and suggested terms and conditions.
One commenter recommended limiting new activities to ten acres or less.
One commenter stated that there should be no limits on new activities
because shellfish aquaculture has only minimal, short-term adverse
environmental impacts, and the shellfish themselves provide valuable
ecological services. Two commenters stated that all new shellfish
aquaculture activities except floating culture should be authorized
under the NWP, because floating facilities have potential to impact
navigation. One commenter said limitations on new activities should be
imposed on NWP 48 and reconsidered when the proposal to reissue the
NWPs is developed in 2016. Other commenters said that new activities
should not be authorized by NWP because of their environmental impacts.
Another commenter stated that new activities should not be authorized
by NWP unless bottom culture methods are used (except for grow-out
bags), harvesting is done by hand, and only native species are
cultivated. One commenter stated that baseline habitat assessments
should be provided and no operations should occur within 180 feet of
marine vegetation, eelgrass, or sand dollar beds.
We are modifying NWP 48 to authorize commercial shellfish
aquaculture activities in new project areas, provided the project
proponent obtains a valid authorization (e.g., a lease or permit from
the appropriate state or local government agency responsible for
granting such leases or permits) and the activity will not directly
affect more than \1/2\-acre of submerged aquatic vegetation beds. Pre-
construction notification is required for all commercial shellfish
aquaculture activities in new project areas. Pre-construction
notification is also required for activities in a project area if they
involve dredge harvesting, tilling, or harrowing in areas inhabited by
submerged aquatic vegetation or if the activities involve the change
from bottom culture to floating or suspended culture in order to assess
potential impacts to navigation. In addition, general condition 14,
proper maintenance, requires the permittee to properly maintain any
authorized structure or fill. Therefore, any authorized commercial
shellfish aquaculture activity and its associated equipment shall be
properly maintained so as to not pose a hazard to navigation. The pre-
construction notification thresholds will provide an opportunity for
district engineers to evaluate the potential adverse effects to
navigation and vegetated shallows, conservation, and other applicable
public interest review factors, and ensure that those adverse effects
are minimal. We agree that commercial shellfish aquaculture activities
can provide important functions and services to the aquatic environment
and should be authorized by NWP, with appropriate notification
thresholds and limits. Division engineers may regionally condition this
NWP to restrict or prohibit its use in specific waters or geographic
areas, if there are concerns that these activities may have more than
minimal adverse effects on certain species or specific types of aquatic
resources.
This NWP is reissued with the modifications discussed above.
NWP 49. Coal Remining Activities. We proposed to clarify how the 40
percent of newly mined area is determined. We also proposed to modify
the pre-construction notification provision to require the prospective
permittee to submit documentation describing how the overall mine plan
will result in a net increase in aquatic resource functions.
Several commenters supported the reissuance of NWP 49 and said no
restrictions should be imposed because remining permits are one of the
most significant tools to alleviate the environmental effects of past
mining activities. Many commenters said this NWP should not be
reissued. Some of these commenters stated that these activities result
in more than minimal cumulative adverse effects. Many commenters
objected to the lack of
[[Page 10233]]
limits for filling stream channels and said this NWP should not
authorize the construction of valley fills or refuse fills. Other
commenters stated that the functional increase associated with re-
mining will still be insufficient to offset adverse effects of filling
stream beds and that stream mitigation will not effectively replace
lost stream functions.
We believe authorizing remining of an unreclaimed site and
requiring actions to restore unreclaimed areas is one of the most
effective ways to reverse degraded water quality in a watershed.
Therefore, we have not imposed any new limits or restrictions on this
NWP. All activities authorized by this NWP must result in net increases
in aquatic resource functions, which will help manage cumulative
effects on a watershed basis. Cumulative effects assessments have
revealed the reduction in acid mine drainage and/or sedimentation in
downstream segments of stream channels has resulted in functional
improvements in many watersheds. The states of Ohio, Pennsylvania,
Virginia, and West Virginia frequently use remining activities to
reduce acid mine drainage and sedimentation and have data to
demonstrate these improvements.
We do not believe this permit should have linear foot or acreage
limits, since this NWP authorizes discharges of dredged or fill
material into waters of the United States to reclaim previously mined
sites that were unreclaimed, abandoned, forfeited, and typically
exhibit poor water quality and present safety hazards. These
unreclaimed mines may have unreclaimed highwalls, unvegetated mine
spoil, disconnected stream segments, and/or pit impoundments. We, as
well as other state and federal agencies, recognize that remining and
reclaiming these areas is one of the most successful means for
improving water quality, because these activities reduce sedimentation
and acid mine drainage. Due to advances in mining technology and
equipment, it is now economically viable to remove coal from these
unreclaimed and abandoned mine sites. These sites can be combined with
adjacent unmined areas to develop a project that is economically
viable. In many cases the net result of combining remining of a
previously mined site with new surface coal mining activities in
adjacent areas is to facilitate reclamation of the older mine site and
reduce acid mine drainage and sediment from the older mine site to
downstream stream segments. Furthermore, this NWP provides an incentive
to remine degraded areas, similar to the 1987 Rahall Amendments to the
Clean Water Act, which enables mine operators to apply for the U.S.
Environmental Protection Agency's modified effluent limits developed
specifically for remining projects.
Project proponents who want to use this NWP must submit pre-
construction notifications. The pre-construction notification describes
how the overall mining plan will result in a net increase in aquatic
resource functions. If there is an appropriate functional assessment
protocol available for the types of aquatic resources in that
geographic area, project proponents are encouraged to use that
functional assessment protocol to demonstrate how the activity will
result in a net increase in aquatic resource functions. The description
of the proposed project required by paragraph (b)(3) of general
condition 31 should describe the restoration that will take place on
the project site. District engineers may add activity-specific
conditions to this NWP to require more detailed restoration plans prior
to discharging dredged or fill material into waters of the United
States, as well as monitoring plans that will be used to assess whether
the remining and associated reclamation activities are resulting in net
increases in aquatic resource functions. Supplemental compensatory
mitigation may be required in some instances, such as the
implementation of mitigation projects near the project site, to remove
or reduce causes of aquatic resource impairment and ensure that the
overall activity not only results in minimal individual and cumulative
adverse effects on the aquatic environment but in a net increase in
aquatic resource functions, as required by this NWP.
Several commenters indicated the general public should have the
right to comment on the proposal before the district engineer issues
the NWP verification. One commenter said all activities associated with
remining should require individual permits and another commenter
objected to combining unmined lands required for restoration with
previously mined lands because that would categorize unmined land as
unreclaimed land, and result in additional adverse environmental
effects. One commenter stated that slurry impoundments should not be
authorized by this NWP.
We believe these activities are appropriate for general permit
authorization and should not require a public notice and comment
process. District engineers may assert discretionary authority and
require an individual permit for proposed activities if they believe
those activities will result in more than minimal adverse effects on
the aquatic environment. It is appropriate to authorize discharges of
dredged or fill material into waters of the United States for some new
mining activities, to provide an incentive to restore unreclaimed mine
lands, and provide net increases in aquatic resource functions. Impacts
to the newly mined area would not be categorized as remining. Adverse
effects to waters of the United States associated with the new mining
would be subject to the general condition 23, mitigation, and the
district engineer may add conditions to the NWP authorization to
require mitigation located near the project site or out-of-kind
mitigation to compensate for losses of aquatic resource functions.
Typical surface coal mining projects, including remining, do not
include slurry impoundments, as these impoundments are typically
associated with the wastewater resulting from coal processing plants.
This NWP does not authorize the construction of coal processing plants.
Many commenters said the Corps is making the review process
associated with NWP 49 more onerous, which will decrease the utility of
the NWP, and should focus on the environmental benefits that can be
realized from this nationwide permit.
The proposed changes to this NWP, which we are adopting, do not
make it more difficult to use NWP 49. The requirement to provide
information with the pre-construction notification to explain how the
overall activity will result in net increases in aquatic resource
functions is necessary to ensure compliance with the terms and
conditions of the NWP. Clarification of how to apply the 40 percent
provision to determine how much new area could be mined will provide
consistency in implementation. For example, a site may be proposed to
be remined under this NWP. If 30 acres of the site has been previously
mined and is proposed to be remined, and 30 acres of the site is
unmined and is necessary to make it economically feasible to reclaim
the remined area, then 40% of the combined acreage of the remined and
reclaimed areas, or 40% of 60 acres which equals 24 acres, can be newly
mined. In another example, if you have a 1,000-acre site, and 600 acres
are affected by previously unreclaimed mining activities and 200 acres
are needed to reclaim the 600 acres, then 40% of 800 acres (the
summation of the previously unreclaimed mining activities site and the
site needed to reclaim the previously mined site), or 320 acres may be
newly mined. As there are only 200 acres remaining at the 1,000-acre
site, those 200 acres may be
[[Page 10234]]
authorized under NWP 49 for newly mined activities.
One commenter said they did not understand the rationale for
establishing the threshold for newly mined areas at 40 percent, if
removing the small amount of remaining coal reserves will be far more
attractive to coal mine operators if the percentage was increased to
allow mining on larger areas of unmined lands. One commenter said the
40 percent limitation becomes an obstacle when the remaining coal seam
is deep within the hillside and large amounts of overburden require
removal. This commenter suggested increasing the limit for newly mined
areas to 50 or 60 percent to encourage more restoration of unreclaimed
areas. The commenter recommended adding a provision allowing district
engineers to waive the 40 percent threshold in certain situations, such
as when the operator receives an approved pollution abatement plan with
best management practices, the remining activity is located in a
completed Acid Mine Drainage Abatement Treatment watershed area, and
watersheds with established total daily maximum loads. Several
commenters objected to the provision stating that the Corps would
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, stating that it creates
duplicative and potentially conflicting layers of regulation to an
already highly regulated industry.
The 40 percent limit was established when NWP 49 was first issued
in 2007, and was based on the recognition that some new coal mining may
have to be conducted to provide incentives to remine and reclaim
previously mined lands. The 40 percent limit is intended to facilitate
compliance with the minimal adverse effects requirement for the NWPs.
We do not agree that it would be appropriate to add a provision
allowing district engineers to waive the 40 percent limit. Remining and
reclamation activities involving discharges of dredged or fill material
into waters of the United States that require larger proportions of
newly mined areas may be authorized by individual permits. The
expertise provided by the agencies responsible for implementing SMCRA
is necessary to help the Corps make its determination of compliance
with the terms and conditions of this NWP.
One commenter stated this NWP should look holistically at overall
water and site improvements, improvement in the safety of the area by
the elimination of pits and highwalls, and reclamation of sites without
the use of public funds.
We have focused this NWP on authorizing those activities that
provide net increases in aquatic resource functions. The consideration
of overall site improvements, increased safety, and the lack of use of
public funds is more appropriately addressed by other agencies or
programs.
This NWP is reissued as proposed.
NWP 50. Underground Coal Mining Activities. We proposed to place a
\1/2\-acre limit on this NWP, as well as a 300-linear foot limit for
losses of stream bed. We also proposed a provision that allows district
engineers to waive the 300 linear foot limit for losses of intermittent
or ephemeral stream bed by making a written determination concluding
that the discharge of dredged or fill material will result in minimal
adverse effects.
Several commenters objected to the reissuance of this NWP, stating
that it authorizes activities with more than minimal individual and
cumulative adverse effects on the aquatic environment. Several
commenters stated that activities authorized by this NWP will result in
the loss of stream functions and adversely impact water quality
downstream of the mine site. Several commenters said this NWP does not
comply with the Section 404(b)(1) Guidelines and that the cumulative
impacts analysis is too general and fails to consider past actions.
We have imposed a \1/2\-acre limit on this NWP, as well as a 300
linear foot limit for the loss of stream bed. Pre-construction
notification is required for all activities authorized by this NWP, and
the permittee may not begin work in waters of the United States until
an NWP verification is issued by the district engineer. These
requirements, as well as the ability of district engineers to exercise
discretionary authority and modify the NWP authorization by imposing
activity-specific conditions, will help ensure that the NWP authorizes
only those activities with minimal individual and cumulative adverse
effects on the aquatic environment. Division engineers may regionally
condition this NWP to restrict or prohibit its use in specific
geographic regions, waters, or watersheds if the use of this NWP would
authorize activities with more than minimal individual and cumulative
adverse effects. When reviewing pre-construction notifications,
district engineers will also evaluate whether the proposed activity
will cause more than minimal direct and indirect adverse effects to
water quality downstream of the mine site. The issuance of this NWP
complies with the 404(b)(1) Guidelines, and we have complied with the
requirements at 40 CFR 230.7. The cumulative effects analysis provided
in the decision document in accordance with the National Environmental
Policy Act considers the effects of past actions, to the extent that
they have continuing effects on the aquatic environment. Under the
404(b)(1) Guidelines, the cumulative effects analysis involves
prediction of the number of discharges likely to be regulated by a
general permit until its expiration (see 40 CFR 230.7(b)(3)). That
regulation, as well as 40 CFR 230.11(g), does not state that the
effects of past actions have to be considered for the purposes of the
404(b)(1) Guidelines analysis, although, as stated above, we have
considered such effects in connection with our NEPA analysis.
Several commenters stated that NWP 50 should not have any acreage
and/or linear foot limitations as these limits would essentially render
the permit unusable for underground mining operations.
We do not agree that the \1/2\-acre limit and the 300 linear foot
limit for stream bed losses make this NWP unusable. This NWP authorizes
discharges of dredged or fill material into waters of the United States
for underground coal mining activities, provided those activities
result in minimal adverse effects on the aquatic environment. Since
these coal mining activities occur underground, losses of waters of the
United States are usually small in size because they are limited to
discharges of dredged or fill material in waters of the United States
to construct infrastructure and impoundments to support those mining
activities. Underground coal mining activities that result in the loss
of greater than \1/2\-acre of waters of the United States, or more than
300 linear feet of perennial stream bed, may be authorized by
individual permits or, if available, regional general permits.
One commenter stated that districts have incorrectly classified
perennial streams and that impacts to special aquatic sites (e.g.,
riffle and pool complexes) have not been properly considered. Another
commenter said that Clean Water Act jurisdiction does not extend to
ephemeral and intermittent streams. Several commenters indicated stream
mitigation measures are not effective and the Corps has failed to
provide a rational explanation as to how mitigation will attenuate
cumulative effects.
Classifying a stream as perennial, intermittent, or ephemeral is
done by district engineers by evaluating available information on
stream flow,
[[Page 10235]]
including information that may be submitted by a project proponent in
support of a pre-construction notification. A site visit may also be
conducted to identify perennial, intermittent, or ephemeral stream
segments. Impacts to special aquatic sites such as riffle and pool
complexes will be considered when reviewing a pre-construction
notification, and discretionary authority will be asserted if the
district engineer determines that the adverse effects on the aquatic
environment are more than minimal. Both intermittent and ephemeral
streams are subject to Clean Water Act jurisdiction if they are
determined by district engineers to be waters of the United States
after applying the appropriate regulations and guidance. Stream
rehabilitation and enhancement activities have been shown to improve
the ecological functions provided by those aquatic ecosystems. Stream
compensatory mitigation projects must comply with the applicable
requirements provided in general condition 23, mitigation, and the
compensatory mitigation regulations at 33 CFR 320.4(r) and 33 CFR part
332. District engineers will review and approve mitigation plans, and
will require alternative or additional compensatory mitigation if they
determine the proposed compensatory mitigation will not be sufficient
to successfully offset the losses of aquatic resources caused by the
permitted activity. Compensatory mitigation projects must be
implemented in accordance with their approved mitigation plans.
District engineers will also require monitoring of these compensatory
mitigation projects, and require remediation and adaptive management if
those mitigation projects are not providing the intended aquatic
resource functions. If a district engineer determines that a
compensatory mitigation project is not ecologically successful and
fails to fulfill its objectives, district engineers may require
alternative compensatory mitigation to comply with the mitigation
requirements established through conditions added to the NWP
authorization.
Several commenters indicated the activities regulated by this NWP
are also heavily regulated by SMCRA, the Federal Mine Safety and Health
Act (MSHA), and the state mining and water resource programs;
therefore, no limits should be imposed on the permit. One commenter
said the limits and the waiver process is highly subjective and results
in uncertainty in the Regulatory Program. One commenter stated that
limitations imposed on this NWP could potentially require applicants to
seek individual permits for all underground mining actions, which may
result in a requirement to prepare an environmental impact statement.
This commenter said that there should be a transition period without
acreage or linear foot limits so that underground coal mining
activities could continue to be authorized by this NWP until an
individual permit can be obtained. One commenter said that reissuing
NWP 50 with the \1/2\-acre and 300 linear foot limits would result in
significant job losses for their company, which consists of Native
Americans who comprise 62 percent of their workforce. One commenter
said that the new limits on this NWP would also increase the Corps
workload.
This NWP provides authorization required under Section 404 of the
Clean Water Act, for discharges of dredged or fill material into waters
of the United States. The acreage and linear foot limits of this NWP
are necessary to ensure that authorized activities result in minimal
adverse effects on the aquatic environment. Compliance with other laws
may be required for surface coal mining activities, but those decisions
are made by the agencies responsible for administering those laws.
District engineers will consider the criteria in paragraph (1) of
section D, ``District Engineer's Decision'' and other appropriate
criteria, when making a minimal effects determination for a proposed
NWP activity. Activities that result in the loss of greater than \1/2\-
acre of waters of the United States require individual permits, unless
those activities qualify for applicable regional general permits. If an
individual permit is required, district engineers will determine
whether an environmental impact statement is necessary to comply with
the requirements of the National Environmental Policy Act. We do not
agree that there should be a transition period for these activities,
because the acreage and linear foot limits are necessary to comply with
Section 404(e) of the Clean Water Act, and past use of this NWP
indicates that the average loss of waters of the United States was 0.21
acre per NWP 50 activity. While there might be an increase in the
number of individual permits, we do not believe it will be a large
workload increase. As with all NWPs, an activity that was authorized
under the 2007 NWPs has until March 18, 2013, to be completed under
this authorization.
One state agency indicated implementation of the limits would
result in increased workload for their staff and requested that funding
be provided to their office to mitigate this increase. One commenter
stated that sites which contain reclaimed and abandoned mines
associated with deep mining operations with portals and/or bat habitat
should be assessed for bat use.
Any workload increase due to the addition of the \1/2\-acre and 300
linear foot limits would be borne primarily by the Corps districts. It
does not directly impose additional workload on state agencies. The
SMCRA permits required for all mining activities must go through
advanced coordination with the U.S. Fish and Wildlife Service regarding
endangered bat species and with the State natural resources agencies
regarding state listed bat species. Effects to wildlife, including
bats, that are not federally-listed as endangered or threatened, or
state-listed bat species, will also be addressed through the SMCRA
permit process. For federally-listed bat species, activities authorized
by this NWP must also comply with general condition 18, endangered
species.
This NWP is reissued as proposed.
NWP 51. Land-Based Renewable Energy Generation Facilities. This NWP
was proposed as NWP A to authorize the discharges of dredged or fill
material into non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters, for the construction,
expansion, or modification of land-based renewable energy production
facilities. Examples include infrastructure to generate solar
(concentrating solar power and photovoltaic), biomass, wind or
geothermal energy and their collection systems. Attendant features may
include, but are not limited to roads, parking lots, utility lines, and
stormwater management facilities. We proposed a \1/2\-acre limit for
this NWP, including the loss of no more than 300 linear feet of stream
bed, unless for intermittent and ephemeral stream beds the district
engineer waives this 300 linear foot limit by making a written
determination concluding that the discharge will result in minimal
adverse effects.
Several commenters objected to the issuance of this NWP, stating
that the Corps had failed to explain why the direct and indirect
impacts resulting from the land-based renewable energy projects
authorized by this NWP would be minimal, including the impacts caused
by construction and operation of these facilities. These commenters
said that individual permits should be required for these facilities.
One of these commenters said that biomass facilities will significantly
add to greenhouse gas
[[Page 10236]]
emissions and expressed the belief that biomass facilities will lead to
increased land-clearing for harvest, planting and re-planting of trees.
Several commenters stated that wind turbines will cause direct
mortality on birds and bats and adversely affect critical avian and bat
habitat. Two commenters stated that wind-generated energy facilities
should incorporate guidelines developed by the U.S. Fish and Wildlife
Service to minimize impacts to avian and bat species. One commenter
stated that land-based wind and solar renewable energy facilities are
not water dependent and should always require individual permits to
allow for a thorough alternatives analysis for site selection. Several
commenters stated that the activities authorized by this NWP are not
similar in nature, since they involve various types of renewable energy
facilities that have different adverse environmental effects.
This NWP authorizes discharges of dredged or fill material into
waters of the United States for the construction, expansion, or
modification of land-based renewable energy facilities. Unless the
operation of these facilities involves discharges of dredged or fill
material into waters of the United States, the Corps does not
authorize, or have any Federal control or responsibility over, their
operation. We believe that the construction, expansion, or modification
of these facilities has minimal adverse effects on the aquatic
environment, individually and cumulatively. Division engineers can
regionally condition this NWP to restrict or prohibit its use in waters
of the United States, where the discharges of dredged or fill material
are likely to result in more than minimal adverse effects on the
aquatic environment. While there may be emissions of greenhouse gases
during construction activities involving discharges of dredged or fill
material into waters of the United States, those direct emissions will
generally not exceed de minimus levels of a criteria pollutant or its
precursors and are exempted by 40 CFR 93.153. Emissions of greenhouse
gases that occur from the operation of a land-based renewable energy
generation facility, as well as emissions that occur when harvesting
plant material for biomass energy production and operating the energy
generation facility, are outside the Corps scope of analysis under the
National Environmental Policy Act, because the Corps does not have the
legal authority to control such emissions. The 404(b)(1) Guidelines do
not include any requirements to assess effects of proposed discharges
of dredged or fill material into waters of the United States on
greenhouse gas emissions. Land clearing that may be conducted for the
harvesting, planting, and replanting of trees that provide fuel for
biomass energy facilities is not authorized by this NWP, and if such
activities involve discharges of dredged or fill material into waters
of the United States, a separate Department of the Army permit is
required.
If the construction, expansion, or modification of a land-based
renewable energy facility involves discharges of dredged or fill
material into waters of the United States, and that activity may affect
an endangered or threatened species, or is located in designated
critical habitat, Endangered Species Act Section 7 consultation is
required, and the activity cannot proceed until section 7 consultation
is completed. We have added general condition 19, migratory birds and
bald and golden eagles, to clarify that if an activity regulated by the
Corps will result in the ``take'' of a migratory bird or a Bald or
Golden Eagle, and a ``take'' permit is required from the U.S. Fish and
Wildlife Service, it is the responsibility of the permittee to apply
for, and obtain, the appropriate ``take'' permits from the U.S. Fish
and Wildlife Service. The draft Land-based Wind Turbine Guidelines
developed by the U.S. Fish and Wildlife Service are voluntary
guidelines that project proponents may incorporate into their land-
based wind energy projects. The Corps does not have the authority to
condition this NWP to incorporate the recommendations provided in those
guidelines. Water dependency is not a requirement for authorization by
general permit, including nationwide permits. The water dependency test
in the 404(b)(1) Guidelines guides the alternatives analysis for
activities that require individual permits under Section 404 of the
Clean Water Act.
The activities authorized by this NWP (i.e., discharges of dredged
or fill material into waters of the United States for the construction,
expansion, or modification of land-based renewable energy facilities)
are similar in nature. The Corps interprets the ``similar in nature''
requirement in Section 404(e) of the Clean Water Act broadly, to cover
general categories of activities. The discharges of dredged or fill
material authorized by this NWP will have similar effects on the
aquatic environment, by replacing waters of the United States with dry
land, or altering their characteristics, when renewable energy
facilities are constructed, modified, or expanded.
Two commenters expressed concern that if NWP A is issued, all land-
based renewable energy facilities will require pre-construction
notification because they could only be authorized by this NWP. Several
commenters stated that NWP A should not be issued because all types of
land-based renewable energy facilities can be authorized by existing
NWPs, such as NWPs 12, 14, 18, 25, and 39, and it is not necessary to
issue a new NWP that requires pre-construction notification for all
activities. They also said that the issuance of NWP A would contradict
the Corps stated goals of reducing administrative burdens on the
regulated public, and utilizing its resources to focus on those
projects that could be more environmentally damaging. One commenter
stated that the pre-construction notification requirement would cause
an unnecessary burden on project proponents, especially the requirement
to provide a delineation of waters of the United States in the project
area.
We are retaining the requirement that all activities authorized by
this NWP require pre-construction notification, so that district
engineers can evaluate these activities and add activity-specific
conditions, if necessary, to ensure that they result in minimal
individual and cumulative adverse effects on the aquatic environment.
Other NWPs may be used to authorize discharges of dredged or fill
material into waters of the United States for activities that may be
associated with land-based renewable energy facilities. We do not
intend issuance of this NWP to restrict currently available options for
use of other NWPs to authorize any such discharges. For example, NWP 12
may be used to authorize discharges of dredged or fill material
associated with the construction, maintenance, repair, or removal of
utility lines for land-based renewable energy facilities. Likewise, NWP
14 may be used to authorize road crossings in waters of the United
States within a land-based renewable energy facility. Project
proponents may specify which NWP they wish to use to provide the
requisite 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. If the proposed activity qualifies for authorization under that
particular NWP, the district engineer will issue a verification letter.
This NWP fulfills the objectives of the NWP program, since many land-
based renewable energy projects require discharges of dredge or fill
material into waters of the United States that would not qualify for
NWPs 12 or 14, or other NWPs that do not require pre-construction
notification.
One commenter suggested changing the pre-construction notification
[[Page 10237]]
threshold to \1/10\-acre, so that compensatory mitigation would not be
required for activities resulting in the loss of less than \1/10\-acre
of waters of the United States. Another commenter said that requiring
pre-construction notification for losses of less than \1/10\-acre
removes incentives to minimize losses of waters of the United States to
less than \1/10\-acre. Two commenters stated that increasing the pre-
construction notification threshold to \1/10\-acre would be more
consistent with Executive Order 13212, Actions To Expedite Energy-
Related Projects.
We do not agree that the pre-construction notification threshold
should be increased to \1/10\-acre to match the pre-construction
notification thresholds for NWP 12 or 14, since utility lines or road
crossings may be only partial components of a land-based renewable
energy generation facility. It should be noted that NWP 14 requires
pre-construction notification for any discharge into a special aquatic
site, including wetlands, which means that many NWP 14 activities that
result in a loss of less than \1/10\-acre require pre-construction
notification. Nationwide permit 12 should be used when the only
activities that require Department of the Army authorization are
discharges of dredged or fill material to construct, maintain, repair,
or remove utility lines. Therefore, in Note 1 we state that NWP 12 is
to be used to authorize those utility line activities, as long as those
activities comply with the terms and conditions of NWP 12, including
applicable regional conditions and any case-specific conditions imposed
by the district engineer. This NWP authorizes building pads for the
renewable energy generation devices and attendant features associated
with those devices, such as parking lots and stormwater management
facilities. If more than one NWP is used to authorize a land-based
renewable energy generation facility, the activity must comply with
general condition 28, use of multiple nationwide permits, which states
that the loss of waters of the United States cannot exceed the acreage
limit of the NWP with the highest specified acreage limit. Compensatory
mitigation is at the discretion of the district engineer, and will be
required when necessary to ensure that the authorized activity results
in minimal individual and cumulative adverse effects on the aquatic
environment. Paragraph (a) of general condition 23, mitigation,
requires permittees to avoid both temporary and permanent adverse
effects to waters of the United States on the project site. The
issuance of this NWP supports the objective of Executive Order 13212,
by providing NWP authorization for some activities that would otherwise
require individual permits because they do not qualify for any of the
existing NWPs.
Two commenters agreed that NWP A is needed but said that many land-
based renewable energy projects would not qualify because the losses of
waters of the United States frequently exceed the acreage or linear
foot limits. One commenter suggested increasing the acreage limit to
one acre and the linear foot limit to 500 linear feet of stream bed,
and allow the district engineer to waive the 500 linear foot limit if
he or she determines that the activity will result in minimal adverse
environmental effects. One commenter stated that NWP A should not allow
waivers for stream bed losses in excess of 300 linear feet.
We believe that there will be a sufficient number of land-based
renewable energy generation facilities authorized by this NWP to
warrant its issuance. As with all general permits, this NWP will also
provide an incentive for project proponents to reduce losses of waters
of the United States to qualify for NWP authorization, instead of
having to apply for individual permit authorization, if there are no
regional general permits available to authorize these activities. The
\1/2\-acre and 300 linear foot limits are necessary to ensure that this
NWP authorizes only those activities that have minimal individual and
cumulative adverse effects on the aquatic environment, and are
consistent with the limits in many other NWPs. Division engineers can
regionally condition this NWP to reduce the acreage limit or linear
foot limits, or revoke this NWP in specific waters or geographic areas
where the adverse effects on the aquatic environment may be more than
minimal. In response to a pre-construction notification, the district
engineer may add activity-specific conditions to the NWP authorization
to impose requirements to satisfy the minimal adverse environmental
effect requirement. The 300 linear foot limit for the loss of
intermittent and ephemeral stream bed can only be waived when the
district engineer makes a written determination that the loss of that
stream bed will result in minimal adverse environmental effects, after
evaluating the site-specific characteristics of the project.
Several commenters said that all pre-construction notifications
should be coordinated with other Federal and state agencies. One
commenter stated that agency coordination should be required whenever a
request for a waiver of the 300 linear foot limit is being evaluated by
the district engineer. One commenter stated that this NWP should not
include the waiver provision because of potential impacts to cultural
resources and historic properties.
We do not believe it is necessary to coordinate all activities
authorized by this NWP with Federal and state agencies. District
engineers will carefully evaluate these pre-construction notifications
and determine whether the proposed activities qualify for NWP
authorization. Agency coordination is required for pre-construction
notifications for proposed activities resulting in the loss of
intermittent or ephemeral stream bed in excess of 300 linear feet.
Activities authorized by this NWP must also comply with general
condition 20, historic properties and district engineers will conduct
section 106 consultation if a proposed activity may have the potential
to cause effects to any historic properties listed, or eligible for
listing, on the National Register of Historic Places.
Several commenters requested clarification on whether land-based
renewable energy facilities would be considered as single and complete
linear projects or single and complete non-linear projects. Several
commenters asked if the linear features of these facilities, such as
roads, utilities, and transmission lines, could be categorized as
linear projects, while the construction of other components of the
project, such as parking lots and buildings, would be considered as
non-linear projects. A few commenters said terms and conditions should
be added to the NWP to specify that the definition of single and
complete linear project would always be used for linear components of
the overall facility. One commenter stated that the activities
authorized by this NWP should be considered one single and complete
project because all renewable energy devices and their attendant
features, including both linear and non-linear components, are required
for the facility to have independent utility.
We have added Note 1 to this NWP to clarify that the NWP authorizes
discharges of dredged or fill material into waters of the United States
for the construction, expansion, or modification of a land-based
renewable energy generation facility, including attendant features
within that facility, and that utility lines that are used to transfer
energy from the renewable energy generation facility to a distribution
system, regional grid, or other facility are generally considered to
[[Page 10238]]
be separate single and complete linear projects. Those utility lines
may be authorized by NWP 12 or other Department of the Army
authorization. A similar approach should be used for roads or other
types of utility lines (e.g., sewage or water lines) constructed to
provide access to, or service, the land-based renewable energy
generation facility. We are using the term ``generally'' in Note 1
because crossings of waters of the United States have to be at separate
and distant locations to be a single and complete project. Crossings
that are close together would not be considered separate single and
complete projects. Since the configuration of land-based renewable
energy generation facilities can vary substantially, district engineers
will use their discretion to determine which activities are single and
complete linear projects and which activities are single and complete
non-linear projects, after evaluating the specific circumstances of a
particular project. For example, the devices used to collect wind or
solar energy may be arranged in a grid or in a linear configuration.
One commenter asked how the permit area would be determined for
land-based renewable energy facilities. Specifically, the commenter
asked whether the permit area would be the entire area bound by the
perimeter of the facility, or just those areas within the facility
where there are discharges of fill material into waters of the United
States.
Identifying the permit area for the purposes of compliance with
general condition 20, historic properties, is accomplished by applying
the criteria in Appendix C to 33 CFR part 325, specifically paragraph
1(g), as well as the interim guidance issued on April 25, 2005
(paragraph 6(d)). The permit area will be determined by district
engineers after considering the project-specific circumstances.
Several commenters stated that this NWP should not authorize
activities in certain geographic areas, such as the Great Lakes. One
commenter said that approval may be required for facilities that would
impact state-owned waters or submerged lands.
Division engineers have the authority to suspend or revoke this NWP
in specific waters or geographic areas. Division engineers may also add
regional conditions to restrict or prohibit its use in certain waters
or regions. In response to a pre-construction notification, district
engineers may add activity-specific conditions to the NWP authorization
to ensure that the activity results in minimal adverse effects on the
aquatic environment. Project proponents must obtain all applicable
Federal, state, or local authorizations, such as state permits to
authorize activities on state-owned waters or submerged lands.
One commenter said that this NWP could be used to authorize
activities associated with wind energy generating structures, solar
towers, or overhead transmission lines, which have the potential to
interfere with Department of Defense's long range surveillance,
homeland defense, testing, and training missions. This commenter
requested that copies of pre-construction notifications and NWP
verification letters for these activities be provided to the Department
of Defense Siting Clearinghouse, so that the Department of Defense
could have an opportunity to coordinate with the project proponent to
ensure that long range surveillance, homeland defense, testing, and
training missions are not adversely affected by these activities.
We have added Note 2 to this NWP to require district engineers to
send pre-construction notifications and NWP verification letters to the
Department of Defense Siting Clearinghouse if this NWP is proposed to
be used to authorize the construction of wind energy generating
structures, solar towers, or overhead transmission lines. The
Department of Defense Siting Clearinghouse is responsible for
coordinating with the project proponent and resolving any potential
effects on Department of Defense long range surveillance, homeland
defense, testing, and training missions.
Proposed NWP A is issued as NWP 51, with the changes discussed
above.
NWP 52. Water-Based Renewable Energy Generation Pilot Projects.
This NWP was proposed as NWP B to authorize structures or 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, or modification of water-based wind or hydrokinetic
renewable energy generation pilot projects and their attendant
features. Attendant features may include, but are not limited to land-
based distribution facilities, roads, parking lots, utility lines, and
stormwater management facilities. We proposed a \1/2\-acre limit for
this NWP, including the loss of no more than 300 linear feet of stream
bed, unless for intermittent and ephemeral stream beds the district
engineer waives this 300 linear foot limit by making a written
determination concluding that the discharge will result in minimal
adverse effects.
Several commenters supported the issuance of this NWP. Some of
these commenters provided suggestions to improve the NWP. Two
commenters said the acreage limit should be increased from \1/2\-acre
to one acre and the linear foot limit be increased from 300 linear feet
to 500 linear feet. One commenter stated that the NWP limits impacts to
\1/2\-acre without taking into consideration the aggregate capacity of
the facility, only the number of generation units. One commenter said
the pre-construction notification threshold should be increased to \1/
10\-acre to be consistent with the pre-construction notification
threshold of some of the other NWPs that authorize similar activities,
such as NWP 12. This commenter asked why activities associated with
water-based renewable energy projects should be subject to closer
scrutiny than other energy-related activities.
We are issuing this NWP with the \1/2\-acre and 300 linear foot
limits, and restricting its use to pilot projects, to ensure that this
NWP authorizes only those activities that have minimal adverse effects
on the aquatic environment. Division engineers can impose regional
conditions on this NWP to decrease these limits, if there is potential
for these activities to result in more than minimal adverse effects on
the aquatic environment in a particular waterbody or geographic area.
Individual permits, with a public notice and comment process, should be
required for larger-scale water-based renewable energy generation
facilities that are not pilot projects and involve activities that
require Department of the Army authorization. Use of technologies other
than wind or hydrokinetic devices for water-based renewable energy
generation facilities may be authorized by other forms of Department of
the Army permits, if such permits are required for the construction,
expansion, modification, or removal of those devices. We are requiring
pre-construction notification for all activities authorized by this
NWP, so that district engineers can evaluate the proposed work and make
a project-specific determination that the adverse effects on
navigation, the aquatic environment, and other public interest review
factors would be minimal, individually and cumulatively. It should be
noted that NWP 12 only authorizes discharges of dredged or fill
material, or structures or work in navigable waters of the United
States, for the construction, maintenance, or repair of utility lines,
and that all NWP 12 activities in section 10 waters require
[[Page 10239]]
pre-construction notification. Therefore, there are few differences in
pre-construction notification thresholds for this NWP and other NWPs
that may authorize similar activities. However, as with NWP 51, it is
not our intent to limit any currently available options for use of
other applicable NWPs to cover discharges of dredge or fill material
associated with activities involved in the construction of water-based
renewable energy generation pilot projects. Rather, this NWP provides
an additional option for authorization of such discharges that are not
currently covered by any other NWP.
Several commenters also stated that the limit of 10 generation
units should either be eliminated or further defined. Several
commenters said the 10 generation unit limit should be removed to allow
projects that employ different technologies to be authorized by this
NWP. Several commenters said that the total number of generation units
should be defined as the total number of units per each single and
complete project.
We believe the 10-unit limit is necessary to ensure that these
pilot projects are small in scope, to ensure they would not have
significant adverse environmental effects. The 10-unit limit, as well
as the \1/2\-acre and 300 linear foot limits, apply to single and
complete projects. The information collected during these pilot
projects will be useful in evaluating the potential productivity,
feasibility, and environmental effects of larger scale water-based
renewable energy generation facilities, which will require other types
of authorization if they require DA permits.
Numerous commenters objected to the issuance of this NWP. Most of
these commenters said that these activities will result in more than
minimal individual and cumulative adverse effects on the aquatic
environment. Several commenters said that there is not sufficient
understanding of the environmental effects of these activities to
warrant issuance of an NWP. Some commenters stated that these
activities should be authorized by individual permits, with a full
public notice and comment process and National Environmental Policy Act
documentation. A few commenters said this NWP should not be used to
authorize activities in the Great Lakes.
The terms and conditions of this NWP, including the \1/2\-acre
limit, the 300 linear foot limit, and the 10-unit limit will ensure
that this NWP authorizes only those activities with minimal adverse
effects on the aquatic environment. All activities authorized by this
NWP require pre-construction notification, which provides district
engineers with the opportunity to review each proposed activity and
determine whether the adverse effects on the aquatic environment will
be minimal. District engineers may add activity-specific conditions to
the NWP authorization which require actions to mitigate adverse
environmental effects. District engineers may also exercise
discretionary authority to require an individual permit if permit
conditions will not be sufficient to comply with the minimal adverse
environmental effects requirement for general permits. Division
engineers may impose regional conditions to restrict or prohibit the
use of this NWP in certain waters or specific geographic areas,
including the Great Lakes.
Several commenters requested a definition of the term ``pilot
project.'' Some of these commenters said that this term could be
interpreted broadly, in part because much of the technology used for
water-based renewable energy generation facilities is in the early
stages of development. In contrast, another commenter stated that not
defining the term ``pilot project'' would restrict the applicability of
this NWP. One commenter suggested that this NWP not be limited to pilot
projects. One commenter recommended limiting pilot projects to those
that will be used as demonstration projects or test projects to
determine the practicability of water-based renewable energy generation
at a particular site. One commenter said that this NWP should not be
limited to small offshore wind energy pilot projects, and that this NWP
should authorize offshore wind energy projects of any duration to
encourage the development of renewable energy technologies.
We have added a provision to this NWP that defines the term ``pilot
project.'' The definition is similar to how the Federal Energy
Regulatory Commission describes hydrokinetic pilot projects in their
April 2008 white paper on licensing hydrokinetic pilot projects. The
definition in the NWP focuses on the experimental nature of pilot
projects, and their use in collecting data on the performance of the
device in generating energy for other uses and the effects of the
devices on the environment, including the aquatic environment. Due to
the recent development of this technology, we believe it is necessary
to limit these water-based renewable energy generation facilities to
pilot projects, to provide more information on potential adverse
effects to the aquatic environment. In a future reissuance of the NWPs,
we may consider expanding the scope of this NWP to authorize other
small-scale water-based renewable energy generation facilities. A
water-based renewable energy generation facility that is not a pilot
project and does not qualify for an applicable regional general permit
is more appropriately evaluated through the standard permit process,
including a full public interest review.
One commenter stated that even pilot projects may result in more
than minimal adverse effects on the aquatic environment because of
indirect effects caused by blade strikes on birds and potential
obstructions to navigation when these pilot projects are sited in
navigable rivers. One commenter said the 10 generation unit limit may
not be effective in ensuring that single and complete projects do not
cause more than minimal adverse environmental effects on a cumulative
basis or comply with monitoring requirements.
District engineers will review pre-construction notifications and
determine whether the proposed activity complies with all terms and
conditions of the NWP and may add activity-specific conditions, such as
authorizing less than 10 units, to minimize adverse effects to
navigation, the aquatic environment, and other public interest review
factors such as impacts to fish and wildlife values. Indirect effects
caused by the operation of these pilot projects, such as wind turbine
blade strikes on birds, should be addressed through compliance with the
appropriate Federal laws, such as the Endangered Species Act, Migratory
Bird Treaty Act, or Bald and Golden Eagle Protection Act. Compliance
with the Endangered Species Act is addressed through general condition
18. As stated in general condition 19, project proponents are
responsible for obtaining any take permits that may be required under
the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection
Act. The project proponent should contact the local office of the U.S.
Fish and Wildlife Service to determine whether a take permit is
required for that project. Impacts to fish or other aquatic organisms
caused by hydrokinetic energy units should be considered by district
engineers when reviewing pre-construction notifications for activities
authorized by this NWP. District engineers may also suspend or revoke
NWP authorizations if they determine those activities are causing more
than minimal adverse environmental effects to the aquatic environment.
Division engineers may impose regional conditions on this NWP to reduce
the number of units authorized by this NWP, or restrict or prohibit its
use in specific waters or other geographic areas.
[[Page 10240]]
Several commenters requested clarification of applicability of the
300 linear foot stream limit to the ocean floor or the Great Lakes
because those waters are not characterized as streams. A few commenters
suggested that the 300 linear foot limit does not apply to water-based
renewable energy generation pilot projects in the ocean or large
rivers, since activities in those waters does not result in a loss of
stream bed.
We agree that the 300 linear foot limit does not apply to the
construction, expansion, modification, or removal of water-based wind
or hydrokinetic renewable energy devices in the ocean, Great Lakes, or
large navigable rivers, since those activities do not result in loss of
stream bed. The 300 linear foot limit also does not apply to the
installation or removal of transmission lines on the ocean floor, the
bottom of the Great Lakes, or the substrate of large navigable rivers.
Transmission lines placed on the bottom of navigable waters are
generally considered to be structures, not fill. District engineers
will evaluate the techniques used to place transmission lines on the
bottom of navigable waters and determine whether there is a discharge
of dredged or fill material, and whether that discharge of dredged or
fill results in a loss of waters of the United States subject to the
300 linear foot limit. The installation of transmission lines in these
navigable waters in trenches that are backfilled constitutes a
temporary impact and is not applied to the 300 linear foot limit for
the loss of stream bed. The 300 linear foot limit for the loss of
stream bed applies primarily to the construction of land-based
attendant features, such as distribution facilities, control
facilities, roads, parking lots, and stormwater management facilities.
We have added a provision to this NWP to clarify that 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 facility is considered a structure regulated under Section
10 of the Rivers and Harbors Act of 1899, and not a discharge of fill
material under Section 404 of the Clean Water Act. The placement of the
transmission line on the bed of the navigable water is not considered a
loss of waters of the United States that applies towards the \1/2\-acre
limit or 300 linear foot limit of the NWP.
Several commenters requested the addition of more categories of
sensitive habitat where this NWP could not be used to authorize
structures or work in navigable waters of the United States or
discharges of dredged or fill material into waters of the United States
for water-based renewable energy generation pilot projects. Two
commenters suggested adding coral reefs to the list of prohibited
areas. Another commenter suggested adding National wildlife refuges,
state parks, state wildlife management areas, designated significant
coastal areas, critical habitats for Federally-listed endangered and
threatened species, important bird areas, or any sensitive
environmental area. One commenter recommended adding eelgrass beds,
seagrass beds, kelp beds, macro-algae beds, vegetated shallows, and
shellfish beds to the list of excluded areas.
The proposed NWP B stated that it did not authorize activities in
coral reefs. This NWP is also subject to general condition 22,
designated critical resource waters, which prohibits using this NWP to
authorize discharges of dredged or fill material into critical resource
waters and their adjacent wetlands. Critical resource waters include
marine sanctuaries and marine monuments managed by the National Oceanic
and Atmospheric Administration, and National Estuarine Research
Reserves. District engineers may designate additional critical resource
waters, after notice and an opportunity for public comment. Division
engineers may also impose regional conditions to restrict or prohibit
the use of this NWP in specific categories of waters or in certain
geographic areas. In response to a pre-construction notification,
district engineers may exercise discretionary authority and require an
individual permit if the proposed activity will result in more than
minimal adverse effects on the aquatic environment.
One commenter said that district engineers should not be authorized
to waive the 300 linear foot limit for the loss of intermittent and
ephemeral stream bed. One commenter suggested that all pre-construction
notifications requesting a waiver of the 300 linear foot limit should
be coordinated with the Federal and state resource agencies.
For those losses of more than 300 linear feet of intermittent and
ephemeral stream bed that result in minimal adverse effects on the
aquatic environment, it is appropriate for district engineers to have
the authority to waive the 300 linear foot limit. This approach is
consistent with the statutory requirement that activities authorized by
general permits, including NWPs, result in minimal individual and
cumulative adverse environmental effects. Agency coordination is
required for proposed losses of greater than 300 linear feet of
intermittent and ephemeral stream bed.
Two commenters recommended adding a provision to this NWP that
requires the removal of structures associated with any activity
authorized under this NWP, once the pilot project has been completed.
One commenter suggested adding more examples of attendant features that
may be authorized by this NWP, such as control rooms, trailers, vaults
and sheds since these are common features of land-based distribution
facilities.
We have added a paragraph to this NWP that requires the permittee
to remove the generation units, transmission lines, and other
structures or fills associated with the pilot project once the pilot
project is completed, unless they are authorized by a separate
Department of the Army authorization, such as another NWP, an
individual permit, or a regional general permit. Pilot units may be
integrated into a permanent water-based renewable energy generation
facility after the experimental phase has been completed, and the
permanent facility has been authorized by any required Department of
the Army permits. We have also added ``removal'' to the first sentence
of this NWP, to clarify that the NWP also authorizes the removal of
structures and fills associated with water-based renewable energy
generation pilot projects, if, for example, the removal of structures
or fills from navigable waters of the United States would require
authorization under Section 10 of the Rivers and Harbors Act of 1899.
Furthermore, we added a clarification of ``completion of the pilot
project,'' which will be identified as the date of expiration of the
FERC (Federal Energy Regulatory Commission) license, or the expiration
date of the NWP authorization if no FERC license is issued. If the
project proponent wants to continue operating the pilot project after
the expiration of the FERC license, he or she should apply for another
form of DA permit, such as an individual permit. If the pilot project
was only authorized by NWP 52, it may be verified under a reissued NWP
52, if NWP 52 is reissued in 2017. Reauthorization under a reissued NWP
52 may require submission of a new pre-construction notification, to
ensure that the pilot project still meets the terms and conditions of
the reissued NWP 52. We have added ``control facilities'' to the list
of examples of attendant features.
One commenter recommended adding a note to the NWP to require a
mutual agreement between the Corps, the United States Coast Guard, and
a prospective permittee to ensure
[[Page 10241]]
navigational safety. One commenter stated that the NWP should include a
provision requiring compliance with state permit requirements to ensure
a consistent and thorough environmental review. One commenter said that
this NWP should require project proponents to comply with the
Department of the Interior's suggested practices for avian protection
to protect birds from electrocution.
We do not agree that it is necessary to require the execution of
agreements between the Corps, United States Coast Guard, and the
prospective permittee to ensure navigation safety. District engineers
will review pre-construction notifications and exercise discretionary
authority if the proposed activity will have more than minimal adverse
effects on navigation. The permittee must comply with applicable United
States Coast Guard requirements to mark or light structures in
navigable waters. It is the permittee's responsibility to obtain any
other Federal, state, or local authorizations that may be required for
the water-based renewable energy generation pilot project. The
permittee may voluntarily incorporate into his or her project the
Department of the Interior's recommended practices for protecting birds
from electrocution. If the proposed NWP activity may affect endangered
or threatened bird species, Endangered Species Act Section 7
consultation will be conducted, which may also address potential
effects to those species caused by electrocution. In accordance with
general condition 19, migratory birds and bald and golden eagles, it is
the permittee's responsibility to obtain any ``take'' permits that may
be required under the U.S. Fish and Wildlife Service's regulations
governing compliance with the Migratory Bird Treaty Act and the Bald
and Golden Eagle Protection Act.
One commenter said that this NWP could be used to authorize
activities associated with wind energy generating structures, solar
towers, or overhead transmission lines, which have the potential to
interfere with Department of Defense's long range surveillance,
homeland defense, testing, and training missions. This commenter
requested that copies of pre-construction notifications and NWP
verification letters for these activities be provided to the Department
of Defense Siting Clearinghouse, so that the Department of Defense
could have an opportunity to coordinate with the project proponent to
ensure that long range surveillance, homeland defense, testing, and
training missions are not adversely affected by these activities.
We have added Note 4 to this NWP to require district engineers to
send pre-construction notifications and NWP verification letters to the
Department of Defense Siting Clearinghouse if this NWP is proposed to
be used to authorize the construction of wind energy generating
structures, solar towers, or overhead transmission lines. The
Department of Defense Siting Clearinghouse is responsible for
coordinating with the project proponent and resolving any potential
effects on Department of Defense long range surveillance, homeland
defense, testing, and training missions.
Proposed NWP B is issued as NWP 52, with the changes discussed
above.
General Conditions
One commenter suggested reordering the general conditions to better
aggregate concepts based on importance to permittees and the resources
potentially affected. One commenter recommended placing general
conditions 14 and 20 together because they both address cultural
resources. One commenter said that proposed general condition 30, pre-
construction notification, should become general condition 1 because of
its importance for potential users of the NWPs, in terms of the pre-
construction notification requirements.
With one exception, we have retained the order of the general
conditions because we believe they are in a logical order. We have
moved proposed general condition 14, discovery of previously unknown
remains and artifacts, to become general condition 21 so that it
follows general condition 20, historic properties. We have retained the
pre-construction notification general condition in its place as the
last general condition (as general condition 31), because the text of
the NWPs state which activities require pre-construction notification.
Two commenters suggested new general conditions to minimize
construction impacts. One suggestion was to require flagging
construction limits to protect nearby aquatic areas and the other
recommended a general condition to address temporary crossings or
structures.
Requirements to flag construction limits are more appropriately
addressed through activity-specific conditions added to an NWP
authorization, when the district engineer determines such flagging is
necessary to ensure the authorized activity results in minimal adverse
effects on the aquatic environment. General condition 13, removal of
temporary fills, and general condition 9, management of water flows,
adequately address the concerns about temporary crossings and
structures.
One commenter said the phrase ``as appropriate'' should be deleted
from the Note at the beginning of Section C, Nationwide Permit General
Conditions.
We have changed this phrase to ``as applicable'' to clarify that a
permittee is responsible for complying with general conditions that are
pertinent to a particular NWP activity.
Comments on Specific General Conditions
GC 1. Navigation. We did not propose any changes to this general
condition and no comments were received. The general condition is
adopted as proposed.
GC 2. Aquatic Life Movements. We proposed to modify this general
condition to provide added protection to the aquatic environment by
promoting the use of bottomless culverts, when it is practicable to use
those types of culverts to maintain movements of aquatic organisms.
Two commenters supported the proposed changes to this general
condition. One commenter said that all crossings should be designed by
using a stream simulation technique. Another commenter stated that
requirements for bottomless culverts should only apply to new
activities. Many commenters said that culverts that are installed with
their bottoms below the grade of the stream bed can be as effective as
bottomless culverts in improving conditions for aquatic life movement
while still being cost effective and providing the intended function of
allowing movement of aquatic organisms.
Many commenters objected to the proposed changes to this general
condition, and most of these commenters requested that the reference to
the use of bottomless culverts be removed, stating that in many cases
that bottomless culverts are not practicable or cannot be used in many
locations. A large number of commenters expressed concern that
requiring the use of bottomless culverts would significantly increase
costs and would not be feasible. Several commenters disagreed that the
use of bottomless or buried culverts reduces overall impacts to
streams, and some commenters said that use of bottomless culverts can
cause adverse effects to streams by increasing erosion and head cuts.
One commenter recommended promoting the use of alternative measures or
techniques to maintain aquatic life movements. Some commenters said
that the proposed changes to this general condition would
[[Page 10242]]
result in all affected activities requiring pre-construction
notification.
After evaluating the large number of comments received in response
to the proposed changes to this general condition, we have generally
reverted back to the text that was in the 2007 general condition, with
a few minor changes. We have modified the last sentence of the 2007
general condition to make it clear that the general condition applies
to both temporary and permanent crossings, and that those crossings
should be designed and constructed to maintain low flows to sustain the
movement of indigenous aquatic species. We have not adopted the
provision that would have required bottomless culverts to be used where
practicable. In addition, we have not incorporated the sentence that
explains some of the circumstances where bottomless culverts may not be
practicable. In response to a pre-construction notification, the
district engineer may evaluate the proposed crossing to determine
whether it complies with this general condition. The district engineer
may add conditions to the NWP authorization to require measures to
sustain aquatic life movements, including bottomless culverts, if
appropriate.
Many commenters said that bottomless culverts require complex
designs that require pile supported footings and many local and county
governments do not have the resources available to design, construct,
and maintain bottomless culverts in a manner that ensures roadway
safety. Many commenters stated that bottomless culverts need more long-
term maintenance and will increase costs and delays. One commenter
noted that construction techniques required to install bottomless
culverts may result in unsuitable conditions for aquatic life movement.
Several commenters expressed concern that footings may deteriorate and
undermine the integrity of the structure and increase the possibility
of collapse during high flow conditions. Several commenters said
bottomless culverts cannot be installed in areas with highly erodible
or weak soils. One commenter asserted that bottomless culverts
generally cannot support load conditions created by rail traffic.
Because of the various factors that determine appropriate culvert
designs for a particular waterbody, we are not adopting the proposed
language concerning bottomless culverts. The general condition requires
permanent and temporary crossings to be suitably culverted, bridged, or
otherwise designed and constructed to fulfill the objective of the
general condition, which is to sustain the movements of aquatic species
indigenous to the waterbody, both during and after completion of the
activity.
Several commenters stated that requiring bottomless culverts or
bottoms of culverts to be below the grade of the stream bed restricts
design flexibility that reflects site specific conditions. One
commenter said it is not practicable to install the bottoms of culverts
below grade in all circumstances. One commenter said that the
appropriate structure to allow aquatic life movements to continue
should be determined by considering the land cover within the
watershed, the variability of stream flow, and the presence or absence
of aquatic life. One commenter indicated that it is not possible to
bury pre-cast culverts because the bed material would be difficult to
place. This commenter also said that below grade structures collect
more debris and increase erosion on the downstream side of the culvert.
This commenter expressed concern that culvert bottoms installed below
grade would cause water to pool and provide habitat for pests such as
mosquitoes. One commenter said that below grade culverts direct high
velocity flows and create scour holes at the outlet and destabilize the
banks. Another commenter stated that sinking a culvert below grade
drains land used for row crops and accumulates silt that blocks aquatic
life movements.
We have also removed the provision requiring the bottoms of
culverts to be installed below the grade of the stream bed unless the
stream bed consists of bedrock or boulders. The modified general
condition merely states that permanent and temporary crossings of
waterbodies must be suitably culverted, bridged, or otherwise designed
or constructed, to provide flexibility for using a crossing that is
appropriate for the site conditions, while sustaining the movements of
aquatic species indigenous to the waterbody.
Many commenters said that the use of bottomless culverts should be
limited to perennial streams. A number of commenters stated that many
ephemeral and intermittent streams are not capable of supporting
aquatic life or do not have sufficient aquatic life movement to justify
the expense and technical design requirements for bottomless culverts.
Several commenters said this general condition should not apply to
ephemeral streams. One commenter stated that bottomless culverts should
only be used in waters that support special status aquatic life
species. One commenter said the bottomless culvert requirement should
be limited to streams and not required for ditches or other waters.
Another commenter expressed concern that installing the bottom of the
culvert below grade will tend to dewater wetlands.
The general condition has been reworded to provide flexibility to
determine appropriate culvert design based on site-specific
characteristics. Crossings of perennial, intermittent, and ephemeral
streams must be appropriately designed and constructed to sustain the
movement of indigenous aquatic species.
Many commenters requested a definition of the term ``practicable''
as used in the context of the proposed general condition. One commenter
said that regional variability should be considered when determining if
it is practicable to use a bottomless culvert. Several commenters asked
for more examples of when it would be impractical to use a bottomless
culvert. One commenter requested clarification as to who would
determine if use of a bottomless culvert is practicable. Many
commenters said cost should be a primary factor used to determine if it
is practicable to use a bottomless culvert. One commenter stated that
there would be additional paperwork requirements necessary to evaluate
the practicability of using bottomless culverts.
The proposed provision requiring the use of bottomless culverts
where practicable has not been adopted into the final general
condition. The term ``practicable'' is defined in the 404(b)(1)
Guidelines at 40 CFR 230.3(q) as ``available and capable of being done
after taking into consideration cost, existing technology, and
logistics in light of overall project purposes.'' However, it is no
longer used in this general condition.
One commenter said the general condition should include criteria to
be used to determine whether there is a substantial disruption to
aquatic life movement. Two commenters asked what threshold would be
used to identify a substantial disruption. Another commenter stated
that the general condition should list the species that would be
covered. One commenter said this general condition would not sustain
aquatic life movements during future high flows that are expected as a
result of global climate change.
Determining compliance with this general condition is at the
discretion of the district engineer. It is not possible to define, on a
national basis, what constitutes a substantial disruption of the
necessary life cycle movements of aquatic species indigenous to the
waterbody. It is not appropriate to
[[Page 10243]]
provide a national list of such species, but this condition generally
applies to all indigenous species in the waterbody whose life-cycle
movement may be affected by the project. How global climate change
might affect the flow patterns and volumes of particular streams,
rivers, or other waterbodies cannot be predicted with a reasonable
degree of certainty. Crossing designs should be based on present
conditions, and the crossing may be modified at a later time to
accommodate changes in flow patterns and volumes that occur as
environmental conditions change.
One commenter stated that additional requirements for proper
culvert sizing should be added to this general condition to ensure fish
passage and reduce failure. This commenter said that natural bankfull
capacity of the stream channel should be maintained. One commenter also
recommended that culverts have a width of 1.2 times the bankfull width
of the stream, and be embedded a minimum of two feet to maintain
connected habitat and a stable stream bed. Another commenter stated
that stream crossings should maintain natural flows, substrate, and
stream grade from upstream to downstream of the culvert. This commenter
suggested adding a provision that states that bridges or bottomless
culverts are to be used when practicable.
The proper sizing of culverts is more appropriately addressed
through an evaluation of the site for the proposed NWP activity and the
surrounding area. The general condition focuses on maintaining the
necessary life cycle movements of aquatic species indigenous to the
waterbody, not the geomorphic characteristics of the waterbody.
Maintenance of water flows, including the proper width and height of
culverts, bridges, and other crossings, is more appropriately addressed
by general condition 9, management of water flows. We have modified
this general condition to require permanent and temporary crossings to
be suitably culverted, bridged, or otherwise designed and constructed
to maintain low flows to sustain the movement of indigenous aquatic
species.
Two commenters requested that, if the proposed changes to this
general condition are adopted, sufficient time should be provided for
state, county, and local governments to update their design
requirements to include bottomless culverts. One commenter stated it
would take approximately two years to develop standards for bottomless
and buried culvert installation. Another commenter expressed concern
about the expense and time required to revise the plans and
specifications for projects nearly ready for construction.
We do not believe it is necessary to provide a grandfathering
provision for the implementation of this general condition. The general
condition provides substantial flexibility to design permanent and
temporary crossings, and uses a results-driven approach to help ensure
that NWP activities have only minimal adverse effects on the movement
of indigenous species of aquatic organisms. Existing construction and
design standards can be used to satisfy the objective of this general
condition.
The general condition is adopted with the modifications discussed
above.
GC 3. Spawning Areas. We did not propose any changes to this
general condition. One commenter said this general condition should be
removed, and replaced with regional conditions that require buffers for
spawning areas. This commenter reasoned that local buffer requirements
would be more appropriate for satisfying the requirements of the
Endangered Species Act. Two commenters stated that only requiring
avoidance of spawning areas to the maximum extent practicable is not
sufficient, and one of those commenters said that the destruction of
spawning areas should not be allowed under any circumstances. One
commenter recommended modifying this general condition to prohibit
activities that adversely affected all spawning areas. One commenter
suggested explicitly including forage fish habitat and submerged
aquatic vegetation as protected resources in this general condition.
We are retaining this general condition because spawning areas are
important components of the aquatic environment and should be addressed
at the national level to ensure that NWP activities result in minimal
adverse effects on the aquatic environment. Division engineers may
impose regional conditions on this NWP to establish buffers to protect
spawning areas for particular species. Activities authorized by NWPs
must also comply with general condition 18, endangered species. The
intent of this general condition is to minimize adverse effects to
spawning areas caused by NWP activities, and it is not feasible to
completely prohibit activities that may affect spawning areas. In areas
where there are documented concerns for fish forage habitat or
submerged aquatic vegetation, division engineers can add regional
conditions to the NWPs to restrict or prohibit activities in those
areas.
This general condition is adopted as proposed.
GC 4. Migratory Bird Breeding Areas. We did not propose any changes
to this general condition. One commenter said this general condition
should be removed and regional conditions should be used instead to
establish buffers for migratory bird breeding areas. This commenter
also stated that the requirement that NWP activities avoid breeding
areas for migratory birds to the maximum extent practicable is not
sufficient to protect those areas. One commenter said buffers
established through regional conditions would satisfy Endangered
Species Act requirements more effectively.
This general condition addresses a national concern for breeding
areas for migratory birds, and establishes a consistent, national
requirement for regulated activities to avoid these areas to the
maximum extent practicable. Nationwide permit activities that may
affect migratory birds that are listed as endangered or threatened
under the Endangered Species Act, or that may affect designated
critical habitat, must comply with general condition 18, endangered
species.
This general condition is adopted as proposed.
GC 5. Shellfish Beds. We did not propose any changes to this
general condition. One commenter said the term ``concentrated shellfish
populations'' should be defined to specify a method to be used to
identify such areas, because in some states shellfish beds are
prominent features in waterways. Another commenter suggested changing
the text of the general condition to state that shellfish beds created
as habitat cannot be used for harvesting, and NWPs 4 and 48 could not
authorize activities in those areas. One commenter recommended adding
restoration projects authorized by NWP 27 to this general condition.
The identification of concentrated shellfish populations for the
purposes of determining compliance with this general condition is more
appropriately conducted by district engineers using local criteria and
methods. Shellfish beds established through habitat restoration
projects may be used for growing shellfish for consumption and other
uses, and the decision on whether harvesting in those areas should be
allowed is at the discretion of Federal, state, and/or local
authorities. We have added shellfish seeding or habitat restoration
activities authorized by NWP 27 to the list of NWP activities that may
occur in areas of concentrated shellfish populations, since NWP 27
activities may improve habitat quality and further increase shellfish
populations.
[[Page 10244]]
This general condition is adopted with the modification discussed
above.
GC 6. Suitable Material. We did not propose any changes to this
general condition. One commenter recommended that this general
condition should explicitly prohibit the use of tires as fill material,
because tires can leach toxic amounts of chemicals that are harmful to
aquatic species. One commenter said the general condition should be
changed so that only environmentally suitable or stable material may be
used as fill, because many plastics are unstable when exposed to
ultraviolet light or temperature changes. One commenter stated that
contaminated sediments should not be used as fill material. One
commenter recommended modifying this general condition to minimize
impacts to habitat and species caused by the leaching of heavy metals,
pesticides, and polycyclic aromatic hydrocarbons.
We do not believe it is necessary to add tires or plastics to the
list of examples of unsuitable materials. Prohibiting the use of
unsuitable materials is more effective and enforceable than stating
that only environmental suitable or stable materials may be used. It is
impractical, for the purposes of the NWP program, to establish what
would constitute an environmentally suitable material since we are not
aware of any Federal standards that could be applied, other than those
covered under Section 307 of the Clean Water Act. A similar problem
exists for identifying stable materials, because the timeframe that
might be used to determine whether a particular material is ``stable''
would vary by the material. The district engineer will make a case-by-
case determination of what constitutes unsuitable material. The current
text of the general condition prohibits the use of contaminated
sediment as fill material, if it contains toxic pollutants in toxic
amounts. The general condition also prohibits the use of materials that
contain heavy metals, pesticides, and polycyclic aromatic hydrocarbons
in toxic amounts, in accordance with Section 307 of the Clean Water
Act.
This general condition is adopted as proposed.
GC 7. Water Supply Intakes. We did not propose any changes to this
general condition and no comments were received. The general condition
is adopted as proposed.
GC 8. Adverse Effects from Impoundments. We did not propose any
changes to this general condition. One commenter said the general
condition should include specific examples of how to reduce impacts
associated with accelerating passage of water and how to prevent the
restriction of normal water flows. Another commenter asked for a
definition for the term ``maximum extent practicable.'' Two commenters
stated that impoundments that cause adverse effects to the aquatic
environment by changing water flows should not be authorized by NWPs
and should instead require individual permits with agency coordination.
Specific measures for reducing impacts caused by accelerated water
flows or restricted water flows have to be determined on a case-by-case
basis after considering the environmental characteristics of the site
of the NWP activity. It would not be appropriate to establish such
measures at a national level. An activity-specific evaluation would
also have to be done to determine whether the minimization of these
adverse effects has been accomplished to the maximum extent
practicable. District engineers will use their discretion to determine
compliance with this general condition. The term ``practicable'' is
defined in the 404(b)(1) Guidelines at 40 CFR 230.3(q) as ``available
and capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall project
purposes.'' We do not agree that all impoundments should require
individual permits; impoundments may be authorized by general permits,
including NWPs, as long as they have minimal individual and cumulative
adverse effects on the aquatic environment and comply with the
applicable terms and conditions, including any general conditions,
regional conditions, and activity-specific conditions, of an NWP
authorization.
This general condition is adopted as proposed.
GC 9. Management of Water Flows. We did not propose any changes to
this general condition. One commenter asked for a definition of the
term ``expected high flows'' and said the possibility of high flow
events should be anticipated during project implementation. One
commenter stated that this general condition should be modified to
prohibit changes to stream channels in intertidal areas. One commenter
stated that shoreline structures and fills, such as seawalls,
bulkheads, and revetments, reflect wave energy that causes deep
scouring of the shore, and over-steepened local shore faces. These
induced hydraulic effects substantially alter the flow patterns in
intertidal features such as ocean and estuarine beaches, wetlands and
mudflats.
It would be inappropriate to attempt to define the term ``expected
high flows'' since it would depend on the environmental setting of the
NWP activity. To comply with this general condition, the activity
should not be substantially damaged by an expected high flow.
Activities in stream channels located in intertidal areas are subject
to this general condition and if a proposed NWP activity involves the
alteration of intertidal stream channels and requires pre-construction
notification, the district engineer will evaluate the proposed activity
and determine whether it will result in minimal adverse effects on the
aquatic environment. Bank stabilization activities should be designed
and constructed to withstand expected high flows. Adverse effects to
littoral or fluvial processes, or adverse effects caused by deflections
of wave energy, should be considered by district engineers when
evaluating pre-construction notifications for proposed bank
stabilization activities.
This general condition is adopted without change.
GC 10. Fills Within 100-Year Floodplains. We did not propose any
changes to this general condition. Several commenters explained the
benefits of fully functional natural floodplains. Most of the
commenters seemed to indicate that the Corps has regulatory
jurisdiction over non-wetland floodplains. Several commenters objected
to the general condition simply requiring compliance with Federal
Emergency Management Agency (FEMA) approved state or local floodplain
management requirements. Several commenters said that fills in
floodplains identified by state or local FEMA-approved floodplain maps
should only be authorized by individual permits, to ensure that state
or local floodplain managers are aware of these activities. Two
commenters stated that FEMA-approved standards are designed to ensure
the public is reasonably safe from flooding, but these standards
provide insufficient protection to waterways, floodplains, and other
aquatic resources. One commenter said the Corps has an independent
obligation to protect waters of the United States and this obligation
extends to protection of floodplain resources.
We acknowledge that floodplains provide important ecological
functions and services, but it must also be understood that most areas
within 100-year floodplains are not subject to Clean Water Act
jurisdiction, because a large proportion of the area within 100-year
floodplains consists of uplands. The Corps regulatory authority in 100-
year
[[Page 10245]]
floodplains is usually limited to discharges of dredged or fill
material into waters of the United States, including jurisdictional
wetlands. The protection of floodplains is more appropriately addressed
through land use planning and zoning, which is primarily the
responsibility of state and local governments, as well as tribal
governments. Land use planning and zoning can provide the holistic
approach needed to protect floodplain functions and services, reduce
economic losses through flood damage reduction, and protect human
health and welfare. If state, local, or tribal governments have zoned
areas of 100-year floodplains for residential developments or other
uses, and if those activities involve discharges of dredged or fill
material into waters of the United States and meet the terms and
conditions of an applicable NWP, and the NWP activity results in
minimal adverse effects on the aquatic environment or other relevant
public interest review factors, then authorization by NWP is
appropriate.
This general condition also recognizes that FEMA, in partnership
with state and local governments, is the more appropriate authority for
floodplain management. It is not the responsibility of the Corps to
ensure that project proponents seek any required authorizations from
state or local floodplain managers. Such a requirement would not
constitute a condition that could be enforced by the Corps. We are not
relying on FEMA-approved state or local floodplain management
requirements to protect waters of the United States located in 100-year
floodplains. The NWP program utilizes other tools, such as regional
conditions, the district engineer's ability to exercise discretionary
authority to revoke, suspend, or modify an NWP authorization, and add
activity-specific conditions to ensure that activities authorized by
the NWP results in minimal individual and cumulative adverse effects on
the aquatic environment and other public interest review factors.
Two commenters stated that fills in 100-year floodplains result in
more than minimal adverse environmental effects and should not be
authorized by NWP. One commenter suggested that the Corps evaluate NWP
activities in floodplains and riparian areas in a more holistic manner
than it did in previous NWP rulemaking efforts. One commenter said that
authorizing discharges of fill material in waters of the United States
in floodplains affects the ability to manage floodplains so that there
are no adverse impacts. One commenter stated that coordination with the
resource agencies should be required to protect habitat and
biodiversity in floodplains.
Discharges of dredged or fill material into waters of the United
States located in 100-year floodplains often have minimal adverse
effects on the aquatic environment, individually and cumulatively.
Division engineers can impose regional conditions on one or more NWPs
to restrict or prohibit their use in waters of the United States within
100-year floodplains if those NWP activities would result in more that
minimal adverse effects on the aquatic environment. In response to a
pre-construction notification, district engineers may exercise
discretionary authority and require an individual permit if the adverse
effects on the aquatic environment would be more than minimal. District
engineers may also add activity-specific conditions to an NWP
authorization to require measures to minimize adverse effects on the
aquatic environment caused by NWP activities. Since the Corps
Regulatory Program only regulates discharges of dredged or fill
material into waters of the United States and structures or work in
navigable waters of the United States, and most areas of 100-year
floodplains are not wetlands as defined at 33 CFR 328.3(b) or otherwise
waters of the United States under 33 CFR 328.3(a) and associated
guidance, the Corps does not have the authority to take a holistic
approach to floodplain management. In areas of the country where 100-
year floodplains consist mostly of uplands, construction activities in
these uplands may have a substantial adverse impact on these 100-year
floodplains. We do not agree that agency coordination should be
required for fills in 100-year floodplains, because district engineers
have the necessary expertise to evaluate pre-construction notifications
for potential adverse effects to habitat and biodiversity in these
areas.
Two commenters said the general condition should inform permittees
of their responsibility to apply for a Conditional Letter of Map
Revision from FEMA if they are discharging dredged or fill material
into waters of the United States within 100-year floodplains. One
commenter recognized that although proposed development projects must
comply with all applicable Federal, state, regional and local
regulatory requirements, many project proponents do not apply for all
required permits. One commenter said that this general condition should
be modified to require documentation of compliance with applicable
FEMA-approved state or local floodplain management requirements. One
commenter stated that FEMA-approved state or local floodplain
management requirements do not adequately protect communities and
resources from flood risks.
We do not believe it is the Corps responsibility to notify a
prospective permittee of his or her responsibility to apply for a
Conditional Letter of Map Revision from FEMA if the overall project
would modify the existing regulatory floodway, the effective base flood
elevations, or a special flood hazard area. The discharge of dredged or
fill material authorized by NWP is likely to be only a small proportion
of the overall construction project within the 100-year floodplain.
Section E, Further Information, states that obtaining an NWP
authorization does not obviate the need to obtain other Federal, state,
or local permits, approvals, or authorizations required by law.
Building permits to authorize the construction of the overall project
are the responsibility of the state or local government, and should be
based on compliance with the applicable FEMA-approved state or local
floodplain management requirements. It is not the Corps responsibility
to ensure that project proponents have complied with the applicable
FEMA-approved state or local floodplain management requirements; the
state or local governments responsible for floodplain management should
enforce the requirements they established to qualify the community for
the National Flood Insurance Program. If the floodplain management
requirements developed by state or local governments are not adequately
protecting communities from flood risks, then the agency that approved
those requirements is the appropriate entity to reexamine those
requirements.
One commenter requested that the Corps report the extent to which
NWPs are being used in floodplains, particularly in areas that have
experienced repeated flood damages. Two commenters stated that this
general condition ignores the Corps own public interest review
processes and does not comply with Executive Order 11988.
The Corps does not track the number of NWP activities that have
occurred in floodplains, since our statutory authorities are focused on
activities involving discharges of dredged or fill material into waters
of the United States and/or structures or work in navigable waters of
the United States. As stated above, many areas of 100-year floodplains
are uplands and not waters of the United States. In addition, there is
no consistent national coverage in floodplain maps, since such maps are
[[Page 10246]]
either not available for some areas of the country or the existing maps
are outdated. This general condition is consistent with our regulations
on the public interest review, specifically 33 CFR 320.4(g),
consideration of property ownership, 33 CFR 320.4(j), other Federal,
state, or local requirements, and 33 CFR 320.4(l), floodplain
management. Section 320.4(g)(1) states that an ``inherent aspect of
property ownership is the right to reasonable private use.'' Section
320.4(j)(2) states that the primary responsibility for land use
planning and zoning is with state and local governments. Section
320.4(l) requires consideration of whether practicable alternatives to
floodplain development are available, and if there are no practicable
alternatives, then impacts to human health, safety, and welfare, risks
of flood losses, and impacts to natural and beneficial aspects of
floodplains should be minimized to the maximum extent practicable. This
NWP general condition, as well as the other terms and conditions of the
NWPs, such as the acreage and linear foot limits for losses of waters
of the United States, are consistent with the principles in these
regulations because they require avoidance and minimization of adverse
effects on the aquatic environment. Executive Order 11988 states that
Federal agencies are to consider alternatives to ``avoid adverse
effects'' to floodplains, and ``minimize potential harm to or within
the floodplain''. The Executive Order also says that agencies should
also consider flood hazards in the permit programs they administer. The
adoption of general condition 10 into the NWP program is consistent
with Executive Order 11988. It is also consistent with Executive Order
13132, Federalism, because it recognizes the cooperative approach the
Federal government has taken with state and local governments for
floodplain management (i.e., federal review, by FEMA, of state or local
floodplain management requirements).
Two commenters suggested reinstating the provisions in the 2002
NWPs that prohibited discharges of dredged or fill material into waters
of the United States within mapped 100-year floodplains that would
result in above-grade fills for residential, commercial and
institutional developments, agriculture activities, recreational
facilities, stormwater management facilities, and mining activities.
We do not agree that the approach taken in the 2002 NWPs for fills
in 100-year floodplains should be reinstated. There are sufficient
safeguards in the NWPs, including the terms and conditions, pre-
construction notification requirements, and the authority for district
engineers to exercise discretionary authority and either require
individual permits or add conditions to NWP authorizations, to ensure
that NWP activities have minimal adverse effects on the aquatic
environment, including public interest review factors such as
floodplain values and flood hazards.
Three commenters said that using NWPs to authorize discharges of
dredged of fill material into waters of the United States will result
in increased flood damages in coastal and riparian areas by reducing
the amount of aquatic area available to absorb future floods that will
likely be larger and more frequent due to climate change. They
suggested increasing the application fee for NWPs to cover the
estimated cost of permit processing and to offset future economic
impacts of authorizing floodplain development.
The flood storage capacity of a coastal or inland floodplain is
dependent primarily on its topographic characteristics, including the
amount of land area available for storing flood waters. Uplands also
provide important ecological services such as flood storage. Flood
damage reduction is more effectively accomplished through land use
planning and zoning, which as discussed above, is primarily the
responsibility of state, local, and tribal governments. Charging
application fees for NWP pre-construction notifications or verification
requests is not being considered at this time.
This general condition is adopted as proposed.
GC 11. Equipment. We did not propose any changes to this general
condition. One commenter stated that the condition should be changed to
include streams, and not be limited to wetlands or mudflats.
The intent of this general condition is to ensure that heavy
equipment used in special aquatic sites such as wetlands and mudflats
does not cause more than minimal disturbances to their soils. The
substrate of stream beds is generally not considered to be soil, and
other general conditions such as general condition 12, soil and
sediment controls, are more appropriate to control the movement and
disturbance of stream bed sediments. District engineers may also add
activity-specific conditions to NWP authorizations, such as
requirements to use best management practices, to minimize disturbances
to stream beds.
This general condition is adopted as proposed.
GC 12. Soil Erosion and Sediment Controls. We did not propose any
changes to this general condition. One commenter said the general
condition should provide specific steps that will ensure protection of
downstream water quality during the construction of permitted
activities. Two commenters suggested adding requirements to prevent the
erosion of sediments resulting from harvesting shellfish. One commenter
stated that disturbed areas should be stabilized and vegetated areas
should be restored to pre-construction conditions or improved
conditions.
Specific best management practices and other measures to protect
downstream water quality are more appropriately addressed by
considering the activity-specific environmental setting and adopting
practices and measures that will control soil erosion and sediment
loads on the site of the authorized activity. District engineers may
add conditions to the NWP authorizations to require permittees to use
specific best management practices or other techniques to minimize soil
erosion and reduce transport of sediment to waters and wetlands. We do
not believe it is necessary to modify this general condition to address
sediment movement that may occur during shellfish harvesting
activities, because such movements are usually minor and temporary and
have minimal adverse effects on the aquatic environment. The
restoration of areas where temporary fills have been placed, including
revegetating those areas, is more appropriately addressed by general
condition 13, removal of temporary fills.
This general condition is adopted without change.
GC 13. Removal of Temporary Fills. We did not propose any changes
to this general condition. One commenter said the general condition
should require the removal of temporary fills during periods of low-
flow or no-flow so that there will be little or no downstream transport
of the fill material.
It would be inappropriate to require that temporary fills be
removed only during periods of low-flow or no-flow because it is not
always practicable to wait until water flows are low or absent. In
addition, more adverse effects to the aquatic environment may occur if
the permittee is required to wait until low flow or no flow conditions
exist. It is usually best to remove temporary fills as soon as possible
to minimize sediment loads to downstream waters or to nearby wetlands.
However, general condition 12, soil erosion and sediment controls,
encourages permittees to work in waters of the United States during
periods of low or no flow, when possible.
[[Page 10247]]
This general condition is adopted as proposed.
GC 14. Proper Maintenance. We did not propose any changes to this
general condition. One commenter recommended changing the general
condition to ensure that maintenance activities minimize impacts to
waters and maintain downstream water quality. Another commenter
suggested adding a provision that would require proper maintenance to
ensure compliance with applicable NWP general conditions as well as
conditions added to an NWP verification.
The original intent of this general condition was to ensure that
NWP activities are maintained so that they do not endanger public
safety. There are other general conditions that more directly address
minimization (e.g., general condition 23, mitigation) and water quality
(e.g., general condition 12, soil erosion and sediment controls, and
general condition 25, water quality). We agree that proper maintenance
should also be required to comply with the terms and conditions of an
NWP authorization, including any activity-specific conditions added to
an NWP authorization by the district engineer. For example, road
crossings should be properly maintained to continue complying with
general condition 2, aquatic life movements.
This general condition is adopted with the change discussed above.
GC 15. Single and Complete Project. We did not propose any changes
to this general condition. Two commenters recommend removing the term
single and complete project. Two commenters said the definition of
``single and complete project'' is flawed and that the acreage limit of
an NWP should apply to the entire project, not just each single and
complete project. One commenter suggested changing the general
condition to state that an NWP activity cannot be expanded or modified
at a later date. Two commenters said the general condition may allow
piecemealing under the NWPs.
It has been a long-standing principle in the NWP program that the
NWPs authorize single and complete projects. This general condition was
added to the NWPs in 2007 to make that clear to users of the NWPs. The
general condition is consistent with the NWP regulations at 33 CFR part
330 that were last revised in 1991, especially the definition at 33 CFR
330.2(i). Some of the NWPs issued in the past included terms and
conditions stating the NWP authorized single and complete projects. In
2007, we added a general condition to make it clear that all NWPs
authorize single and complete projects. As long as any proposed
expansions or modifications of a previously authorized NWP activity
comply with the terms of the NWPs, they can be authorized by NWP.
Expansions or modifications that are not separate single and complete
projects from the previously authorized activity have to comply with
the terms and conditions of the NWP, including any acreage or linear
foot limits that would apply to both the previously authorized activity
and the NWP activity included in the expansion or modification. If the
expansion or modification is determined by the district engineer to be
a separate single and complete project, then that expansion or
modification activity may qualify for separate NWP authorization. We do
not agree that this general condition results in piecemealing, because
the NWP authorization applies to each single and complete project.
District engineers will exercise discretionary authority and require
other forms of Department of the Army authorization if the use of the
NWP to authorize activities in a watershed or other geographic area
will result in more than minimal cumulative adverse effects on the
aquatic environment.
This general condition is adopted without change.
GC 16. Wild and Scenic Rivers. We proposed to modify this general
condition to clarify that information on these rivers should be
obtained from the specific Federal land management agency responsible
for the designated Wild and Scenic River or study river. One commenter
supported reissuing the general condition.
The general condition is adopted as proposed.
GC 17. Tribal Rights. We did not propose any changes to this
general condition. One commenter stated that the use of the NWPs will
be in violation of tribal treaty rights, tribal water quality
standards, and the Clean Water Act, and threaten salmon recovery
efforts in the Pacific Northwest.
Division engineers may impose regional conditions on the NWPs to
restrict or prohibit their use in waters where NWP activities may
result in more than minimal adverse effects on the aquatic environment
or any other public interest review factor, including fish and wildlife
values. We have directed our districts to initiate government-to-
government consultation with Tribes to develop and propose regional
conditions to protect tribal treaty resources and other resources of
importance to Tribes. Under this general condition, no activity may be
authorized by NWP if it impairs reserved tribal rights, such as
reserved water rights or treaty fishing and hunting rights. The
regional conditioning process helps identify those rights on a
geographic basis, so that prospective users of the NWPs and Corps
districts are aware of those tribal rights. Nationwide permit
activities must also comply with Tribal water quality standards, if
those activities involve discharges into waters covered by Tribal water
quality standards. Activities authorized by NWPs must also comply with
general condition 18, endangered species, which will help support the
recovery of listed salmon species.
The general condition is adopted as proposed.
GC 18. Endangered Species. We proposed to modify paragraph (a) of
this general condition to clarify that both direct and indirect effects
are to be taken into account when assessing whether an activity may
jeopardize the continued existence of a threatened or endangered
species or a species proposed for such designation, or destroy or
adversely modify the critical habitat of such species. In addition, we
proposed to modify paragraph (e) to include definitions of ``take'' and
``harm.'' Another proposed change was to add a new paragraph (f) to
provide prospective permittees with guidance on where they can obtain
information on the locations of listed species and their critical
habitat. One commenter expressed support for the proposed
modifications.
Several commenters requested clarification and definitions for the
terms ``directly'' and ``indirectly'' as used in paragraph (a). In
addition, several commenters objected to the addition of ``indirectly''
into the general condition, because they believe only direct effects
should be considered. Several commenters expressed concern that this
will result in the Corps evaluating direct and indirect effects that
are far from the NWP activity.
To provide clarification on the use of the terms ``direct'' and
``indirect'' in the context of general condition 18 and the NWPs in
general, we are adding definitions of ``direct effects'' and ``indirect
effects.'' The definitions were adapted from the definitions provided
in the Council of Environmental Quality's National Environmental Policy
Act regulations at 40 CFR 1508.8. The definition of ``indirect effect''
is also generally consistent with the Services' definition within the
definition of ``effects of the action'' at 50 CFR 402.02. The addition
of indirect effects to paragraph (a) of the general condition is
consistent with the U.S. Fish and Wildlife Service's and National
Marine Fisheries Service's Endangered Species
[[Page 10248]]
Act Section 7 regulations for considering whether a proposed activity
may jeopardize the continued existence of a listed species or may
result in the destruction or adverse modification of critical habitat
(see the definitions of ``destruction or adverse modification'' and
``jeopardize the continued existence of'' at 50 CFR 402.02). The Corps
is obligated by the section 7 consultation regulations to consider
indirect effects caused by proposed NWP activities, and appropriate
distances for such indirect effects will have to be determined on a
case-by-case basis by district engineers.
One commenter stated that the district engineer should evaluate the
Endangered Species Act (ESA) compliance documentation provided by the
Federal agency, and determine whether or not it is sufficient to
address ESA compliance for the NWP activity, or whether additional ESA
consultation is necessary. Two commenters recommended modifying
paragraph (b) to clarify that documentation of compliance with the
Endangered Species Act provided by a Federal agency will be sufficient
and that Corps review and concurrence with that section 7 consultation
is not required. One commenter said that paragraph (b) should make it
clear that a state agency operating under federal funding can also
provide the section 7 compliance documentation obtained by the Federal
agency that oversees its activities, and not have to reinitiate
consultation. Another commenter stated that when a non-Federal
permittee is operating on behalf of a Federal agency, they should
follow paragraph (b) of this general condition instead of paragraph
(c).
We have added a sentence to paragraph (b) to state that the
district engineer will review the other Federal agencies' documentation
of compliance with the Endangered Species Act and determine whether
that compliance is sufficient for the NWP activity, or whether
additional ESA consultation is necessary before the activity can be
authorized by NWP. We believe this provision is necessary to address
situations where the consultation conducted by the other Federal agency
does not adequately cover the direct and indirect effects on listed
species or designated critical habitat caused by the NWP activity. For
similar reasons, we do not agree that it would be appropriate to modify
paragraph (b) to explicitly state that state agencies may rely on ESA
compliance documentation obtained by the Federal agency that provides
them with funding for an activity. District engineers will generally
accept another Federal agency's compliance with section 7, but there
may be situations where that agency's section 7 compliance does not
adequately address the activities authorized by an NWP and their
effects on listed species or designated critical habitat. In those
situations, the district engineer may conduct additional section 7
consultation to satisfy the requirements of the Endangered Species Act.
If it is not sufficient, then the non-Federal permittee has to follow
paragraph (c) of this general condition instead.
One commenter said that this general condition places the
responsibility for determining whether a proposed activity may affect
listed species in the hands of the permittee. One commenter requested
clarification on how the ``might be affected'' threshold in the first
sentence is to be determined by an applicant, because it is unclear and
leaves room for broad interpretation. One commenter stated that the
word ``might'' in the second sentence of paragraph (c) should be
changed to ``may.''
It is the Corps' responsibility to make ``may affect''
determinations for the purposes of the ESA, and the ``might be
affected'' threshold is intended to be a cautionary threshold to give
district engineers the opportunity to evaluate proposed activities and
make their effect determinations. Prospective permittees are required
to submit pre-construction notifications if the proposed NWP activity
has the potential to affect a listed species, is in the vicinity of a
listed species, or is located in designated critical habitat. If the
Corps determines there will be no effect on listed species or
designated critical habitat, then ESA section 7 consultation is not
necessary. If the district engineer determines there will be an effect
that requires ESA section 7 consultation, then he or she will initiate
either formal or informal consultation with the U.S. Fish and Wildlife
Service and/or the National Marine Fisheries Service, as appropriate.
One commenter said paragraph (c) should clearly state that a pre-
construction notification is to be submitted if any listed species or
designated critical habitat might be affected or is in the vicinity of
the project, to ensure that another form of notification is not used.
Two commenters stated that 30 days is sufficient for the Corps to
notify the applicant of its ``may affect'' determination and asked why
the general condition allows 45 days. Two commenters suggested
modifying this general condition to state that if the prospective
permittee does not receive a response from the Corps within 45 days,
then he or she can assume that the Corps has determined that there is
``no effect'' on a listed species. In addition, one of these commenters
said that for projects that ``may affect'' a listed species, if the
section 7 consultation is not concluded within 135 calendar days of
initiation, the activity would be authorized to proceed as if a ``no
effect'' determination has been made.
We have modified the first sentence of paragraph (c) to state that
non-Federal permittees must submit a pre-construction notification if
the notification requirement is triggered. The 45-day period in
paragraph (c) of this general condition is intended to be consistent
with the 45-day review period for pre-construction notifications
provided in paragraph (a) of general condition 31, pre-construction
notification. Under paragraph (a) of general condition 31, a
prospective permittee may not begin an NWP activity that requires pre-
construction notification until he or she has been notified in writing
that the activity may proceed under the NWP, or 45 calendar days have
passed since the district engineer received a complete pre-construction
notification and no written notice has been provided to the applicant
by the district or division engineer. However, if pre-construction
notification was required by paragraph (c) of general condition 18, the
prospective permittee may not proceed with the NWP activity until
notified by the Corps, even if the 45 calendar days have passed,
because the Corps regulations at 33 CFR 330.4(f)(2) state that NWP
activities cannot commence until the requirements of the ESA have been
satisfied and the district engineer has notified the applicant that the
activity is authorized by NWP. It may take more than 135 days to
complete section 7 consultation, and the NWP activity may not proceed
until after consultation has been completed.
Two commenters requested clarification on what work the prospective
permittee is prohibited from conducting prior to the Corps making a
determination of ``no effect'' or until section 7 consultation is
completed. Two commenters requested clarification of the term
``vicinity'' in this general condition.
The work covered by the general condition and the Corps regulations
at 33 CFR 330.2(f) depends on the scope of analysis for the ESA section
7 consultation. The Corps follows the U.S. Fish and Wildlife Service's
and National Marine Fisheries Service's regulations at 50 CFR part 402
and Endangered Species Consultation Handbook to determine the section 7
scope of
[[Page 10249]]
analysis. The scope of analysis includes the direct and indirect
effects of the NWP activity, as well as the effects of other activities
that are interrelated and interdependent with that activity (see 50 CFR
402.02). The section 7 scope of analysis will be determined by district
engineers on a case-by-case basis. Generally, the applicant cannot
begin any work for which a Department of the Army permit is required
until the applicable ESA provisions have been satisfied. The term
``vicinity'' cannot be defined at a national level, since the extent of
the vicinity depends on a variety of factors, including the species
that might be affected, the proposed activity, and the environmental
setting.
One commenter said pre-construction notification should not be
required for NWP activities that require section 7 compliance, if they
would not otherwise require a pre-construction notification. This
commenter stated that the prospective permittee should only be required
to submit the appropriate documentation for section 7 consultation. One
commenter stated that this general condition should also apply to
state-listed threatened and endangered species.
This general condition is consistent with the NWP regulations at 33
CFR 330.4(f)(2), which requires the prospective permittee to notify the
district engineer if any Federally-listed endangered or threatened
species, or critical habitat, might be affected or is in the vicinity
of the project. The prospective permittee must submit the information
required for a pre-construction notification, so that the district
engineer will have sufficient information to commence evaluation of the
proposed activity and its effects on listed species or critical
habitat. It would be inappropriate to expand the scope of this general
condition to cover state-listed endangered and threatened species,
since that is a regional issue that is best addressed through state
laws and regulations. If a state is concerned about the potential
impacts of one or more NWPs on state-listed species, the state may ask
the Corps district to consider adding regional conditions to help
protect state-listed endangered or threatened species.
Two commenters recommended removal of the definitions of ``take''
and ``harm'' from this general condition and replacing those
definitions with a reference to the Endangered Species Act, to reduce
the potential for inconsistencies. One commenter said the Corps should
instead use the U.S. Fish and Wildlife Service's regulations to
determine what constitutes an effect or jeopardizes any threatened or
endangered species or their critical habitat.
The definition of ``take'' is identical to the definition in the
Endangered Species Act (see 16 U.S.C. 1532(19)). The definition of
``harm'' is the same as the definition in the U.S. Fish and Wildlife
Service's regulations (50 CFR 17.3) and the National Marine Fisheries
Service's regulations (50 CFR 222.102). The definitions of ``take'' and
``harm'' were added to this condition to provide clarification for
users of the NWPs, and facilitate compliance with the Endangered
Species Act.
One commenter stated that paragraph (f) should provide web links to
the Services' ESA Section 7 regulations and other documents. Another
commenter said the Corps should defer to the U.S. Fish and Wildlife
Service on effects determinations.
Paragraph (f) provides links to web sites for the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service to assist
prospective permittees with obtaining information on listed species and
other ESA documents. We do not believe it is necessary to provide a
link to the Services' section 7 consultation regulations at 50 CFR part
402 since it is the Corps responsibility to conduct section 7
consultation. It is also the Corps responsibility to make ``may
effect'' determinations for the purposes of the ESA and district
engineers have the option of soliciting advice from the U.S. Fish and
Wildlife and/or the National Marine Fisheries Service prior to making
their determinations.
One commenter recommended that surveys be conducted for state- and
Federally-listed species prior to the start of construction. Another
commenter said the lack of a requirement for surveys makes the pre-
construction notification requirement in this general condition
ineffective. One commenter said that ``objective science'' is needed to
identify habitats and species that may be affected by activities
authorized by NWPs. One commenter stated that the Corps must consider
the effects of climate change during the consultation process.
The need for surveys for Federally listed species is to be
determined by the district engineer on a case-by-case basis. It is not
possible to require surveys for the tens of thousands of activities
authorized by NWP each year. Project proponents are encouraged, but not
required to contact the U.S. Fish and Wildlife Service or the National
Marine Fisheries Service for assistance in determining whether listed
species or critical habitat might be affected by the proposed activity.
The effects of climate change on endangered and threatened species and
their critical habitat is more appropriately addressed through the
section 7 consultation process, since those effects are likely to be
site-specific.
The general condition is adopted with the modifications discussed
above.
GC 19. Migratory Bird and Bald and Golden Eagle Permits. We are
adding this new general condition to clarify that permittees are
responsible for complying with the Migratory Bird Treaty Act and the
Bald and Golden Eagle Protection Act, and obtaining any ``take''
permits that may be required under the U.S. Fish and Wildlife Service's
regulations issued under those two statutes. The Migratory Bird Treaty
Act and the Bald and Golden Eagle Protection Act differ from the
Endangered Species Act in that those two statutes and their
implementing regulations establish the project proponent as the
responsible party who has to apply to the U.S. Fish and Wildlife
Service for take permits, if such permits are required.
The U.S. Fish and Wildlife Service's implementing regulations that
establish general permit requirements for migratory birds permits at 50
CFR part 21 state that ``[n]o person may take, possess, import, export,
transport, sell, purchase, barter, or offer for sale, purchase, or
barter, any migratory bird, or the parts, nests, or eggs of such bird
except as may be permitted under the terms of a valid permit issued
pursuant to the provisions of this part and part 13 of this chapter, or
as permitted by regulations in this part, or part 20 of this subchapter
(the hunting regulations), or part 92 of subchapter G of this chapter
(the Alaska subsistence harvest regulations).'' The term ``person'' is
defined at 50 CFR 10.12 as ``any individual, firm, corporation,
association, partnership, club, or private body, any one or all, as the
context requires.'' These regulations do not identify a federal
permitting agency as a ``person'' responsible for obtaining a take
permit, where that federal agency is not actually carrying out the
activity that may result in the ``take'' of a migratory bird. Likewise,
the U.S. Fish and Wildlife Service's implementing regulations for the
Bald and Golden Eagle Protection Act at 50 CFR part 22 do not include
any provisions stating that Federal permitting agencies are responsible
for assisting project proponents in obtaining permits to authorize the
taking, possession, and transportation within the United States of bald
eagles and golden eagles and their parts, nests, and eggs.
[[Page 10250]]
Executive Order 13186 discusses the responsibilities of Federal
agencies to protect migratory bird for the purposes of the Migratory
Bird Treaty Act. The Executive Order applies only to those actions that
are directly carried out by Federal agencies (see Section 2, paragraph
(h)). Actions carried out by non-Federal entities with Federal
assistance are not subject to the Executive Order. Department of the
Army permits can be considered a form of Federal assistance since they
provide authorization to non-Federal entities to comply with Federal
laws such as Section 404 of the Clean Water Act and Section 10 of the
Rivers and Harbors Act of 1899.
This general condition is adopted.
GC 20. Historic Properties. We proposed to modify paragraph (c) of
this general condition to make a more general reference to the Corps
Regulatory Program's current procedures for compliance with Section 106
of the National Historic Preservation Act, since we are using Appendix
C to 33 CFR part 325, as well as various guidance documents to address
the Advisory Council on Historic Preservation's revised regulations at
36 CFR part 800.
In response to the February 16, 2011, proposal to reissue the NWPs,
including the proposed modification of this general condition, we
received comments on the Corps use of Appendix C and the current
guidance. Concerns regarding the use of Appendix C and the current
guidance are outside the scope of the NWP rule, and are not addressed
in this rule.
Several commenters asked whether an NWP authorization or
verification would be issued before a State Historic Preservation
Officer concurs to an effect determination or formalizes an agreement
regarding historic properties. One commenter stated that although the
NWP regulations provide that the Corps may issue an NWP before a
memorandum of agreement is executed, district engineers have, in some
cases, not issued NWP verifications without State Historic Preservation
Officer concurrence.
This general condition requires non-Federal permittees to submit
pre-construction notifications if the NWP activity may have the
potential to cause effects to historic properties. In such cases, the
district engineer will initiate section 106 consultation with the
appropriate State Historic Preservation Officer or Tribal Historic
Preservation Officer. Further consultation may be conducted with the
Advisory Council on Historic Preservation, if necessary. The
prospective permittee may not begin the NWP activity until the district
engineer notifies him or her that the section 106 consultation has been
completed (which may include execution of a memorandum of agreement to
address adverse effects or the concurrence of the State or Tribal
Historic Preservation Officer), or the activity has no potential to
cause effects to historic properties.
One commenter said the Corps should more closely follow paragraph
(b) of the general condition and not require redundant section 106
review on projects that are being undertaken by another Federal agency.
Three commenters suggested that the Corps section 106 responsibilities
should be satisfied if another Federal agency formally accepts
responsibility for conducting section 106 consultation and is the lead
for this responsibility through either a programmatic agreement or on a
project-by-project basis. One commenter said that duplicate regulatory
efforts are unnecessary, particularly when another Federal agency has a
lead role.
District engineers will generally accept another Federal agency's
compliance with section 106, but there may be situations where that
agency's section 106 compliance does not adequately address the
activities authorized by an NWP and their effects on historic
properties. In those situations, the district engineer may conduct
additional section 106 consultation to satisfy the requirements of the
National Historic Preservation Act. We have added a sentence to
paragraph (b) to address these situations.
One commenter said the general condition does not clearly specify
who is responsible for the identification and evaluation of historic
properties and determination of effects. Another commenter stated that
the general condition does not adequately ensure section 106 compliance
because the Corps may not receive enough information from permittees to
fully take into account the effect a project may have on a historic
property. This commenter also said that while paragraph (c) states that
prospective permittees may seek assistance from the State or Tribal
Historic Preservation Officer and from the National Register of
Historic Places, there is no requirement that an applicant consult with
these parties or that an applicant coordinate an effect determination
with a qualified professional with relevant historic properties
experience.
The Corps is ultimately responsible for determining compliance with
the requirements of Section 106 of the National Historic Preservation
Act. Non-Federal permittees are required to submit pre-construction
notifications if an NWP activity may have the potential to cause
effects to historic properties, and the district engineer will evaluate
those pre-construction notifications to determine if section 106
consultation is necessary. The general condition also states that
district engineers will make reasonable and good faith efforts to
identify historic properties and effects on those properties. The
district engineer may request additional information from the applicant
where necessary to evaluate potential effects of the activity on
historic properties or to initiate section 106 consultation. We cannot
require prospective permittees to seek assistance from a State Historic
Preservation Officer or a Tribal Historic Preservation Officer, search
the National Register of Historic Preservation, or consult with
qualified historic property professionals. However, this general
condition requires prospective permittees to provide a list of `` * * *
any historic properties listed, determined to be eligible for listing
on, or potentially eligible for listing on the National Register of
Historic Places, including previously unidentified properties,'' if
these properties may be affected. The permittee may obtain such
information from the State Historic Preservation Officer or Tribal
Historic Preservation Officer, the National Register of Historic
Places, or other sources of information on historic properties.
One commenter recommended providing language to clearly state when
a pre-construction notification is or is not required based on the
presence or absence of known historic properties. This commenter
suggested that if a prospective permittee independently determines that
no historic properties exist within the boundaries of the project area,
then pre-construction notification is not necessary. The commenter also
said that if the district engineer has to be notified because of
potential effects to historic properties, the notification should not
be in the form of a pre-construction notification.
We do not agree that the general condition should be modified to
explicitly state that prospective permittees do not have to submit pre-
construction notifications if they determine there are no known
historic properties within the boundaries of the project area. Such a
provision would be inappropriate, because there could be visual or
noise effects to historic properties outside of the project area that
have to be evaluated through the section 106 consultation process. The
[[Page 10251]]
current general condition is the proper approach, in which the
prospective permittee seeking NWP authorization is required to submit a
pre-construction notification if the proposed activity might have the
potential to cause effects to any historic property listed in, or
eligible for listing in, the National Register of Historic Places,
including previously unidentified properties. A pre-construction
notification is the appropriate mechanism to notify the district
engineer, because it contains information necessary to begin the
evaluation process, to determine whether the proposed activity
qualifies for NWP authorization.
One commenter requested clarification of what constitutes the
permit area for the purposes of consultation under Section 106 of the
National Historic Preservation Act. One commenter asked if a permittee
is obligated to have the Corps review an archaeologist's determination
that an activity will not impact an historic site. One commenter stated
that the general condition is unreasonable and violates federalism.
The criteria for identifying the permit area for the purposes of
section 106 are provided in paragraph 1(g) of Appendix C to 33 CFR part
325, in addition to paragraph 6(d) of the April 25, 2005, interim
guidance. The permit area will be determined on a case-by-case basis by
the district engineer. When a professional cultural resource manager or
archaeologist performs an investigation or makes an effect
determination, the Corps will generally consider the qualifications of
the professional and will review any documentation provided for the
purposes of section 106 compliance. This general condition is required
because the NWP program must comply with the National Historic
Preservation Act, a Federal law. Even though most NWP activities occur
on private land, compliance with applicable Federal laws is necessary.
This general condition would not interfere with any state or local
authorities.
This general condition is adopted with the modifications discussed
above.
GC 21. Discovery of Previously Unknown Remains and Artifacts. We
proposed this new general condition to address circumstances where
previously unknown or unidentified historical or archaeological remains
are discovered while conducting the NWP activity.
Several commenters expressed support for adding this general
condition to the NWPs. Two commenters said the condition should refer
to the district engineer instead of ``this office'' or ``we.'' We have
made these changes to be consistent with the language found in other
general conditions.
One commenter stated that the proposed condition relies on the
permittee, who is generally not qualified to make determinations
concerning remains and artifacts discovered during construction
activities. This commenter said that this general condition should
require all work to cease immediately and a qualified Corps
archaeologist should initiate required consultation.
We believe the revised language in the condition clearly indicates
that the Corps will initiate consultation in such instances where a
previously unknown historic or archaeological remain is discovered
during construction activities. The Corps does not have the authority
to prohibit all construction activities on the site in these cases.
Several commenters expressed concern with the use of the term
``artifact'' in this general condition, and some of them stated that it
can have too broad of a definition. One commenter requested
clarification as to what constitutes an ``artifact.'' Another commenter
said that this general condition should have thresholds to protect
significant artifact deposits while allowing work to continue when only
minor artifacts are discovered. One commenter suggested that we qualify
``artifacts'' by adding ``artifacts that are potentially eligible for
the National Register of Historic Places.''
The use of the term artifact is consistent with the definition of
``historic property'' at 36 CFR 800.16, which states that historic
properties include `` * * * artifacts, records, and remains that are
related to and located within [historic] properties.'' Procedures for
the protection of historic properties address all properties that may
be eligible for inclusion in the National Register of Historic Places,
and do not establish quantitative thresholds for when section 106
consultation must occur. The consultation threshold is an effects-based
threshold. We do not believe it is necessary to add text clarifying
that artifacts are those ``that are potentially eligible for the
National Register of Historic Places.'' Eligibility determinations will
be made after the discovery of artifacts and remains.
Three commenters stated that the proposed general condition is more
restrictive than general condition 3 provided in Appendix A to 33 CFR
part 325, the permit form for individual permits. These commenters said
the NWP general condition should not be more restrictive than the
standard permit condition. Two commenters suggested deleting this
general condition because provisions for the discovery of unknown
historic or archaeological remains are already codified in the NWP
regulations and in the Corps Regulatory Program's implementing
regulations for Section 106 of the National Historic Preservation Act.
The proposed general condition is similar to general condition 3 in
Appendix A of 33 CFR part 325. For this new NWP general condition, we
have taken the text of general condition 3 in Appendix A and modified
it to include Tribes. We have also modified it by adding a provision
requiring, to the maximum extent practicable, avoidance of construction
activities that could affect the remains and artifacts. We believe the
latter provision is necessary to protect those artifacts and remains as
much as possible. The addition of Tribes to the condition reflects
current section 106 procedures. This general condition can be more
restrictive than the standard permit condition in Appendix A because
the NWPs may only be used to authorize activities with minimal adverse
effects on the aquatic environment and other applicable public interest
review factors. While 33 CFR 330.4(g)(3) contains a similar provision,
we believe the general condition is needed to comply with applicable
cultural resource laws.
Several commenters expressed concern with requiring the permittee
to stop work once previously unknown historic or archaeological remains
are found. One commenter said this provision is too unpredictable and
may result in significant delays. One commenter suggested adding time
frames to this general condition to provide predictability and assure
permittees that the Corps will proactively seek to resolve any
outstanding historic property issues. One commenter recommended
clarifying this general condition to state that if a discovery occurs,
work should cease only in the area containing remains or artifacts. One
commenter objected to the work stoppage provision, stating that once
construction begins, substantial investment has been made and the
requirement to stop construction indefinitely upon the discovery of a
potentially insignificant archaeological resource represents an
unacceptable financial risk. This commenter recommended that if we keep
this provision as proposed, we impose time frames on identification and
consultation in order to provide some predictability to the process.
We believe it is necessary to include a provision in this general
condition to require the permittee, once any
[[Page 10252]]
previously unknown historic, cultural, or archeological remains or
artifacts are found while conducting the NWP activity, to avoid
construction activities that could affect those remains and artifacts,
to the maximum extent practicable. We recognize that in some
circumstances it may not be possible to avoid further construction
activities that might affect the remains and artifacts, because those
construction activities may have to be completed for safety or
minimizing erosion and sedimentation. In addition, the Corps does not
have the legal authority to stop construction activities. We have
replaced the phrase ``stop activities that would adversely affect
those'' with ``avoid construction activities that could affect the'' to
protect those remains and artifacts as much as possible while
preventing other adverse environmental effects from occurring, such as
the installation of sediment and erosion control devices to reduce or
eliminate sediment inputs to wetlands, streams, and other waters while
the necessary Federal, Tribal, and state coordination is conducted. It
would not be appropriate to impose timeframes in this general
condition, because the amount of time to complete coordination will
vary across the country and from case to case. We cannot remove the
provision for avoiding construction activities that could affect the
remains and artifacts, because Section 106 of the National Historic
Preservation Act and other cultural resource laws impose binding
requirements on the Corps and other federal agencies.
A few commenters said this general condition should not apply to
other Federal agencies with section 106 responsibilities if they are
the permittees, since their implementing regulations already contain
provisions for the discovery of previously unknown historic or
archaeological remains during construction.
We agree that in cases where another federal agency is the lead
Federal agency for purposes of compliance with Section 106 of the
National Historic Preservation Act, that Federal agency should follow
its procedures for addressing post-review discoveries. However, the
Corps also has section 106 responsibilities if the NWP activity has the
potential to cause effects to an historic property. As long as the lead
Federal agency is in compliance with section 106 requirements and this
compliance satisfies section 106 requirements for the NWP
authorization, the Corps can rely on the lead Federal agency's
compliance efforts. Upon notification, the district engineer will let
the other Federal agency know if any further action by the Corps is
necessary.
This general condition is adopted with the modifications discussed
above.
GC 22. Designated Critical Resource Waters. We proposed to modify
this general condition to clarify the types of waters subject to the
general condition by changing how NOAA's marine sanctuaries are
described, which categories of critical resource waters are always
subject to this general condition, and how additional critical resource
waters can be designated by a district engineer after a public notice
and comment process. We also proposed to add proposed new NWPs A and B,
now designated NWPs 51 and 52, respectively, to the list of NWPs in
paragraph (a).
Several commenters objected to allowing state-designated
outstanding national resource waters to be automatically included as
designated critical resource waters because of varying designations and
criteria across the states. These commenters also said that a state's
process to designate such waters may not include the opportunity for
public comment and that the designations carry no legal basis. In
addition, commenters indicated there are inconsistent approaches by
different agencies within the same state for designating outstanding
national resource waters. Some commenters said that other state
programs, such as those that are responsible for Clean Water Act
Section 401 water quality certifications, are capable of adequately
addressing the effects of the activity to these state designated
waters. One commenter requested a definition of outstanding national
resource waters. Two commenters said such waters should have a
particular environmental or ecological significance. Two commenters
objected to including outstanding national resource waters
automatically because that designation may be based only on
recreational characteristics. Three commenters suggested that the
general condition should be changed to require the district engineer to
designate such waters only after issuing a public notice and soliciting
comment, and then obtaining concurrence from the state.
This general condition was first adopted in the NWPs issued on
March 9, 2000 (see 65 FR 12872). In the preamble to the 2000 NWPs, we
stated that `` * * * outstanding national resource waters must be
identified and approved by the district engineer after public notice
and opportunity for comment'' (65 FR 12873, third column). In that
notice, we also said that state or local officials should not be able
to designate additional waters as critical resource waters without the
district engineer providing an opportunity for public notice and
comment. We are modifying this general condition to return to our
original approach, since there is much disparity across the country in
how outstanding national resource waters are identified and designated.
Because of the inconsistency in how outstanding national resource
waters are designated, we believe it is necessary to provide the public
with the opportunity to review and comment on those waters before they
become adopted as designated critical resource waters for the purposes
of this general condition. Outstanding national resource waters should
have environmental and ecological significance, and their designation
should not be based solely on recreational uses or characteristics.
Three commenters expressed concern that providing district
engineers the ability to designate, after notice and opportunity to
comment, additional waters officially designated by a state as having
particular environmental or ecological significance would lead large
areas of state-designated waters of all types to be removed from being
eligible for the NWPs. One commenter said this general condition should
be removed because it violates the principles of federalism in
Executive Order 13132. This commenter said a district engineer could
use state stream designations to identify critical resource waters and
override the rights of states to interpret and enforce their own laws.
We are retaining the provision that allows district engineers to
designate additional critical resource waters after notice and
opportunity for public comment. That process is not substantially
different from using the regional conditioning process to restrict or
prohibit the use of NWPs in specific waters or geographic areas, which
can be delegated by division engineers to district engineers. This
general condition is not contrary to Executive Order 13132. The general
condition helps support the objective of the Clean Water Act, which is
to restore and maintain the physical, chemical, and biological
integrity of the Nation's waters. In addition, this general condition
helps ensure that the NWPs authorize only those activities that have
minimal individual and cumulative adverse effects on the aquatic
environment. This general condition only applies to waters and wetlands
that are both waters of the United States and designated critical
resource waters.
One commenter objected to removing state natural heritage sites
from
[[Page 10253]]
automatic inclusion in the general condition due to their interest in
maintaining the existing protection the general condition provides to
areas of unique ecological significance. Another commenter supported
the proposed change. One commenter said state natural heritage sites
should not be automatically considered critical resource waters because
the term is undefined. Another commenter suggested that state natural
heritage sites should be limited to those sites that are identified
through state legislation. One commenter opposed including state
natural heritage sites as potentially being classified as critical
resource waters and suggested that the Corps continue to defer to State
Historical Preservation Officers to determine effects on historic
sites.
While we understand the perspective that state natural heritage
sites should be automatically subject to this general condition, we
also understand the need for transparency and clarity for the regulated
public. Given the variability in waters and wetlands that may be
designated as state natural heritage sites, and the different processes
that may be used by states to designate their natural heritage sites,
we believe it is necessary to provide a public notice and comment
process before including state natural heritage sites as designated
critical resource waters under this general condition. This approach
will help improve compliance with the NWP conditions, because it will
make project proponents aware of certain restrictions for the use of
specific NWPs. The protection of historic properties is more
appropriately addressed through general condition 20, historic
properties.
One commenter said the use of an NWP should not be prohibited in
critical resource waters when the agency responsible for managing those
critical resource waters is conducting the activity. This commenter
also suggested that the general condition should not prohibit the use
of NWPs, but instead the NWPs listed in paragraph (a) should be moved
to the notification provision of paragraph (b) and also require the
approval of the agency that manages the designated critical resource
water, similar to the approach taking in general condition 16, wild and
scenic rivers. One commenter supported protecting critical resource
waters but suggested that protection can be provided instead by
requiring prior written approval through a state's water quality
agency. Another recommended requiring water quality certifications for
the NWPs listed in paragraph (b) instead of pre-construction
notifications, to ensure that the activities authorized by those NWPs
result in minimal adverse effects on designated critical resource
waters and adjacent wetlands.
The purpose of the prohibition in paragraph (a) of this general
condition is to exclude the use of those NWPs in critical resource
waters that have the potential to result in more than minimal adverse
effects on the aquatic environment. The status of the entity who would
be conducting the proposed discharge of dredged or fill material is not
relevant to the minimal adverse effects determination; instead, it is
the environmental effects of the discharge that have to be considered.
Discharges of dredged or fill material into waters of the United States
that are designated critical resource waters, as well as their adjacent
wetlands, may be authorized by other forms of Department of the Army
permits, such as individual permits or regional general permits. Wild
and Scenic Rivers referenced in general condition 16 are those waters
that have been designated as such in accordance with the Wild and
Scenic Rivers Act of 1968, a federal law. Similar to state-listed
threatened and endangered species, the NWP program cannot be used to
ensure compliance with other state or local laws. However, an NWP
authorization does not obviate the need for the permittee to obtain
other federal, state, or local authorizations, including specific
authorizations related to state-protected critical resource waters. The
water quality certification process would not be an appropriate
alternative to the pre-construction notification requirement in
paragraph (b) of this general condition because the evaluation of an
NWP pre-construction notification involves consideration of more than
water quality issues.
One commenter suggested that pre-construction notifications for NWP
activities listed in paragraph (b) proposed in waters identified as
critical resources through state processes, should only be coordinated
with state authorities. This commenter said the pre-construction
notification for simple maintenance and improvement projects creates
unnecessary work for the project proponent and the Corps. One commenter
recommended adding a list of conservation areas to the general
condition, with a requirement that permittees must be in compliance
with the site specific management plan of the conservation area.
The district engineer will evaluate the pre-construction
notification for an NWP listed in paragraph (b) of this general
condition, to determine if the proposed activity will result in minimal
adverse effects on the aquatic environment, including the critical
resource water and its adjacent wetlands. Agency coordination is only
required for NWP activities that result in the loss of greater than \1/
2\-acre of waters of the United States. None of the NWPs listed in
paragraph (b) have the 300 linear foot limit for the loss of stream
beds, so the agency coordination threshold for requests for written
waivers for the loss of greater than 300 linear feet of intermittent or
ephemeral stream bed would not be triggered. We do not agree that
conservation areas should be added to the general condition at the
national level, because what constitutes a ``conservation area'' is
likely to vary across the country. District engineers may add specific
aquatic conservation areas that meet the definition of critical
resource waters to this general condition after a public notice and
comment process.
The general condition is adopted as proposed.
GC 23. Mitigation. We proposed to modify paragraph (g) to be more
consistent with the compensatory mitigation regulations at 33 CFR part
332, by replacing the word ``arrangements'' with ``programs'' in
describing in-lieu fee programs and replacing the phrase ``activity-
specific'' with ``permittee-responsible'' when referring to
compensatory mitigation implemented by the permittee. In addition, we
proposed to add a provision stating that for activities resulting in
the loss of marine or estuarine resources, permittee-responsible
compensatory 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. Finally, we proposed to revise the last sentence of
paragraph (g) to state that the party responsible for providing the
required permittee-responsible mitigation, including any required long-
term management, is to be identified in conditions added to the NWP
authorization. Several commenters supported these proposed changes. One
commenter commended the Corps for the flexibility in determining
compensatory mitigation requirements.
One commenter stated that paragraph (a) should indicate that when
another Federal agency has determined that the activity has been
designed to avoid and minimize impacts the district engineer will defer
to that agency's determination. Several commenters said this general
condition does not adequately stress avoidance of aquatic resources
before compensatory mitigation is considered. One
[[Page 10254]]
commenter also said the general condition should refer to the measures
provided in the 404(b)(1) Guidelines for details on avoiding and
minimizing impacts. This commenter also suggested that the prospective
permittee should be required to document the steps taken to avoid and
minimize impacts, and describe them in the pre-construction
notification. In addition, the commenter said that the NWPs should only
authorize discharges of dredged or fill material into special aquatic
sites when the activity is water dependent or in cases where the
prospective permittee clearly demonstrates there are no practicable
alternatives available. One commenter stated that the practicable
alternative test in the Section 404(b)(1) Guidelines should be used for
NWP activities.
The district engineer determines compliance with the terms and
conditions of the NWPs, including whether the permittee has avoided and
minimized adverse effects to waters of the United States to the maximum
extent practicable on the project site. The general condition imposes
substantive requirements to avoid and minimize adverse effects to
waters of the United States, and district engineers will review pre-
construction notifications and determine whether project proponents
have satisfied the avoidance and minimization requirement, as well as
other applicable provisions of this general condition. District
engineers will also determine if proposed activities result in minimal
adverse effects on the aquatic environment and qualify for NWP
authorization. General permits only need to comply with section 230.7
of the 404(b)(1) Guidelines, which provides the evaluation process for
the issuance of Clean Water Act Section 404 general permits, including
NWPs. Individual activities that qualify for NWP authorization do not
have to implement the avoidance and minimization measures provided
elsewhere in the 404(b)(1) Guidelines, although they must still comply
with the avoidance and minimization provisions of this general
condition, which are designed to ensure that the NWPs collectively
comply with the 404(b)(1) Guidelines. Requiring the permittee to
provide documentation of avoidance and minimization measures taken
would result in unnecessary paperwork requirements, and the current
information requirements for complete pre-construction notifications
are sufficient. Section 230.7(b)(1) of the 404(b)(1) Guidelines states
that the alternatives analyses required by section 230.10(a) are not
directly applicable to general permits.
One commenter stated the general condition should address other
aspects of mitigation, such as performance standards, monitoring, and
contingency actions. One commenter said the general condition does not
comply with 33 CFR part 332 because it does not provide any criteria or
performance standards for compensatory mitigation. One commenter
indicated that monitoring must be required for all mitigation.
We have made several changes to this general condition to make it
consistent with the applicable provisions in 33 CFR part 332. We have
also added a sentence to paragraph (c)(1) of this general condition to
state that compensatory mitigation projects to offset losses of aquatic
resources must comply with the applicable provisions of 33 CFR part
332. The general condition provides basic requirements, since the
specific details for compensatory mitigation projects (e.g.,
objectives, ecological performance standards, monitoring requirements,
and site protection) are determined on a case-by-case basis by district
engineers. We acknowledge that monitoring is required for all
compensatory mitigation projects, in accordance with 33 CFR 332.6.
Two commenters stated that the district engineer should have
discretion to determine what, if any, compensatory mitigation is
required for projects impacting more than \1/10\-acre of wetlands, as
in some cases, compensatory mitigation may not be necessary, and
mitigation ratios of less than one-for-one may be adequate. One
commenter said that the Corps cannot require mitigation for NWP
activities that result in minimal adverse environmental effects, even
if there are wetland losses greater than \1/10\-acre, and requested
that the Corps change the first sentence of paragraph (c) to state that
the mitigation requirement can be waived if the district engineer
determines that the impacts of the proposed activity are minimal or
some other form of mitigation would be more environmentally
appropriate. Several commenters stated that compensatory mitigation
should be required for all NWP activities, and all resource types,
regardless of the amount of impact.
The 2008 compensatory mitigation rule (33 CFR part 332, as
published in the April 10, 2008, edition of the Federal Register (73 FR
19594)) established standards and criteria for all compensatory
mitigation projects required to offset losses of aquatic resources. The
standards and criteria apply to all sources of compensatory mitigation,
including permittee-responsible mitigation, mitigation banks, and in-
lieu fee programs. As stated in 33 CFR 332.1(b), the 2008 rule does not
change the circumstances under which compensatory mitigation is
required. The NWP regulations at 33 CFR 330.1(e)(3) stipulate when
compensatory mitigation is to be required for NWP activities--that is,
when the district engineer determines the individual and cumulative
adverse environmental effects are more than minimal. The requirements
at 33 CFR part 332 may affect the practicability of providing
compensatory mitigation for all NWP activities that result in the loss
of \1/10\-acre to \1/2\-acre and require pre-construction notification,
especially if the NWP activity is not in the service area of an
approved mitigation bank or in-lieu fee program with released or
advance credits available at the time the NWP pre-construction
notification is being evaluated by the district engineer.
In the 2008 mitigation rule, we also discussed our concerns about
the failure rates of on-site compensatory mitigation, which are often
not ecologically successful because of nearby changes in land use (see
73 FR 19601). We believe it would be inappropriate to require users of
the NWP to provide small on-site compensatory mitigation projects to
offset losses caused by NWP activities if they are likely to fail. If
the district engineer determines that on-site mitigation is likely to
be ecologically successful, he or she may require that compensatory
mitigation. It may not be practicable to provide off-site compensatory
mitigation if the activity is not in the service area of an approved
mitigation bank or in-lieu fee program with available credits. It is
also important to recognize that not all areas of the country have
approved mitigation banks or in-lieu fee programs. If the district
engineer determines that compensatory mitigation is necessary to ensure
than an NWP activity results in minimal individual and cumulative
adverse effects on the aquatic environment, and there are no
practicable and ecologically successful compensatory mitigation options
available, then he or she will exercise discretionary authority and
notify the project proponent that another form of Department of the
Army authorization is required, such as an individual permit.
To be consistent with 33 CFR 330.1(e)(3), and to take into account
how the requirements of 33 CFR part 332 affect the practicability for
providing compensatory mitigation for small wetland losses, we have
modified paragraph (c) of this general condition
[[Page 10255]]
to state that the district engineer will evaluate the pre-construction
notification and may not require compensatory mitigation for losses of
greater than \1/10\-acre of wetlands if he or she determines that
either alternative mitigation (such as additional avoidance and
minimization of impacts to waters of the United States on the project
site) would ensure that the NWP activity results in minimal individual
and cumulative adverse effects on the aquatic environment, or the
impacts of the proposed activity are minimal without compensatory
mitigation and determines the compensatory mitigation would not be
required. We do not agree that compensatory mitigation should be
required for all activities authorized by NWPs. For example,
compensatory mitigation may not be needed to ensure that the authorized
activity results in minimal adverse effects on the aquatic environment.
In addition, not all NWP activities require pre-construction
notification, and the pre-construction notification thresholds are
established so that those NWP activities that generally do not result
in more than minimal adverse effects on the aquatic environment can
proceed without review by the district engineer. To address exceptions
in specific waters or geographic areas, division engineers may add
regional conditions to an NWP to lower its pre-construction
notification threshold or require pre-construction notification for all
activities authorized by that NWP.
One commenter stated that greater than one-for-one mitigation
ratios must be required, stream mitigation ratios should address both
areal and linear extent, and waivers of the mitigation ratio should not
be allowed. One commenter stated that stream or open water mitigation
should have a mandatory mitigation ratio of one-for-one for in-kind
replacement and two-for-one riparian habitat improvement for any
impacts exceeding 50 feet of any stream or waterbody. One commenter
stated that mitigation should be required for all stream impacts that
exceed 100 feet. One commenter stated that appropriate in-kind
mitigation should be provided for any wetland or stream impacts. One
commenter also stated that out-of-kind mitigation contradicts the no-
net-loss policy.
The amount of compensatory mitigation necessary to ensure that the
NWP activity results in minimal adverse effects on the aquatic
environment is determined by the district engineer on a case-by-case
basis by applying the provisions at 33 CFR 332.3(f). The district
engineer will determine whether compensatory mitigation for losses of
stream bed should be required for a particular NWP activity. We do not
agree that losses of stream bed should have a threshold for determining
when compensatory mitigation should be required for those losses. We
have modified paragraph (d) of this general condition by replacing the
word ``restoration'' with ``rehabilitation, enhancement, or
preservation'' to be consistent with 33 CFR 332.3(e)(3), which
recognizes streams as ``difficult-to-replace'' resources.
Out-of-kind mitigation does not contradict the ``no overall net
loss'' goal for wetlands, since out-of-kind wetlands mitigation may be
environmentally preferable if another wetland type provided as
compensatory mitigation would benefit the watershed more than simply
providing in-kind replacement of the wetland being lost as a result of
the NWP activity.
One commenter also requested that consideration be given to the
cumulative impacts of wetland and stream disturbance. Several
commenters said that mitigation cannot be used to bring the adverse
effects of the NWPs to a minimal level. Some of these commenters stated
that mitigation is not predictable and in many cases is not successful.
Two commenters stated that if an NWP activity requires mitigation, then
by definition it has more than minimal adverse environmental effects.
Cumulative effects to wetlands and streams are evaluated in the
decision documents that are prepared for each NWP by Corps
Headquarters, as well as the supplemental decision documents approved
by division engineers. Wetland restoration, enhancement, establishment,
and preservation activities, and stream rehabilitation, enhancement,
and preservation activities (including and riparian area restoration,
enhancement, and preservation) can offset losses of aquatic resource
functions provided by waters of the United States that are impacted by
activities authorized by NWPs. District engineers evaluate compensatory
mitigation proposals provided by prospective permittees, to determine
whether the compensatory mitigation project will be ecologically
successful and be sufficient to offset losses of waters of the United
States to ensure that the net adverse effects on the aquatic
environment are minimal. The approved mitigation plan must include the
applicable components listed in 33 CFR 332.4(c)(2)-(14), including
ecological performance standards used to determine if the compensatory
mitigation project is achieving its objectives.
The party responsible for providing the compensatory mitigation
must implement the approved mitigation plan, and if it is determined
that changes are needed to improve ecological success, request approval
of those modifications. After the approved compensatory mitigation
project is implemented, monitoring is required on a regular basis and
monitoring reports must be submitted to the district engineer. The
monitoring reports are reviewed by the district engineer and if there
are deficiencies in the compensatory mitigation project, the district
engineer will work with the responsible party to determine what actions
are necessary to fix the compensatory mitigation project so that it
will meet its original objectives or comparable objectives that are
acceptable to the district engineer. If it is not possible to take
adaptive management measures to remediate the compensatory mitigation
project, then the district engineer may require alternative
compensatory mitigation.
Several commenters said that applicants should be required to
submit detailed mitigation plans with their pre-construction
notifications and conceptual mitigation proposals are not sufficient.
Several commenters also stated that the public should be provided the
opportunity to review mitigation plans and provide comments on whether
the impacts will be minimal.
We have added a new paragraph (c)(1) to state that the prospective
permittee is responsible for proposing an appropriate compensatory
mitigation option, if the district engineer determines that
compensatory mitigation is needed to ensure that the activity results
in minimal adverse effects on the aquatic environment. Another new
provision, paragraph (c)(3) of this general condition, states that the
mitigation plan may be conceptual or detailed, which is consistent with
the Corps regulations at 33 CFR 332.4(c)(1)(ii). We do not believe that
public review of compensatory mitigation proposals is necessary.
District engineers have the expertise to review compensatory mitigation
plans, evaluate their potential for ecological success, and determine
whether they will offset losses of aquatic resource functions so that
the NWP activity, after considering the required compensatory
mitigation, will result in minimal individual and cumulative adverse
effects on the aquatic environment.
One commenter asked whether functional assessments used to assess
aquatic resources must be approved by the Corps. One commenter said the
[[Page 10256]]
general condition should provide clearer requirements to reduce the
amount of discretion to be exercised by district engineers. One
commenter stated that compensatory mitigation should be linked to the
impacts of the project, and both the compensatory mitigation project
and the monitoring requirements should last as long as the authorized
impacts.
Functional assessments do not have to be formally approved by the
Corps, although district engineers may determine that a functional
assessment method proposed to be used for a particular aquatic resource
or activity is not appropriate. This general condition provides basic
principles for addressing mitigation requirements for NWP activities,
because it is not possible to cover all possible mitigation options and
requirements at the national level. Most activities authorized by NWPs
result in the permanent loss of waters of the United States, and it is
not practical or necessary to require permanent monitoring of
compensatory mitigation projects. The Corps regulations require long-
term protection of compensatory mitigation project sites (see 33 CFR
332.7(a)(1), and compensatory mitigation projects should be self-
sustaining. Some compensatory mitigation projects may require long-term
management, if the district engineer determines that long-term
management is appropriate and practicable.
One commenter said that paragraph (f) should be revised to include
the option of restoring riparian areas next to open waters. In
addition, the commenter stated that the restoration or establishment of
riparian areas should not be required on both banks of a stream,
because in some cases the permittee may not have authority or legal
interest in the land to restore or establish riparian areas on both
sides of the stream. This commenter noted that there may be conflicting
easements, roads, levees, or other structures in the proposed riparian
area, or the area may not support riparian vegetation. One commenter
stated that the Corps is inconsistent with use of the term buffer and
riparian areas and that buffer is more inclusive and should be used in
the general condition instead of riparian areas.
We have added the term ``restoration'' to the first sentence of
paragraph (f) to make it clear that the riparian area may either be
restored or established next to open waters. The general condition does
not require riparian areas to be established on both sides of a stream.
The fifth sentence of this paragraph provides a recommended width for
riparian areas, based on a presumption that the project proponent can
restore or establish riparian areas on both sides of the stream. 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, and we have added language to paragraph (f) of general
condition 23 to clarify that this can be acceptable compensatory
mitigation. The proposal did not use the term ``buffer'' and paragraph
(f) focuses on providing mitigation next to open waters through the
restoration or establishment, maintenance, and legal protection of
riparian areas.
One commenter requested that we include the phrase ``for resource
losses'' at the end of the parenthetical in paragraph (b) to be
consistent with 33 CFR part 320.4(r)(1). Two commenters stated that it
is difficult to provide long-term maintenance of mitigation sites for
weed control and invasive species. One commenter asked that definitions
for rectifying and reducing be added to the general condition.
We have added ``for resource losses'' after the word
``compensating'' in paragraph (b). Before requiring long-term
management for compensatory mitigation sites, district engineers will
evaluate whether such a requirement would be practicable, as well as
appropriate and necessary. We recognize that it may not be appropriate
and practical to require long-term management for small permittee-
responsible compensatory mitigation project sites, so we have modified
paragraph (g) to make it clear that long-term management is necessary
only when the district engineer adds conditions to an NWP authorization
to require long-term management for the compensatory mitigation
project. We do not believe it is necessary to provide definitions of
the terms ``rectifying'' and ``reducing'' since the commonly understood
definitions of these terms are sufficient.
One commenter requested the removal of paragraph (h), stating that
it creates confusion and sometimes results in mitigation being required
for non-jurisdictional activities, such as non-mechanized, above-ground
landclearing for overhead electric transmission lines. Another
commenter said that paragraph (h) implies that the Corps has authority
over activities it does not regulate, such as the removal of woody
vegetation from a wetland when there is no discharge of dredged or fill
material into waters of the United States. One commenter requested
clarification of the circumstances under which the Corps would require
compensatory mitigation for the conversion of forested and scrub shrub
wetlands, and said the phase ``may be required'' should be changed to
``shall be required.'' This commenter also said that no waivers should
be allowed for mitigation for projects within a utility right of way
for forested and scrub shrub wetlands that are permanently converted to
emergent wetlands.
Paragraph (h) is being retained, to make it clear that district
engineers may require compensatory mitigation for permanent losses of
specific aquatic resource functions that are caused by discharges of
dredged or fill material into waters of the United States or other
regulated activities. Paragraph (h) is part of a general condition that
applies only to activities authorized by NWPs. We do not agree that the
phrase ``may be required'' should be replaced with ``shall be
required'' because it is the district engineer's discretion whether to
require compensatory mitigation for losses of specific aquatic resource
functions.
One commenter recommended adding a new paragraph to this general
condition to clarify that any mitigation requirements must be limited
to a single and complete linear project. This commenter said that
compensatory mitigation should only be required if a specific crossing
of a waterbody triggers paragraph (c), (d), or (f) of this general
condition, not for other crossings that do not trigger pre-construction
notification requirements or mitigation requirements.
We do not believe such an addition to this general condition would
be appropriate or necessary. As discussed elsewhere in this notice,
district engineers evaluate the entire linear project, even though each
separate and distant crossing of waters of the United States may
qualify for a separate NWP authorization. District engineers may
require compensatory mitigation for all temporary and permanent losses
of waters of the United States. District engineers are required to
consider cumulative adverse effects in reviewing NWP pre-construction
notifications, not just adverse effects from the specific single and
complete project to which the notification applies.
One commenter stated that this general condition does not
adequately convey the hierarchy of mitigation preference established by
33 CFR part 332. One commenter stated that in-lieu fee arrangements
must not be used unless the arrangements comply with the requirements
of the in-lieu fee guidance. One commenter stated that
[[Page 10257]]
remining of lands results in a net benefit to the aquatic resources,
and the Corps should consider this remining as adequate compensatory
mitigation and should consider if it is appropriate to create an in-
lieu fee program for remining of previously mined areas.
We do not believe it is necessary to include the mitigation options
evaluation framework provided in 33 CFR 332.3(b), since that regulation
applies to all forms of Department of the Army permits, and the general
condition explicitly states that mitigation must comply with part 332.
In-lieu fee programs used to provide compensatory mitigation for NWP
activities must comply with the applicable provisions in 33 CFR 332.8,
unless the district engineer determined that they qualified for the
extension of the grandfathering provision provided at 33 CFR
332.8(v)(2). District engineers will determine on a case-by-case basis
whether compensatory mitigation should be required for remining
activities authorized by NWP.
This general condition is adopted with the modifications discussed
above.
GC 24. Safety of Impoundment Structures. We proposed to add this
new general condition to the NWPs. We received no comments on the
proposed general condition. The general condition is adopted as
proposed.
GC 25. Water Quality. We did not propose any changes to the general
condition. Two commenters recommended modifying this general condition
to state that activities are not authorized by NWP if the state denies
water quality certification, unless the project proponent obtains an
individual water quality certification or water quality certification
is waived. One commenter suggested adding a provision to state that the
district engineer will determine, after a reasonable amount of time
(generally 60 days) from the date an application for an individual
water quality certification was submitted by the project proponent,
that water quality certification is waived unless the Corps and the
water quality certification agency agree that additional time is
needed. A few commenters said that individual permits should be
required for activities in any waters identified as 303(d) listed
streams.
We believe that the current wording of this general condition is
sufficient to make it clear that an individual water quality
certification or waiver must be obtained if the state, Tribe, or EPA
had not previously issued water quality certification for an NWP. We
also do not believe it is necessary to provide a specific timeframe in
the general condition to reflect the language in 33 CFR 330.4(c)(6),
since those timeframes may vary by Corps district because of local
agreements with water quality certification agencies. There are a
variety of causes of stream impairment for 303(d) listings other than
discharges of dredged or fill material (e.g., nutrients, metals,
sedimentation, temperature, bacteria, pH, toxics). Reversing those
causes of impairment is more appropriately addressed through other
Clean Water Act programs.
This general condition is adopted as proposed.
GC 26. Coastal Zone Management. We received no comments on the
proposed general condition. The general condition is adopted as
proposed.
GC 27. Regional and Case-by-Case Conditions. We received no
comments on the proposed general condition. The general condition is
adopted as proposed.
GC 28. Use of Multiple Nationwide Permits. We received no comments
on the proposed general condition. The general condition is adopted as
proposed.
GC 29. Transfer of Nationwide Permit Verifications. We received no
comments on the proposed general condition. The general condition is
adopted as proposed.
GC 30. Compliance Certification. We proposed a minor change to this
general condition to clarify that we will provide the permittee with
the necessary documentation to complete and return to the Corps as the
signed certification. One commenter expressed support for the proposed
change.
Two commenters recommended including regional conditions to the
list of conditions under paragraph (a). One commenter suggested that a
separate compliance certification be required for mitigation projects,
because permittees submit the compliance certification when the work is
completed, not when the compensatory mitigation project is completed.
Two commenters said the general condition should be modified to clarify
that the success of the required compensatory mitigation would be
addressed separately, after evaluation of monitoring reports
demonstrates achievement of the performance standards for the
compensatory mitigation project.
We have modified paragraph (a) to require the statement to read
that the authorized work has been done in accordance with any general,
regional and activity-specific conditions to cover all of the
conditions that may be applicable to an NWP authorization. We have also
changed the first paragraph of this general condition by adding a
sentence to state that the success of any required permittee-
responsible mitigation, including the achievement of ecological
performance standards, will be addressed separately by the district
engineer. Paragraph (b) has also been revised by adding a sentence to
address the use of mitigation bank and in-lieu fee program credits to
fulfill compensatory mitigation requirements in NWP authorizations.
This new sentence states that if mitigation bank credits or in-lieu fee
program credits are used, the permittee must submit the documentation
required by 33 CFR 332.3(l)(3) to confirm that he or she has secured
the appropriate number and resource type of credits from the mitigation
bank or in-lieu fee program.
One commenter suggested adding language similar to that provided in
NWP 32, to state that it is necessary to comply with all terms and
conditions of the NWP, and that the NWP authorization is automatically
revoked if the permittee does not comply with all terms and conditions.
One commenter suggested that additional funding be allocated to do more
on-site compliance inspections. One commenter said there are
insufficient monitoring and compliance procedures in the NWPs. One
commenter stated that it should be the permittee's responsibility to
provide the required proof that the authorized activity was conducted
to comply with the terms and conditions of the NWP.
The Note at the beginning of Section C, Nationwide Permit General
Conditions, adequately addresses the requirement to comply with all
applicable terms and conditions of the NWPs. Funding for compliance
inspections is outside of the scope of this rule. Corps districts are
required, through our performance measures, to conduct initial
compliance inspections for a minimum percentage of the total number of
all general permit (including NWP) verifications issued during the
preceding fiscal year where authorized work is underway. The purposes
of this general condition is for the permittee to submit documentation
to the district engineer demonstrating that the authorized activity has
been implemented in accordance with the conditions of the NWP
authorization. Each permittee who receives an NWP verification letter
from the Corps must provide a signed certification documenting
completion of the authorized activity and any required compensatory
mitigation.
This general condition is adopted with the modification listed
above.
GC 31. Pre-Construction Notification. We proposed to modify
paragraph (d)(2) to clarify that all NWP activities
[[Page 10258]]
resulting in the loss of greater than \1/2\-acre of waters of the
United States require agency coordination. We also proposed to require
agency coordination for certain NWPs when the proposed activity would
result in the loss of greater than 1,000 linear feet of intermittent
and ephemeral stream bed, in cases where the district engineer is
considering waiving the 300 linear foot limit. Another proposed change
was to clarify that the district engineer will consider direct and
indirect effects caused by the NWP activity when making a minimal
adverse effects determination. We also proposed to provide a list of
factors to be considered when making minimal effects determinations for
the purposes of the NWPs. One commenter supported the proposed list of
factors.
One commenter objected to adding more pre-construction notification
requirements, stating that it takes several days to weeks for an
applicant to prepare pre-construction notification at the high level of
detail required by district offices. Several commenters stated that
they did not have the time and resources to prepare a pre-construction
notifications for all activities. One commenter said the proposed
changes that require pre-construction notifications for additional
activities would add to the workload of the Corps for projects that are
minor in nature.
We have not substantially increased the number of activities that
require pre-construction notification. We have issued two new NWPs, and
although both of those NWPs require pre-construction notification for
all activities, some of the activities authorized by those NWPs may
also be authorized by other NWPs that do not require pre-construction
notification. A prospective permittee may request authorization under a
specific NWP, if the proposed activity qualifies for authorization
under that NWP. District engineers have been instructed, through
Regulatory Program Standard Operating Procedures, to use the most
efficient permit process wherever possible, to make timely permit
decisions while protecting the aquatic environment. The two new NWPs
issued today will provide a more efficient means of authorizing
renewable energy generation facilities and pilot projects, in cases
where those activities did not previously qualify for NWP authorization
and required individual permits instead.
One commenter expressed concern with delays associated with the
pre-construction notification process. Several commenters said some
districts make requests for additional information after the 30-day
pre-construction notification completeness determination period ends,
and suggested adding a provision to paragraph (a) to state that all
requests for additional information must be made within 30 days of
receipt of a complete pre-construction notification and that districts
are limited to one request for additional information. One commenter
said the phrase ``as a general rule'' should be deleted from paragraph
(a). Several commenters said that in many cases, the district engineer
fails to describe the specific information that is needed for a pre-
construction notification to be deemed complete. Two commenters
requested clarification as to whether the activity is authorized by an
NWP 30 or 45 days after submitting a complete pre-construction
notification.
We have added text to the second sentence of paragraph (a) to state
that district engineers must notify prospective permittees within the
30-day completeness review period if the pre-construction notification
is incomplete and additional information has to be provided to the
district engineer to make the pre-construction notification complete.
We have also added a sentence that directs the district engineer to
specify, in his or her request for additional information, what
information is needed to make the pre-construction notification
complete. We have retained the phrase ``as a general rule'' in the new
fourth sentence, which states that district engineers will request
additional information only once, because there may be occasions where
it is necessary to make an additional request for information. It
should be noted that the 30-day period only applies to information
necessary to make the PCN complete, which is listed in paragraph (c) of
this general condition. Other types of information may also be needed
to make a decision on whether the proposed activity qualifies for NWP
authorization, such as a conceptual or detailed compensatory mitigation
plan, if the applicant only provided a mitigation statement to satisfy
the requirement in paragraph (b)(5). A conceptual or detailed
mitigation plan is needed to determine whether the proposed
compensatory mitigation will be suitable for ensuring compliance with
general condition 23, and may be requested after the 30-day
completeness review period, but before the 45-day pre-construction
notification review period ends. Another example is request for
additional information necessary to complete either Endangered Species
Act Section 7 consultation under general condition 18 or National
Historic Preservation Act Section 106 consultation under general
condition 20. Past rulemaking activities for the NWPs have established
a 45-day pre-construction notification review period for the NWPs, and
today's final rule retains that time period. Exceptions are for
compliance with general condition 18, endangered species, and general
condition 20, historic properties. Under those two general conditions,
activities that may affect endangered or threatened species or critical
habitat, or have the potential to cause effects to historic properties,
are not authorized until the required consultations are completed.
Another exception is NWP 21, for which activities are not authorized
until the applicant receives written verification from the Corps.
One commenter said that ``he or she'' be removed from paragraph
(a)(1) as it is the only location in which personal pronouns are used.
Another commenter recommended changing paragraph (a)(2) to state that
if the permittee does not receive any written notification from the
district engineer within 45 days of submitting a complete pre-
construction notification, then the permittee can assume that the
district engineer has made a ``no effect'' determination for endangered
species or historic properties.
The use of ``he or she'' is appropriate in paragraph (a)(1) because
it refers to the prospective permittee, who may be an individual,
corporation, or other entity. The NWP regulations (see 33 CFR
330.4(f)(2) for Endangered Species Act compliance and 33 CFR
330.4(g)(2) for National Historic Preservation Act compliance), as well
as general conditions 18 and 20, state that the activity is not
authorized by NWP until the requirements of the Endangered Species Act
and/or the National Historic Preservation Act have been satisfied.
Those two provisions in the Corps NWP regulations do not allow a
prospective permittee to conclude that there is a ``no effect'' finding
for the purposes of compliance with the Endangered Species Act or a
``no potential to cause effect'' finding for the purposes of compliance
with Section 106 of the National Historic Preservation Act if the
district engineer does not respond to the pre-construction notification
within 45-days in which the applicant stated there might be effects to
listed species or designated critical habitat or there may be potential
to cause effects to historic properties.
One commenter requested clarification whether the seven items
[[Page 10259]]
identified in paragraph (b) of this general condition are a complete
list and should not be supplemented. One commenter said that if
additional requirements are added to the NWP authorization by the
district engineer after the evaluation of the pre-construction
notification, those requirements should be subject to public notice and
comment.
The seven items listed in paragraphs (b)(1) through (7) of this
general condition are required for a pre-construction notification.
Additional information may be needed by the district engineer to make a
decision on the NWP pre-construction notification, such as a
compensatory mitigation proposal if the district engineer disagrees
with the prospective permittee's statement that compensatory mitigation
is not necessary to ensure the activity results in minimal adverse
environmental effects, or information needed to conduct Endangered
Species Act Section 7 or National Historic Preservation Act Section 106
consultation. Permit conditions added to an NWP authorization by a
district engineer do not need to go through a public notice and comment
process because they are incorporated into the authorization to ensure
compliance with regulatory and statutory requirements that general
permits only authorize activities that have minimal adverse effects on
the aquatic environment and other applicable public interest review
factors. The Corps regulations do not require public notice and comment
for any conditions added to Department of the Army permits, including
standard permits, letters of permission, and all categories of general
permits.
Two commenters stated that applicants should be required to submit
detailed mitigation plans with their pre-construction notifications and
conceptual mitigation proposals are not sufficient. One commenter said
paragraph (e)(2) should be revised to require the prospective permittee
to submit a compensatory mitigation proposal if the activity will
result in the loss of greater than \1/10\-acre of wetlands.
Paragraph (b)(5) requires the prospective permittee to submit a
statement explaining how the mitigation requirement will be satisfied
or why the adverse effects of the proposed activity on the aquatic
environment are minimal without mitigation. A detailed or conceptual
mitigation plan may be submitted with the pre-construction
notification, and a conceptual mitigation plan is usually sufficient
for making the minimal adverse effects determination. If the proposed
mitigation shown in the conceptual mitigation plan is acceptable, a
detailed mitigation plan that complies with the requirements of 33 CFR
332.4(c)(2)-(14) will be required and must be approved by the district
engineer before work begins in waters of the United States unless the
district engineer determines such prior approval is not practicable or
necessary (see paragraph (c)(3) of general condition 23, mitigation).
One commenter said that state agencies operating under Federal
funding should be added to paragraphs (b)(6) and (b)(7), for the
submittal of documentation demonstrating compliance with Section 7 of
the Endangered Species Act or Section 106 of the National Historic
Preservation Act. This commenter also stated that pre-construction
notifications should be provided electronically as well. One commenter
said that a pre-construction notification should include information
demonstrating that a project complies with applicable federal and state
requirements.
A state agency operating under Federal funding, where the Federal
agency has conducted Endangered Species Act Section 7 consultation or
National Historic Preservation Act Section 106 consultation for the
activity that is being provided Federal funds, may provide that
documentation to the district engineer as part of its pre-construction
notification, but the district engineer will determine whether that
consultation is sufficient for the NWP activity. The NWP regulations at
33 CFR 330.1(e)(1) state that pre-construction notifications must be in
writing. We have modified paragraph (d)(4) to state that prospective
permittees may also provide electronic files of pre-construction
notifications to expedite agency coordination. Compliance with other
Federal, state, or local requirements is the responsibility of the
permittee, and the Corps does not have the authority to enforce the
regulatory requirements of programs administered by other agencies.
Several commenters objected to the requirement for a delineation of
special aquatic sites and other waters of the United States under
paragraph (b)(4) of this general condition, because requiring a full
delineation has become a significant cause of delays and increased
costs due to uncertainties regarding the extent of Federal
jurisdictional waters under U.S. Supreme Court decisions in 2001 and
2006. One commenter said that in the second sentence of paragraph
(b)(4) the term ``wetland delineation'' should be replaced with
``delineation of waters of the United States,'' because the requirement
is for not only a delineation of wetlands but also of other waters of
the United States. One commenter suggested modifying paragraph (b)(4)
to clarify that a jurisdictional determination is not required with the
submittal of a complete pre-construction notification, just a
delineation of waters of the United States, which would be completed by
either the prospective permittee or the Corps.
We have modified paragraph (b)(4) to state that a pre-construction
notification must include a delineation of wetlands, other special
aquatic sites, and other aquatic habitats (e.g., perennial,
intermittent, and ephemeral streams, and lakes and ponds) on the
project site, instead of a delineation of special aquatic sites and
other waters of the United States. Use of the term ``waters of the
United States'' in this paragraph implies that an approved
jurisdictional determination would have to be done for a NWP pre-
construction notification. An approved jurisdictional determination is
an official Corps determination that jurisdictional ``waters of the
United States'' or ``navigable waters of the United States,'' or both,
are either present or absent on a particular site, and precisely
identifies the limits of those waters on the project site that are
determined to be jurisdictional under the Clean Water Act or Sections 9
and 10 of the Rivers and Harbors Act of 1899 (see Regulatory Guidance
Letter 08-02). We understand that many users of the NWPs do not want to
obtain an approved jurisdictional determination, and that preliminary
jurisdictional determinations may be appropriate for the purposes of
NWP authorizations.
Under a preliminary jurisdictional determination, the wetlands,
other special aquatic sites, and other aquatic habitats on the project
site are presumed to be waters of the United States for the purposes of
the NWP authorization, and any compensatory mitigation that may be
required. A project proponent has the option of requesting an approved
jurisdictional determination if he or she believes that some or all of
the wetlands, special aquatic sites, or other aquatic habitats are not
waters of the United States, and wants an official jurisdictional
determination from the Corps. A request for an approved jurisdictional
determination should be submitted to the Corps in advance of submitting
a pre-construction notification, because the Corps may not be able to
make an approved jurisdictional determination within the 45-day pre-
construction notification review period, and this NWP rule does not
contain a provision stating that approved jurisdictional determinations
[[Page 10260]]
are necessary to make a decision on an NWP pre-construction
notification.
Several commenters suggested modifying the general condition to
allow the applicant to satisfy the pre-construction notification
requirement by demonstrating that consultation under the National
Historic Preservation Act (NHPA) and/or Endangered Species Act (ESA)
has been completed and has resulted in a finding that the project would
not adversely affect resources protected under those statutes. One of
the commenters also stated that paragraph (e)(1) is incorrect, because
the condition refers to a limit of 300 feet, but NWP 13 has a limit of
500 feet that can be waived. One commenter stated that submittal of a
pre-construction notification should be required for any NWPs within
303(d) impaired waters and that the applicant should prepare a
statement identifying how the project avoids contributing to existing
water quality impairments and maintains consistency with any existing
Total Daily Maximum Loads (TMDLs).
Pre-construction notification is required for NWP activities that
might affect endangered or threatened species listed, or proposed for
listing, under the Endangered Species Act (see 33 CFR 330.4(f)(2)).
Likewise, pre-construction notification is required for NWP activities
that may affect historic properties (see 33 CFR 330.4(g)(2)). It is the
Corps responsibility to make effect determinations for the purposes of
the NWP authorizations. Information provided by the project proponent
for Endangered Species Act or National Historic Preservation Act
compliance will be fully considered by the district engineer, but it is
the district engineer's decision as to whether the requirements of
those acts have been complied with for the NWP authorizations. We have
determined that modification of paragraph (e)(1) (which has been moved
to paragraph 1 of Section D, District Engineer's Decision) is not
necessary, as the 500 linear foot limit for the request for a waiver of
NWP 13 is ``an otherwise applicable limit'' as specified in this text.
The state agency that makes water quality certifications for the NWPs
has the authority to determine whether an NWP should authorize
discharges into 303(d) impaired waters, so we do not believe pre-
construction notification should be categorically required for all such
discharges. As noted previously, many waters are impaired for
pollutants not related to discharges of dredge or fill material.
Two commenters said that under paragraph (c) of this general
condition, there are problems with using ENG 4345 for pre-construction
notifications, because the standard permit form requires information
that is not listed in paragraphs (b)(2) through (b)(7), and those
paragraphs also cite information that is not required by ENG 4345.
The standard permit form, ENG 4345, may be used for pre-
construction notifications, and it is not necessary to fill out those
fields in ENG 4345 that are not relevant to paragraphs (b)(2) through
(b)(7). The prospective permittee must supplement ENG 4345 if the NWP
pre-construction notification must include information that is not
specifically required by ENG 4345. A permittee is not required to use
ENG 4345 for pre-construction notification as long as all required
information is included.
Several commenters said that the threshold for agency coordination
should be increased, or that interagency coordination is not necessary.
In contrast, several commenters stated that the thresholds for agency
coordination should be decreased. One commenter said agency
coordination should be required for any activity potentially impacting
approved mitigation banks, other mitigation areas, or local, state, or
Federal public properties. One commenter suggested requiring agency
coordination for NWP 12 activities, because they could result in the
loss of greater than \1/2\-acre of waters of the United States.
We believe the agency coordination thresholds established in
paragraph (d)(2) of this general condition are appropriate, and focus
on those activities where it would be helpful to solicit the views of
the listed agencies prior to making a decision on an NWP pre-
construction notification. Potential impacts to mitigation banks, other
compensatory mitigation project sites, or other public properties are
more appropriately addressed through the district engineer's review,
and do not require additional agency coordination under the NWP
program. However, agency coordination may be required under other
regulations, such as 33 CFR 332.8, which has an interagency review
process for the establishment and operation of mitigation banks and in-
lieu fee programs. A proposed activity that may directly affect an
approved mitigation bank or in-lieu fee project site may require the
district engineer to consult with an interagency review team before
making a decision on that activity. The limits for NWP 12 apply to
single and complete projects, and for each single and complete project
the NWP 12 activity may not result in the loss of greater than \1/2\-
acre of waters of the United States. As discussed elsewhere in this
final rule, in response to pre-construction notifications for NWP 12
activities that are linear projects, district engineers will evaluate
the cumulative effects of those linear projects on the aquatic
environment when determining whether authorization by NWP is
appropriate. We do not believe it is necessary to require agency
coordination for those linear projects.
This general condition is adopted with the modifications discussed
above.
District Engineer's Decision
We have established a new Section D, District Engineer's Decision,
by moving paragraph (e) of the proposed general condition 30 (now
designated as general condition 31) to a separate section of the NWPs.
We believe this is appropriate because the proposed paragraph (e) does
not require compliance on the part of the permittee. Therefore, the
criteria that district engineers use to determine whether a particular
activity is authorized by NWP should not be in the general conditions.
The comments received in response to the proposed paragraph (e) of the
pre-construction notification general condition have been moved to this
new section.
Two commenters objected to the language which states that the
district engineer must determine that the proposed NWP activity is not
contrary to the public interest. One of these commenters said that
Section 404(e) of the Clean Water Act does not require such a public
interest review for NWP activities, and this provision should be
deleted because it conflicts with other Corps regulations.
The NWP regulations clearly state that the district engineer may
exercise discretionary authority if he or she identifies concerns for
the aquatic environment under the 404(b)(1) Guidelines or for any
factor of the public interest (see 33 CFR 330.1(d)). In addition, the
NWP regulations also require the district engineer to review pre-
construction notifications and add conditions to the NWP authorization
if necessary to ensure that the activity results in minimal individual
and cumulative adverse effects on the aquatic environment and the
public interest (see 33 CFR 330.1(e)(2)). The Corps issued those
regulations under its authority under Section 404 of the Clean Water
Act and Section 10 of the Rivers and Harbors Act of 1899.
One commenter suggested adding definitions of the terms ``direct''
and ``indirect'' to the NWPs. Two commenters requested clarification on
when a district engineer can exercise discretionary authority for the
purposes of the NWP authorization, particularly for those circumstances
where pre-
[[Page 10261]]
construction notification is not required by the NWP. Several
commenters said that the district engineer should also evaluate the
environmental benefits of a project.
We have added definitions for the terms ``direct effects'' and
``indirect effects'' to the ``Definitions'' section of the NWPs.
District engineers have the authority to modify, suspend, or revoke any
NWP authorization (see 33 CFR 330.1(d) and 33 CFR 330.4(e)(2)) when he
or she has identified sufficient concerns for the environment or other
factors of the public interest. District engineers may also consider
environmental benefits that may result when making a decision as to
whether an NWP activity results in minimal individual and cumulative
adverse effects to the aquatic environment.
One commenter stated that the factors required for a district
engineer to make a minimal effects determination on a request for a
waiver of the limits of any NWP suggests a level of analysis that is
more comparable to the individual permit process, which threatens the
availability of the NWPs for prospective permittees.
The evaluation of a request for a waiver of the 300 linear foot
limit for the loss of intermittent or ephemeral stream bed, or any
other limit that can be waived by the district engineer, is an
important tool for maintaining flexibility in the NWP, and authorizing
activities that result in minimal individual and cumulative adverse
effects on the aquatic environment. The waiver review process is not
comparable to the individual permit review process, because it does not
require a public notice, National Environmental Policy Act
documentation, and a project-specific 404(b)(1) Guidelines analysis.
In response to the proposed considerations for making minimal
effects determination, one commenter suggested adding the type of
resource that will be affected by the NWP. This commenter also
recommended defining the term ``minimal effects'' as those effects that
constitute relatively small changes in the affected environment and
insignificant changes in ecological function or hydrology. This
commenter said the minimal effects decision may also depend on whether
the proposed activity will occur in a special aquatic site, its
proximity to nesting or spawning areas, the presence of state- or
federally-listed species of concern other than endangered or threatened
species, and the amount of permitted or unpermitted aquatic resource
loss in the same watershed, stream reach, and/or bay or estuary.
We agree that adding the resource type is appropriate, because the
minimal effects threshold may be different for a difficult-to-replace
resource such as a stream, bog, fen, or spring. We do not agree that a
finding of minimal effects should be based on small changes to the
affected environment, ecological function, or hydrology. While the NWPs
have acreage or linear foot limits, or inherent limits based on the
type of activity authorized, at a small scale those activities result
in complete losses of ecological function or hydrology because most
discharges of dredged or fill material into waters of the United States
replace aquatic areas with dry land. These complete losses of waters of
the United States often have minimal individual and cumulative adverse
effects on the aquatic environment. It is the environmental setting and
other factors listed in the proposed paragraph (e)(1) (which has been
changed to paragraph (1) of Section D) that are more appropriate for
making the minimal effects determination. It is also the broader
watershed or landscape context that is important for determining
whether minimal adverse effects on the aquatic environment will result.
Proximity to nesting or spawning areas is more appropriately addressed
through compliance with general condition 4, migratory bird breeding
areas, and general condition 3, spawning areas. Division engineers may
impose regional conditions to restrict or prohibit the use of NWPs to
authorize activities that may affect state- or federally-listed species
of concern if they determine, after the public notice and comment
process, it is in the public interest to add such regional conditions
to ensure minimal adverse effects. The Corps is required to consider
effects within a wetland, stream reach, or coastal waterbody that are
caused either by an individual activity, or cumulatively by many such
activities authorized by the same NWP, and to determine that such
effects are minimal before use of an NWP can be authorized.
We have made additional modifications to the text of this provision
of the NWPs. In the first paragraph, we have added a sentence stating
that for linear projects, the district engineer will evaluate the
individual crossings to determine if they satisfy the terms and
conditions of the applicable NWP(s), as well as the cumulative effects
of all the crossings authorized by NWPs. This sentence is consistent
with the preamble for the NWP final regulation published in the
November 22, 1991, issue of the Federal Register, in which the
definition of ``single and complete project'' at 33 CFR 330.2(i) was
promulgated (see 56 FR 59114).
In paragraphs (2) and (3) of Section D, we have added text to be
consistent with the mitigation rule at 33 CFR part 332, with a focus on
adding activity-specific conditions to the NWP authorization for
compensatory mitigation requirements. We have also added a provision to
the end of paragraph (3) stating that the district engineer may
determine that prior approval of a mitigation plan is not practicable
or not necessary to ensure timely completion of the required
compensatory mitigation. This provision is consistent with 33 CFR
332.3(k)(3).
Definitions
Best management practices (BMPs). We did not receive any comments
on the proposed definition. The definition is adopted as proposed.
Compensatory mitigation. We proposed to modify this definition to
make it consistent with the definition of this term found in 33 CFR
332.2. We did not receive any comments on the proposed definition and
the definition is adopted as proposed.
Currently serviceable. We did not proposed any changes for this
definition. We did not receive any comments on the proposed definition.
The definition is adopted as proposed.
Direct effects. In response to several comments, we are adding a
definition of ``direct effects'' to provide clarification to be used
with paragraph (1) of Section D, District Engineer's Decision. We have
adapted this definition from the Council of Environmental Quality's
definition in their National Environmental Policy Act regulations at 40
CFR 1508.8(a).
Discharge. The proposed definition included the phrase ``and any
activity that causes or results in such a discharge.''
One commenter said that that phrase should be removed because it is
inconsistent with court decisions on the definition of ``discharge of
dredged material.'' We inadvertently included the language in the
proposal, and are removing it from the definition.
This definition is adopted with the modification discussed above.
Enhancement. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Ephemeral stream. We did not propose any changes to the definition.
One commenter said the definition should be modified to state that for
ephemeral streams, flow is also derived from snow melt as well as
rainfall. One
[[Page 10262]]
commenter requested clarification that the definition of ephemeral
stream did not include roadside ditches.
While snow melt may contribute to the flow of ephemeral streams,
snow melt also contributes to the flow of intermittent and perennial
streams, especially in areas with deep snow packs. The proposed
definition appropriately focuses on the duration of flow, and melting
snow should not be considered a precipitation event since the
development of snow pack occurs over the course of a winter season.
Therefore, we are not making the suggested change. Ephemeral streams
may, in some circumstances, be channelized or relocated to become
roadside ditches, so we do not agree that recommended change should be
made.
The definition is adopted as proposed.
Establishment (creation). We did not receive any comments on the
proposed definition. The definition is adopted as proposed.
High Tide Line. We proposed to add this as a new definition, based
on the definition at 33 CFR 328.3(d). One commenter suggested expanding
the definition of storm surges to include build up of water against a
coast or a bay by flood waters which cause water levels to exceed
spring high tide levels.
We do not agree that the suggested change should be made to this
definition, because it would make the definition inconsistent with 33
CFR 328.3(d), which states that storm surges are not to be used to
identify the high tide line.
The definition is adopted as proposed.
Historic property. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Independent utility. We proposed to add ``non-linear'' in the first
sentence after ``complete'' and before project to reflect the
independent utility test only applies to single and complete non-linear
projects.
One commenter requested that the term ``independent utility'' be
eliminated from the nationwide permit program because it discourages
assessment of a project's total impacts. Another commenter asked
whether the term independent utility applied to both single and
complete non-linear projects and single and complete linear projects.
The concept of ``independent utility'' is important for the
implementation of the NWP program because it provides a useful test to
help determine whether proposed activities requiring Department of the
Army authorization should be evaluated together for one permit
authorization, or may be evaluated separately to determine if each
activity qualifies for its own permit authorization. Despite the
independent utility test, the cumulative effects of NWP activities must
still be evaluated by district engineers when they review pre-
construction notifications or other NWP verification requests. The
modified definition makes it clear that the independent utility test
only applies to single and complete non-linear projects; however,
separate linear projects may have independent utility.
This definition is adopted as proposed.
Indirect effects. In response to several comments, we are adding a
definition of ``indirect effects'' to provide clarification to be used
with paragraph (1) of Section D, District Engineer's Decision. We have
adapted this definition from the Council on Environmental Quality's
definition in their National Environmental Policy Act regulations at 40
CFR 1508.8(b).
Intermittent stream. We did not receive any comments on the
proposed definition. The definition is adopted as proposed.
Loss of waters of the United States. We did not propose any changes
to the definition. One commenter said the loss of stream bed should be
defined. One commenter suggested revising this definition to state that
waters of United States temporarily filled, flooded, excavated, or
drained, but restored to pre-construction contours and elevations after
construction, are not included in the measurement of loss of waters of
the United States, especially as it relates to utility line
construction. Another commenter said that clarification should be
provided to state that for the purposes of the NWPs, the loss of waters
of the United States generally does not include the cleared area along
the utility line right-of-way between two poles or towers supporting
overhead power transmission lines. One commenter requested
clarification of application of this definition to activities in the
ocean, bays, and Great Lakes, especially in the context of NWP 52
activities. This commenter recommended stating, for the purposes of NWP
52, that the loss only applies to the area of the ocean, bay, or Great
Lakes occupied by wind towers and associated structures such as
meteorological towers and transformers.
The proposed definition stated that the loss of stream bed results
from filling or excavating the stream bed, and we do not believe it is
necessary to change that definition. The proposed definition also
stated that waters of the United States temporarily filled, flooded,
excavated, or drained, but restored to pre-construction contours and
elevations after construction, are not included in the measurement of
loss of waters of the United States. That provision may apply to
temporary impacts to waters of the United States caused by utility
lines activities, or to any other activity involving temporary filling,
flooding, excavation, or drainage. While the presence of an overhead
utility line above waters of the United States does not constitute a
``loss of waters of the United States,'' the construction of a utility
line right-of-way for overhead transmission lines may result in losses
of waters of the United States if it involves discharges of dredged or
fill material into waters of the United States that cause permanent
conversions of aquatic areas to dry land or permanent increases to the
bottom elevation of a waterbody.
The application of this definition to renewable energy generation
facilities in coastal waters and the Great Lakes depends on the type of
activity. A structure installed in these waters is generally not
considered to result in a loss of waters of the United States, unless
it is a pile supported structure that is constructed by placing a
series of piles so closely together that they have the effect of fill
(see 33 CFR 323.3(c)). If the construction of these facilities and
associated structures involves the placement of materials that meet
either the definition of ``discharge of dredged material'' at 33 CFR
323.2(d) or ``discharge of fill material'' at 33 CFR 323.2(f), such as
the placement of riprap at the base of a pile supported structure, then
the area of sea bed or lake bed covered by that dredged or fill
material would be counted towards the ``loss of waters of the United
States'' for that activity.
The definition is adopted as proposed.
Non-tidal wetland. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Open water. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Ordinary high water mark. We did not propose any changes to the
definition. One commenter said the definition should state that, for
flowing waters, the term ordinary high water mark includes the bankfull
stage or elevation, since this indicator can be readily delineated at
most locations.
The bankfull elevation is not a useful tool for identifying the
ordinary high water marks of streams or rivers in some parts of the
country, especially the arid west. In the arid west, the Corps
[[Page 10263]]
examines stream geomorphology and vegetation that is responsive to the
dominant stream discharge to identify the ordinary high water mark for
intermittent and ephemeral streams (see ``A Field Guide to the
Identification of the Ordinary High Water Mark (OHWM) in the Arid West
Region of the Western United States: A Delineation Manual'' published
by the Corps Engineer Research and Development Center, report number
ERDC/CRREL TR-08-12, dated August 2008).
The definition is adopted as proposed.
Perennial stream. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Practicable. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Pre-construction notification. We did not receive any comments on
the proposed definition. The definition is adopted as proposed.
Preservation. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Re-establishment. We proposed to modify this definition by adding
``and functions'' to the end of the last sentence in order to be
consistent with the definition of this term found in 33 CFR 332.2.
Two commenters objected to the proposed change. The addition of the
phrase ``and functions'' makes this definition consistent with the
definition at 33 CFR 332.2, which was promulgated in 2008. The
objective of re-establishing aquatic resources is to provide aquatic
resource functions.
The definition is adopted as proposed.
Rehabilitation. We did not propose any changes to this definition.
One commenter expressed support of this definition. The definition is
adopted as proposed.
Restoration. We did not propose any changes to this definition. One
commenter expressed support of this definition. The definition is
adopted as proposed.
Riffle and pool complex. We did not receive any comments on the
proposed definition. The definition is adopted as proposed.
Riparian areas. We did not propose any changes to this definition,
and we did not receive any comments on the proposed definition. We have
changed this definition to more accurately describe where riparian
areas occur, and what types of features may be found in riparian areas.
We have replaced the word ``waterbody'' with the phrase ``riverine,
lacustrine, estuarine, and marine waters,'' since the definition of
``waterbody'' includes wetlands and wetlands by themselves do not have
riparian areas. We have also added ``wetlands, non-wetland waters, or''
between the words ``adjacent'' and ``uplands'' since riparian areas are
not limited to uplands. There may be wetlands and non-wetland (open)
waters such as oxbow lakes and ponds within a riparian area. The
definition is adopted with the modifications discussed above.
Shellfish seeding. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Single and complete linear project and single and complete non-
linear project. We proposed to take the definition of ``single and
complete project'' and split it into two definitions to clarify the use
the term ``single and complete project'' for linear and non-linear
projects. Our proposal was based on the definition for ``single and
complete project'' at 33 CFR 330.2(i) that was provided in the November
22, 1991, final rule (56 FR 59113).
Many commenters expressed support for the proposal. Most of these
commenters also agreed that the independent utility test does not apply
to single and complete linear projects. They said the proposed
definitions will remove some of the uncertainty and inconsistencies
that currently exist with respect to how multiple stream and wetland
crossings are evaluated for linear projects as opposed to non-linear
projects. One commenter asked for assurance that these new definitions
would not materially affect how the Corps evaluates separate crossings
of tributaries for the purposes the NWP program.
These two definitions are consistent with the NWP regulations and
are not expected to have an effect on the Corps current practices for
implementing the NWP program for both linear and non-linear projects.
One commenter opposed differentiating between linear and non-linear
projects for the purposes of the definition of single and complete
project. One commenter said that references to single and complete
linear projects and single and complete non-linear projects should be
removed from the NWPs. One commenter stated that these two definitions
would complicate the water quality certification process.
The separate definitions established in today's rule will help
provide consistent implementation of the NWP program by clarifying how
the term ``single and complete project'' should be applied for
different types of activities authorized by NWP. These definitions are
important for efficient implementation of the Corps Regulatory Program
and determining whether a particular regulated activity and any related
regulated activities qualify for NWP authorization. Therefore, we do
not agree that these terms should be removed from the NWP program. The
definition of ``single and complete project'' for the NWPs has been in
place since 1991 and the separate definitions provided in today's final
rule are consistent with the 1991 definition. Therefore, the use of
these definitions should not complicate the water quality certification
process.
One commenter requested the addition of examples, such as utility
lines, to the definition of single and complete linear project. One
commenter asked for clarification on whether the term independent
utility only applies to non-linear single and complete projects.
Several commenters said the definition of single and complete linear
project should preclude district engineers from evaluating separate
crossings cumulatively.
The new definitions distinguish between linear and non-linear
projects and reflect the fact that while each single and complete non-
linear project must have independent utility, each single and complete
linear project need not have independent utility within the overall
linear project. However, separate linear projects may have independent
utility. To clarify what a linear project is, we have added a sentence
to the definition of single and complete linear project to state that 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.
A linear project may involve multiple crossings of streams, wetlands,
or other types of waters from the point of origin to the terminal
point. Roads and pipelines are examples of linear projects. While each
separate and distant crossing of a waterbody associated with a linear
project would be considered a separate single and complete project for
the purposes of the NWPs, district engineers will also evaluate the
cumulative effects of those crossings to determine whether they qualify
for NWP authorization.
One commenter said that for an overall linear project the sum total
of the losses of waters of the United States associated with that
linear project cannot exceed the acreage or linear foot limits for an
NWP. Several commenters stated that it was inappropriate to use
multiple NWPs to authorize multiple crossings associated with one
overall linear project, because it would be
[[Page 10264]]
impossible for the district engineer to determine if the overall
project had minimal adverse effects on the environment or prevent the
Corps from assessing the cumulative effects caused by the overall
project. One commenter said these two proposed definitions may conflict
with the NWP general conditions.
For single and complete linear projects, each separate and distant
crossing of a waterbody, as well as each crossing of other waterbodies
along the corridor for the linear project may be permitted by separate
NWP authorizations. The acreage and other applicable limits for an NWP
would be applied to each crossing, as long as those crossings are far
enough apart to be considered separate and distant. District engineers
will evaluate the cumulative effects of those linear projects when
determining whether authorization by NWP is appropriate. The approach
to cumulative effects analysis for linear projects is little different
than the cumulative effects analysis for other types of NWP activities,
including those circumstances in which more than one NWP is used to
authorize a single and complete non-linear project, because cumulative
effects are evaluated on a regional basis. Cumulative effects analysis
may be done on a watershed basis, or by using a different type of
geographic area, such as an ecoregion.
One commenter asked how offshore wind energy projects would be
evaluated in accordance with these definitions, especially how the
turbines, substations, cables, and associated infrastructure would be
considered as either single and complete linear projects or single and
complete non-linear projects.
Deciding which definition to apply to a particular project depends
on the configuration of the project relative to the locations of waters
of the United States within the project boundaries. For offshore wind
energy projects, the turbines would be located on structures in a
single waterbody as would the transmission cables that transfer the
energy from the turbines to a land-based substation, while land-based
attendant features might be constructed in separate waterbodies located
within a tract of land. The off-shore turbine structures and land-based
attendant features may be considered as a single and complete non-
linear project, while as discussed above for NWPs 51 and 52, the
utility lines that transfer the energy from the renewable energy
generation facilities to a distribution system, regional grid, or other
facility may be considered to be separate single and complete linear
projects and may be authorized under a separate NWP, such as NWP 12.
The district engineer will have to consider the activity-specific
circumstances when determining which definition to apply and which NWPs
are appropriate to use.
One commenter asked whether district engineers have the authority
to change the definitions of single and complete project or independent
utility. Two commenters said the term ``distant'' should be defined in
``single and complete linear project.''
The definitions provided in today's final rule cannot be changed by
district engineers, but those definitions will be subject to
interpretation after these NWPs go into effect and they are
implemented. It is not practical to provide specific definition of
``distant'' since that must be a judgment call by the district engineer
because of the substantial variability in landscapes and environmental
conditions across the country.
The definition for ``single and complete linear project'' is
adopted with the modification discussed above. The definition for
``single and complete non-linear project'' is adopted as proposed.
Stormwater management. We did not receive any comments on the
proposed definition. The definition is adopted as proposed.
Stormwater management facilities. We did not receive any comments
on the proposed definition. The definition is adopted as proposed.
Stream bed. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Stream channelization. We did not receive any comments on the
proposed definition. The definition is adopted as proposed.
Structure. We did not propose any changes to the definition. One
commenter requested that we include bridges and culverts in the
definition of structures.
Depending on how a bridge or culvert is constructed, and its
effects on the aquatic environment, it may be considered a structure or
fill. The bridge supports (i.e., bents) may be considered to be a
structure for the purposes of this definition. However, placement of a
culvert in a water of the United States can have the effect of raising
the bottom elevation and thus should be regulated as fill. Accordingly,
we are retaining the definition of structure as is presently proposed.
Tidal wetland. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Vegetated shallows. We did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Waterbody. We did not receive any comments on the proposed
definition, but we believe some modification of the definition is
necessary to make it simpler and clearer. The revised definition simply
says that, for the purposes of the NWPs, a waterbody is a
jurisdictional water of the United States. We have removed the text
referring to the presence of standing or flowing water above ground and
the statement that an ordinary high water mark is an indicator of
jurisdiction. The ordinary high water mark indicates the lateral extent
of jurisdiction for a non-wetland waterbody in the absence of adjacent
wetlands (see 33 CFR 328.4(c)(1)); the jurisdictional status of the
waterbody is determined by applying the appropriate regulatory or legal
criteria. In cases where the waterbody is a wetland, the lateral extent
of the waterbody is the wetland boundary. Likewise, we have revised the
last sentence of this definition by removing the phrase ``a
jurisdictional waterbody displaying an OHWM or other indicators of
jurisdiction'' and replacing it with ``a waterbody determined to be a
water of the United States under 33 CFR 328.3(a)(1)-(6)''.
The definition is adopted with the modifications discussed above.
In addition to the comments submitted on definitions provided in
the proposed rule, we received a number of comments suggesting the
addition of more definitions to the ``Definitions'' section of the
NWPs.
One commenter requested that we define ``discrete event'' as it
pertains to NWP 3 and NWP 45. One commenter asked for a definition of
mechanized land clearing as it relates to the first pre-construction
notification threshold in NWP 12, to make it clear whether activities
that only involve the cutting or removal of vegetation above the ground
are, or are not, regulated activities. One commenter said that the
definition of fill should be provided in the NWPs to clarify the types
of materials allowed or prohibited by the NWPs.
What constitutes a ``discrete event'' for the purposes of NWPs 3
and 45 is at the discretion of the district engineer, and in both NWPs
we provide examples that give context to the term ``discrete event.''
In NWP 3, storms, floods, and fire are examples of discrete events. For
NWP 45, storms and floods provide examples of discrete events. The
definition of ``discharge of dredged material'' at 33 CFR 323.2(d) is
used to determine whether mechanized landclearing involves a discharge
of
[[Page 10265]]
dredged material that is regulated under Section 404 of the Clean Water
Act. Project proponents are encouraged to contact the district engineer
to determine whether a particular activity involving mechanized
clearing of a utility line right-of-way in a forested wetland
constitutes a regulated activity, because the equipment and techniques
used are important considerations. The definition of the term ``fill
material'' is provided in the Corps regulations at 33 CFR 323.2(e).
Nationwide permit activities must comply with general condition 6,
suitable material, and it is not feasible to provide a comprehensive
list of the types of materials that may be used as fill material for
NWP activities.
One commenter suggested adding a definition of ``special aquatic
sites'' in the NWPs. One commenter said the definition of special
aquatic sites should include glides, side channels, floodplains, and
other types of habitats that create and maintain habitat for salmon and
other fish species.
The NWPs have a definition for one of the special aquatic sites
listed in the 404(b)(1) Guidelines, specifically riffle and pool
complexes and vegetated shallows. Definitions for the other special
aquatic sites, that is, sanctuaries and refuges, wetlands, mud flats,
and coral reefs, are found at sections 230.40, 230.41, 230.42, and
230.44 of 40 CFR part 230, respectively. Glides, side channels,
floodplains, and salmon and fish habitat are not considered special
aquatic sites unless they satisfy the criteria at 40 CFR 230.40 through
230.45.
Regional Conditioning of the Nationwide Permits
Concurrent with this Federal Register notice, district engineers
are issuing local public notices. In addition to the changes to some
NWPs and NWP conditions required by the Chief of Engineers, division
and district engineers may propose regional conditions or propose
revocation of NWP authorization for all, some, or portions of the NWPs.
Regional conditions may also be required by state or Tribal water
quality certification or for state Coastal Zone Management Act
consistency. District engineers will announce regional conditions or
revocations by issuing local public notices. Information on regional
conditions and revocation can be obtained from the appropriate district
engineer, as indicated below. Furthermore, this and additional
information can be obtained on the Internet at http://www.saj.usace.army.mil/Divisions/Regulatory/HQAvatar.htm which will
help the public find the home page of the appropriate Corps district
office.
Contact Information for Corps District Engineers
Alabama
Mobile District Engineer, ATTN: CESAM-RD, 109 St. Joseph Street,
Mobile, AL 36602-3630
Alaska
Alaska District Engineer, ATTN: CEPOA-RD, P.O. Box 6898, Elmendorf AFB,
AK 99506-6898
Arizona
Los Angeles District Engineer, ATTN: CESPL-RG-R, P.O. Box 532711, Los
Angeles, CA 90053-2325
Arkansas
Little Rock District Engineer, ATTN: CESWL-RD, P.O. Box 867, Little
Rock, AR 72203-0867
California
Sacramento District Engineer, ATTN: CESPK-RD, 1325 J Street,
Sacramento, CA 95814-2922
Colorado
Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson Plaza
NE., Albuquerque, NM 87109-3435
Connecticut
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751
Delaware
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker Building,
100 Penn Square East Philadelphia, PA 19107-3390
Florida
Jacksonville District Engineer, ATTN: CESAJ-RD, P. O. Box 4970,
Jacksonville, FL 32232-0019
Georgia
Savannah District Engineer, ATTN: CESAS-RD, 100 West Oglethorpe Avenue,
Savannah, GA 31401-3640
Hawaii
Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN: CENWW-RD, 201 North Third Avenue,
Walla Walla, WA 99362-1876
Illinois
Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, Rock
Island, IL 61204-2004
Indiana
Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59,
Louisville, KY 40201-0059
Iowa
Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, Rock
Island, IL 61204-2004
Kansas
Kansas City District Engineer, ATTN: CENWK-OD-R, 635 Federal Building,
601 E. 12th Street, Kansas City, MO 64106-2896
Kentucky
Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59,
Louisville, KY 40201-0059
Louisiana
New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267, New
Orleans, LA 70160-0267
Maine
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751
Maryland
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Massachusetts
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751
Michigan
Detroit District Engineer, ATTN: CELRE-RG, 477 Michigan Avenue,
Detroit, MI 48226-2550
Minnesota
St. Paul District Engineer, ATTN: CEMVP-OP-R, 180 Fifth Street East,
Suite 700, St. Paul, MN 55101-1678
Mississippi
Vicksburg District Engineer, ATTN: CEMVK-OD-F, 4155 Clay Street,
Vicksburg, MS 39183-3435
Missouri
Kansas City District Engineer, ATTN: CENWK-OD-R, 635 Federal Building,
601 E. 12th Street, Kansas City, MO 64106-2896
[[Page 10266]]
Montana
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha,
NE 68102-4901
Nebraska
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha,
NE 68102-4901
Nevada
Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street,
Sacramento, CA 95814-2922
New Hampshire
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751
New Jersey
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker Building,
100 Penn Square East, Philadelphia, PA 19107-3390
New Mexico
Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson Plaza
NE., Albuquerque, NM 87109-3435
New York
New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza, New
York, NY 10278-0090
North Carolina
Wilmington District Engineer, ATTN: CESAW-RG, P.O. Box 1890,
Wilmington, NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha,
NE 68102-4901
Ohio
Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-RO, 1645 S. 101st East Ave.,
Tulsa, OK 74128-4609
Oregon
Portland District Engineer, ATTN: CENWP-OD-G, P.O. Box 2946, Portland,
OR 97208-2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Rhode Island
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751
South Carolina
Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919,
Charleston, SC 29402-0919
South Dakota
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha,
NE 68102-4901
Tennessee
Nashville District Engineer, ATTN: CELRN-OP-F, 3701 Bell Road,
Nashville, TN 37214
Texas
Galveston District Engineer, ATTN: CESWG-PE-R, P.O. Box 1229,
Galveston, TX 77553-1229
Utah
Sacramento District Engineer, ATTN: CESPK-RD, 1325 J Street, CA 95814-
2922
Vermont
New England District Engineer, ATTN: CENAE-R, 696 Virginia Road,
Concord, MA 01742-2751
Virginia
Norfolk District Engineer, ATTN: CENAO-WR-R, 803 Front Street, Norfolk,
VA 23510-1096
Washington
Seattle District Engineer, ATTN: CENWS-OP-RG, P.O. Box 3755, Seattle,
WA 98124-3755
West Virginia
Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CEMVP-OP-R, 180 Fifth Street East,
Suite 700, St. Paul, MN 55101-1678
Wyoming
Omaha District Engineer, ATTN: CENWO-OD-R, 1616 Capitol Avenue, Omaha,
NE 68102-4901
District of Columbia
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Pacific Territories (American Samoa, Guam, & Commonwealth of the
Northern Mariana Islands)
Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
Puerto Rico and Virgin Islands
Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970,
Jacksonville, FL 32232-0019
Administrative Requirements
Plain Language
In compliance with the principles in the President's Memorandum of
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is
written using plain language. The use of ``we'' in this notice refers
to the Corps. We have also used the active voice, short sentences, and
common everyday terms except for necessary technical terms.
Paperwork Reduction Act
These NWPs will result in a net decrease in the number of
permittees who are required to submit a pre-construction notification,
especially because of the changes to NWP 48. The content of the pre-
construction notification is not changed from the current NWPs, and the
paperwork burden will decrease because of the reduced number of pre-
construction notifications submitted. The Corps estimates the decreased
paperwork burden to be 4,005 hours per year. This is based on an
average burden to complete and submit a pre-construction notification
of 11 hours, and an estimated 45 NWP 48 activities that will still
require pre-construction notifications, rather than 3,150 NWP 48
activities that were previously estimated to require either reporting
or pre-construction notification. Prospective permittees who are
required to submit a pre-construction notification for a particular
NWP, or who are requesting verification that a particular activity
qualifies for NWP authorization, may use the current standard
Department of the Army permit application form or submit the required
information in a letter. The total burden for filing pre-construction
notifications is estimated at 330,000 hours per year (11 hours times
30,000 activities per year requiring pre-construction notification).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
For the Corps Regulatory Program under Section 10 of the Rivers and
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the
current OMB approval number for information collection requirements is
maintained by the Corps of Engineers (OMB approval number 0710-0003,
which expires on August 31, 2012).
Executive Orders 12866 and 13563
Under Executive Order 12866 (58 FR 51735, October 4, 1993) and
13563 (76
[[Page 10267]]
FR 3821), we must determine whether the regulatory action is
``significant'' and therefore subject to review by OMB and the
requirements of the Executive Orders. The Executive Orders define
``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 Orders 12866 and 13563, we
determined that this action is a ``significant regulatory action'' and
it was submitted to OMB for review. It is a significant regulatory
action because it meets the fourth criterion in the Executive Order.
The most substantive changes to these NWPs are the additional
limits imposed on NWP 21, which authorizes discharges of dredged or
fill material into waters of the United States associated with surface
coal mining activities, the issuance of NWPs 51 and 52, which authorize
activities associated with renewable energy generation facilities, and
the modifications to NWP 48 which authorize existing and new commercial
shellfish aquaculture activities.
The changes to the NWPs that are most likely to result in
additional economic costs are the changes to NWP 21, especially the \1/
2\-acre and 300 linear foot limits and the prohibition against
discharges of dredged or fill material to construct valley fills. We
have prepared a brief economic analysis to estimate the additional
costs that will be imposed on the regulated public as a result of the
change to the NWPs. It is available in the docket for this action at
www.regulations.gov, docket number COE-2010-0035.
The issuance of NWPs 51 and 52 will reduce the number of renewable
energy generation facilities involving activities regulated under
section 404 and/or section 10 requiring individual permits. While some
components of land-based renewable energy generation facilities, such
as road crossings, utility lines, and building pads involving
discharges of dredged or fill material into waters of the United
States, have been authorized by NWPs such as NWPs 14, 12, and 39 in the
past, the new NWP 51 will provide DA authorization for all components
of land-based renewable energy generation facilities that involve
discharges of dredged or fill material into waters of the United
States. There was no NWP authorization available for water-based
renewable energy generation pilot projects, so the new NWP 52 will
reduce the number of those activities that require individual permits.
The NWPs support the goals of Executive Order 13563, ``Improving
Regulation and Regulatory Review'' by reducing burdens on the regulated
public through a streamlined process for obtaining Department of the
Army authorization for activities that will result in minimal
individual and cumulative adverse effects on the aquatic environment.
The NWPs reissued today, when considered as an overall package of NWPs,
will authorize more activities than were previously authorized by NWP,
such as water-based renewable energy pilot projects and new commercial
shellfish aquaculture activities.
Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the Corps to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' The issuance of NWPs does not have federalism
implications. We do not believe that the NWPs will have substantial
direct effects on the States, on the relationship between the Federal
government and the States, or on the distribution of power and
responsibilities among the various levels of government. The NWPs will
not impose any additional substantive obligations on State or local
governments. Therefore, Executive Order 13132 does not apply to these
final NWPs.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the proposed issuance and
modification of NWPs on small entities, a small entity is defined as:
(1) A small business based on Small Business Administration size
standards; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district, or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field.
The statutes under which the Corps issues, reissues, or modifies
NWPs are Section 404(e) of the Clean Water Act (33 U.S.C. 1344(e)) and
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). Under
section 404, Department of the Army (DA) permits are required for
discharges of dredged or fill material into waters of the United
States. Under section 10, DA permits are required for any structures or
other work that affect the course, location, or condition of navigable
waters of the United States. Small entities proposing to discharge
dredged or fill material into waters of the United States and/or
conduct work in navigable waters of the United States must obtain DA
permits to conduct those activities, unless a particular activity is
exempt from those permit requirements. Individual permits and general
permits can be issued by the Corps to satisfy the permit requirements
of these two statutes. Nationwide permits are a form of general permit
issued by the Chief of Engineers.
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 small
entities and other project proponents would be required to obtain
alternative forms of DA permits (i.e., standard permits, letters of
permission, or regional general permits) for activities involving
discharges of dredged or fill material into waters of the United States
or structures or work in navigable waters of the United States.
Regional general permits that authorize similar activities as the NWPs
may be available in some geographic areas, so small entities conducting
regulated activities outside those geographic areas would have to
obtain individual permits for activities that require DA permits.
[[Page 10268]]
Nationwide permits help relieve regulatory burdens on small
entities who need to obtain DA permits. They provide an expedited form
of authorization, as long as the project proponent meets all terms and
conditions of the NWPs. In FY 2010, the Corps issued 32,029 NWP
verifications, with an average processing time of 32 days. Those
numbers do not include activities that are authorized by NWP, where the
project proponent was not required to submit a pre-construction
notification or did not voluntarily seek verification that an activity
qualified for NWP authorization. The average processing time for the
2,085 standard permits issued during FY 2010 was 221 days. The NWPs
issued and reissued today are expected to result in a slight increase
in the numbers of activities potentially qualifying for NWP
authorization. The estimated numbers of activities qualifying for NWP
authorization are provided in the decision documents that were prepared
for each NWP. The NWPs issued and reissued today are not expected to
significantly increase cost or paperwork burden for authorized
activities (relative to the NWPs issued in 2007), including those
conducted by small businesses.
The costs for obtaining coverage under an NWP are low. We estimate
the average time to prepare and file a pre-construction notification,
for those activities where a pre-construction notification is required,
is 11 hours. We do not believe this constitutes a ``significant
economic impact'' on project proponents, including small businesses.
Another requirement of Section 404(e) of the Clean Water Act is
that general permits, including NWPs, authorize only those activities
that result in minimal adverse environmental effects, individually and
cumulatively. The terms and conditions of the NWPs, such as acreage or
linear foot limits, are imposed to ensure that the NWPs authorize only
those activities that result in minimal adverse effects on the aquatic
environment and other public interest review factors. In addition to
the paperwork burden of filing a pre-construction notification, many
NWPs require that low-cost, commonsense practices be used to minimize
adverse effects. These requirements also do not constitute
``significant economic impacts.''
After considering the economic impacts of these NWPs on small
entities, I certify that this action will not have a significant impact
on a substantial number of small entities. Small entities may obtain
required DA authorizations through the NWPs, in cases where there are
applicable NWPs authorizing those activities and the proposed work will
result in minimal adverse effects on the aquatic environment and other
public interest review factors. The terms and conditions of these NWPs
will not generally impose significant economic costs on small entities,
and do not generally impose higher costs on small entities than those
of the previous NWPs. If an NWP is not available to authorize a
particular activity, then another form of DA authorization, such as an
individual permit or regional general permit, must be secured. However,
as noted above, we expect a slight increase in the number of activities
that can be authorized through these NWPs, because we are issuing two
new NWPs and making substantial changes to NWP 48. The changes to NWP
48, commercial shellfish aquaculture activities, will result in fewer
project proponents having to submit pre-construction notifications or
reports to Corps districts. We have also modified NWP 48 to authorize
new commercial shellfish aquaculture activities, which were not
previously authorized by NWP. While we are making substantial changes
to NWP 21, we are also providing NWP 21 authorization without the new
limits for surface coal mining activities previously authorized under
the 2007 NWP 21, to have an equitable transition for those surface coal
mining activities that cannot complete the authorized work by March 18,
2013. For new NWP 21 activities subject to the new limits and
prohibition against valley fills, where the project proponent is
considered a small entity, the changes to that NWP will not result in a
significant economic impact because the costs for obtaining an NWP 21
authorization is generally higher when compared to other NWPs, and
approach the costs for obtaining an individual permit.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Section 202 of the UMRA, the
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating a rule for which a
written statement is needed, Section 205 of the UMRA generally requires
the agencies to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective, or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows an agency to adopt an
alternative other than the least costly, most cost-effective, or least
burdensome alternative if the agency publishes with the final rule an
explanation why that alternative was not adopted. Before an agency
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed, under Section 203 of the UMRA, a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of regulatory
proposals with significant federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
We have determined that the NWPs issued today do not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal governments, in the aggregate, or the
private sector in any one year. The NWPs are generally consistent with
current agency practice, do not impose new substantive requirements and
therefore do not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and Tribal
governments, in the aggregate, or the private sector in any one year.
Therefore, the NWPs issued today are not subject to the requirements of
Sections 202 and 205 of the UMRA. For the same reasons, we have
determined that the NWPs contains no regulatory requirements that might
significantly or uniquely affect small governments. Therefore, the
issuance 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
[[Page 10269]]
the regulatory action meets both criteria, we must evaluate the
environmental health or safety effects of the proposed rule on
children, and explain why the regulation is preferable to other
potentially effective and reasonably feasible alternatives.
The NWPs issued today are not subject to this Executive Order
because they are not economically significant as defined in Executive
Order 12866. In addition, these NWPs do not concern an environmental or
safety risk that we have reason to believe may have a disproportionate
effect on children.
Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires agencies to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' The phrase
``policies that have tribal implications'' is defined in the Executive
Order to include regulations that have ``substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
government and the Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes.''
The NWPs issued today do not have tribal implications. They are
generally consistent with current agency practice and will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and the Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes. Therefore, Executive Order 13175 does not
apply to this proposal. Corps districts are conducting government-to-
government consultation with Indian tribes to develop regional
conditions that help protect tribal rights and trust resources, and to
facilitate compliance with general condition 17, Tribal Rights.
Environmental Documentation
A decision document, which includes an environmental assessment and
Finding of No Significant Impact (FONSI), has been prepared for each
NWP. These decision documents are available at: http://www.regulations.gov (docket ID number COE-2010-0035). They are also
available by contacting Headquarters, U.S. Army Corps of Engineers,
Operations and Regulatory Community of Practice, 441 G Street NW.,
Washington, DC 20314-1000.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. We will submit a report containing the final NWPs and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. The proposed NWPs are not a ``major rule'' as
defined by 5 U.S.C. 804(2).
Executive Order 12898
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each federal agency conduct its programs, policies,
and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
The NWPs issued today are not expected to negatively impact any
community, and therefore are not expected to cause any
disproportionately high and adverse impacts to minority or low-income
communities.
Executive Order 13211
The 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. Some of
the NWPs authorize activities that support the supply and distribution
of energy.
Authority
We are issuing new NWPs and reissuing existing NWPs 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: February 13, 2012.
Michael J. Walsh,
Major General, US 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 and 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
[[Page 10270]]
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
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. 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
B. Nationwide Permits
1. Aids to Navigation. The placement of aids to navigation and
regulatory markers which are approved by and installed in accordance
with the requirements of the U.S. Coast Guard (see 33 CFR, chapter I,
subchapter C, part 66). (Section 10)
2. Structures in Artificial Canals. Structures constructed in
artificial canals within principally residential developments where the
connection of the canal to a navigable water of the United States has
been previously authorized (see 33 CFR 322.5(g)). (Section 10)
3. Maintenance. (a) The repair, rehabilitation, or replacement of
any previously authorized, currently serviceable structure, or fill, or
of any currently serviceable structure or fill authorized by 33 CFR
330.3, provided that the structure or fill is not to be put to uses
differing from those uses specified or contemplated for it in the
original permit or the most recently authorized modification. Minor
deviations in the structure's configuration or filled area, including
those due to changes in materials, construction techniques,
requirements of other regulatory agencies, or current construction
codes or safety standards that are necessary to make the repair,
rehabilitation, or replacement are authorized. 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
necessary to conduct the maintenance activity. Appropriate measures
must be taken to maintain normal downstream flows and minimize flooding
to the maximum extent practicable, when temporary structures, work, and
discharges, including cofferdams, are necessary for construction
activities, access fills, or dewatering of construction sites.
Temporary fills must consist of materials, and be placed in a manner,
that will not be eroded by expected high flows. Temporary fills
[[Page 10271]]
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 31). 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 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 31.) (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 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 31.) (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 the construction, maintenance,
or repair of utility lines, including outfall and intake structures,
and the associated excavation, backfill, or bedding for the utility
lines, in all waters of the United States, provided there is no change
in pre-construction contours. A ``utility line'' is defined as any pipe
or pipeline for the transportation of any gaseous, liquid, liquescent,
or slurry substance, for any purpose, and any cable, line, or wire for
the transmission for any purpose of electrical energy, telephone, and
telegraph messages, and radio and
[[Page 10272]]
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.
This NWP also authorizes temporary structures, fills, and work
necessary to conduct the utility line activity. Appropriate measures
must be taken to maintain normal downstream flows and minimize flooding
to the maximum extent practicable, when temporary structures, work, and
discharges, including cofferdams, are necessary for construction
activities, access fills, or dewatering of construction sites.
Temporary fills must consist of materials, and be placed in a manner,
that will not be eroded by expected high flows. Temporary fills must be
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be
revegetated, as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if any of the following criteria are met: (1) The activity involves
mechanized land clearing in a forested wetland for the utility line
right-of-way; (2) a section 10 permit is required; (3) the utility line
in waters of the United States, excluding overhead lines, exceeds 500
feet; (4) the utility line is placed within a jurisdictional area
(i.e., water of the United States), and it runs parallel to 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 31.) (Sections
10 and 404)
Note 1: Where the proposed utility line is constructed or
installed in navigable waters of the United States (i.e., section 10
waters) 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 (NOAA), National
Ocean Service (NOS), for charting the utility line to protect
navigation.
Note 2: Access roads used for both construction and maintenance
may be authorized, provided they meet the terms and conditions of
this NWP. Access roads used solely for construction of the utility
line must be removed upon completion of the work, in accordance with
the requirements for temporary fills.
Note 3: Pipes or pipelines used to transport gaseous, liquid,
liquescent, or slurry substances over navigable waters of the United
States are considered to be bridges, not utility lines, and may
require a permit from the U.S. Coast Guard pursuant to Section 9 of
the Rivers and Harbors Act of 1899. However, any discharges of
dredged or fill material into waters of the United States associated
with such pipelines will require a section 404 permit (see NWP 15).
Note 4: 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.
13. Bank Stabilization. Bank stabilization activities necessary for
erosion prevention, provided the activity meets all of the following
criteria:
(a) No material is placed in excess of the minimum needed for
erosion protection;
(b) The activity is no more than 500 feet in length along the bank,
unless the district engineer waives this criterion by making a written
determination concluding that the discharge will result in minimal
adverse effects;
(c) The activity will not exceed an average of one cubic yard per
running foot placed along the bank below the plane of the ordinary high
water mark or the high tide line, unless the district engineer waives
this criterion by making a written determination concluding that the
discharge will result in minimal adverse 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 minimal adverse 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
[[Page 10273]]
expected high flows (properly anchored trees and treetops may be used
in low energy areas); and,
(g) The activity is not a stream channelization activity.
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. 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.
Invasive plant species shall not 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 31.)
(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 31.) (Sections 10 and 404)
Note: Some discharges for the construction of farm roads or
forest roads, or temporary roads for moving mining equipment, may
qualify for an exemption under Section 404(f) of the Clean Water Act
(see 33 CFR 323.4).
15. U.S. Coast Guard Approved Bridges. Discharges of dredged or
fill material incidental to the construction of 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 and 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 31.) (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 31.) (Sections 10 and 404)
19. Minor Dredging. Dredging of no more than 25 cubic yards below
the plane of the ordinary high water mark or the mean high water mark
from navigable waters of the United States (i.e., section 10 waters).
This NWP does not authorize the dredging or degradation through
siltation of coral reefs, sites that support submerged aquatic
vegetation (including sites where submerged aquatic vegetation is
documented to exist but may not be present in a given year), anadromous
fish spawning areas, or wetlands, or the connection of canals or other
artificial waterways to navigable waters of the United States (see 33
CFR 322.5(g)). (Sections 10 and 404)
20. Response Operations for Oil and Hazardous Substances.
Activities conducted in response to a discharge or release of oil and
hazardous substances that are subject to the National Oil and Hazardous
Substances Pollution
[[Page 10274]]
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.
(a) Previously Authorized Surface Coal Mining Activities. Surface
coal mining activities that were previously authorized by the NWP 21
issued on March 12, 2007 (see 72 FR 11092), are authorized by this NWP,
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 Interior, Office of
Surface Mining Reclamation and Enforcement;
(2) The permittee must submit a letter to the district engineer
requesting re-verification of the NWP 21 authorization. The letter must
describe any changes from the previous NWP 21 verification. The letter
must be submitted to the district engineer by February 1, 2013;
(3) The loss of waters of the United States is not greater than the
loss of waters of the United States previously verified by the district
engineer under the NWP 21 issued on March 12, 2007 (i.e., there are no
proposed expansions of surface coal mining activities in waters of the
United States);
(4) The district engineer provides written verification that those
activities will result in minimal individual and cumulative adverse
effects and are authorized by NWP 21, including currently applicable
regional conditions and any activity-specific conditions added to the
NWP authorization by the district engineer, such as compensatory
mitigation requirements; and
(5) If the permittee does not receive a written verification from
the district engineer prior to March 18, 2013, the permittee must cease
all activities until such verification is received. The district
engineer may extend the February 1, 2013, deadline by so notifying the
permittee in writing, but the permittee must still cease all activities
if he or she has not received written verification from the Corps by
March 18, 2013, until such verification is received.
(b) Other Surface Coal Mining Activities. Surface coal mining
activities that were not previously authorized by the NWP 21 issued on
March 12, 2007, are authorized by this NWP, 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 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, including the loss of no
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 individual and cumulative adverse effects. 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: For activities under paragraph (b) of this NWP, the
permittee must submit a pre-construction notification to the district
engineer and receive written authorization prior to commencing the
activity. (See general condition 31.) (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 31.) 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 likelihood
that submerged vessels may be historic properties.
23. Approved Categorical Exclusions. Activities undertaken,
assisted, authorized, regulated, funded, or financed, in whole or in
part, by another Federal agency or department where:
(a) That agency or department has determined, pursuant to the
Council on Environmental Quality's implementing regulations for the
National Environmental Policy Act (40 CFR part 1500 et seq.), that the
activity is categorically excluded from environmental documentation,
because it is included within a category of actions which neither
individually nor 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 31). The activities that require
pre-construction notification are listed in the appropriate Regulatory
Guidance Letters. (Sections 10 and 404)
[[Page 10275]]
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/Missions/CivilWorks/RegulatoryProgramandPermits/GuidanceLetters.aspx. 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 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., 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
[[Page 10276]]
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 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 31), 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
U.S. 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, including the loss of no 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. This NWP does not authorize
discharges into non-tidal wetlands adjacent to tidal waters.
Subdivisions: For residential subdivisions, the aggregate total
loss of waters of United States authorized by this NWP cannot exceed
\1/2\-acre. This includes any loss of waters of the United States
associated with development of individual subdivision lots.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 31.) (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
[[Page 10277]]
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 constructed design capacities of the flood control
facility. If no evidence of the constructed capacity exists, the
approved capacity will be used. The documentation will also include
best management practices to ensure that the impacts to the aquatic
environment are minimal, especially in maintenance areas where there
are no constructed channels. (The Corps may request maintenance records
in areas where there has not been recent maintenance.) Revocation or
modification of the final determination of the maintenance baseline can
only be done in accordance with 33 CFR 330.5. Except in emergencies as
described below, this NWP cannot be used until the district engineer
approves the maintenance baseline and determines the need for
mitigation and any regional or activity-specific conditions. Once
determined, the maintenance baseline will remain valid for any
subsequent reissuance of this NWP. This NWP does not authorize
maintenance of a flood control facility that has been abandoned. A
flood control facility will be considered abandoned if it has operated
at a significantly reduced capacity without needed maintenance being
accomplished in a timely manner.
Mitigation: The district engineer will determine any required
mitigation one-time only for impacts associated with maintenance work
at the same time that the maintenance baseline is approved. Such one-
time mitigation will be required when necessary to ensure that adverse
environmental impacts are no more than minimal, both individually and
cumulatively. Such mitigation will only be required once for any
specific reach of a flood control project. However, if one-time
mitigation is required for impacts associated with maintenance
activities, the district engineer will not delay needed maintenance,
provided the district engineer and the permittee establish a schedule
for identification, approval, development, construction and completion
of any such required mitigation. Once the one-time mitigation described
above has been completed, or a determination made that mitigation is
not required, no further mitigation will be required for maintenance
activities within the maintenance baseline. In determining appropriate
mitigation, the district engineer will give special consideration to
natural water courses that have been included in the maintenance
baseline and require compensatory mitigation and/or best management
practices as appropriate.
Emergency Situations: In emergency situations, this NWP may be used
to authorize maintenance activities in flood control facilities for
which no maintenance baseline has been approved. Emergency situations
are those which would result in an unacceptable hazard to life, a
significant loss of property, or an immediate, unforeseen, and
significant economic hardship if action is not taken before a
maintenance baseline can be approved. In such situations, the
determination of mitigation requirements, if any, may be deferred until
the emergency has been resolved. Once the emergency has ended, a
maintenance baseline must be established expeditiously, and mitigation,
including mitigation for maintenance conducted during the emergency,
must be required as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer before any maintenance work is
conducted (see general condition 31). The pre-construction notification
may be for activity-specific maintenance or for maintenance of the
entire flood control facility by submitting a five-year (or less)
maintenance plan. The pre-construction notification must include a
description of the maintenance baseline and the dredged material
disposal site. (Sections 10 and 404)
32. Completed Enforcement Actions. Any structure, work, or
discharge of dredged or fill material remaining in place or undertaken
for mitigation, restoration, or environmental benefit in compliance
with either:
(i) The terms of a final written Corps non-judicial settlement
agreement resolving a violation of Section 404 of the Clean Water Act
and/or Section 10 of the Rivers and Harbors Act of 1899; or the terms
of an EPA 309(a) order on consent resolving a violation of Section 404
of the Clean Water Act, provided that:
(a) The unauthorized activity affected no more than 5 acres of non-
tidal waters or 1 acre of tidal waters;
(b) The settlement agreement provides for environmental benefits,
to an equal or greater degree, than the environmental detriments caused
by the unauthorized activity that is authorized by this NWP; and
(c) The district engineer issues a verification letter authorizing
the activity subject to the terms and conditions of this NWP and the
settlement agreement, including a specified completion date; or
(ii) The terms of a final Federal court decision, consent decree,
or settlement agreement resulting from an enforcement action brought by
the United States under Section 404 of the Clean Water Act and/or
Section 10 of the Rivers and Harbors Act of 1899; or
(iii) The terms of a final court decision, consent decree,
settlement agreement, or non-judicial settlement agreement resulting
from a natural resource damage claim brought by a trustee or trustees
for natural resources (as defined by the National Contingency Plan at
40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107
of the Comprehensive Environmental Response, Compensation and Liability
Act, Section 312 of the National Marine Sanctuaries Act, Section 1002
of the Oil Pollution Act of 1990, or the Park System Resource
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is
required.
Compliance is a condition of the NWP itself. Any authorization
under this NWP is automatically revoked if the permittee does not
comply with the terms of this NWP or the terms of the court decision,
consent decree, or judicial/non-judicial settlement agreement. This NWP
does not apply to any activities occurring after the date of the
decision, decree, or agreement that are not for the purpose of
mitigation, restoration, or environmental benefit. Before reaching any
settlement agreement, the Corps will ensure compliance with the
provisions of 33
[[Page 10278]]
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 effects on aquatic
resources. 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 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
(see general condition 31). 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 31.) (Section
404)
35. Maintenance Dredging of Existing Basins. Excavation and removal
of accumulated sediment for maintenance of existing marina basins,
access channels to marinas or boat slips, and boat slips to previously
authorized depths or controlling depths for ingress/egress, whichever
is less, provided the dredged material is deposited at an area that has
no waters of the United States site and proper siltation controls are
used. (Section 10)
36. Boat Ramps. Activities required for the construction of boat
ramps, provided the activity meets all of the following criteria:
(a) The discharge into waters of the United States does not exceed
50 cubic yards of concrete, rock, crushed stone or gravel into forms,
or in the form of pre-cast concrete planks or slabs, unless the
district engineer waives the 50 cubic yard limit by making a written
determination concluding that the discharge will result in minimal
adverse 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 minimal
adverse 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 31.) (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 31). (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
[[Page 10279]]
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 31.) (Sections 10 and 404)
Note: Activities undertaken entirely on a Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA)
site by authority of CERCLA as approved or required by EPA, are not
required to obtain permits under Section 404 of the Clean Water Act
or Section 10 of the Rivers and Harbors Act.
39. Commercial and Institutional Developments. Discharges of
dredged or fill material into non-tidal waters of the United States for
the construction or expansion of commercial and institutional building
foundations and building pads and attendant features that are necessary
for the use and maintenance of the structures. Attendant features may
include, but are not limited to, roads, parking lots, garages, yards,
utility lines, storm water management facilities, and recreation
facilities such as playgrounds and playing fields. Examples of
commercial developments include retail stores, industrial facilities,
restaurants, 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, including the loss of no 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. 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 31.) (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, including the loss of no 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. 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 31.) (Section 404)
Note: Some discharges for agricultural activities may qualify
for an exemption under Section 404(f) of the Clean Water Act (see 33
CFR 323.4). This NWP authorizes the construction of farm ponds that
do not qualify for the Clean Water Act Section 404(f)(1)(C)
exemption because of the recapture provision at Section 404(f)(2).
41. Reshaping Existing Drainage Ditches. Discharges of dredged or
fill material into non-tidal waters of the United States, excluding
non-tidal wetlands adjacent to tidal waters, to modify the cross-
sectional configuration of currently serviceable drainage ditches
constructed in waters of the United States, for the purpose of
improving water quality by regrading the drainage ditch with gentler
slopes, which can reduce erosion, increase growth of vegetation, and
increase uptake of nutrients and other substances by vegetation. The
reshaping of the ditch cannot increase drainage capacity beyond the
original as-built capacity nor can it expand the area drained by the
ditch as originally constructed (i.e., the capacity of the ditch must
be the same as originally constructed and it cannot drain additional
wetlands or other waters of the United States). Compensatory mitigation
is not required because the work is designed to improve water quality.
This NWP does not authorize the relocation of drainage ditches
constructed in waters of the United States; the location of the
centerline of the reshaped drainage ditch must be approximately the
same as the location of the centerline of the original drainage ditch.
This NWP does not authorize stream channelization or stream relocation
projects.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity,
if more than 500 linear feet of drainage ditch will be reshaped. (See
general condition 31.) (Section 404)
42. Recreational Facilities. Discharges of dredged or fill material
into non-tidal waters of the United States for the construction or
expansion of recreational facilities. Examples of recreational
facilities that may be authorized by this NWP include playing fields
(e.g., football fields, baseball fields), basketball courts, tennis
courts, hiking trails, bike paths, golf courses, ski areas, horse
paths, nature centers, and campgrounds (excluding recreational vehicle
parks). This NWP also authorizes the construction or expansion of small
support facilities, such as maintenance and storage buildings and
stables that are directly related to the recreational activity, but it
does not authorize the construction of hotels, restaurants, racetracks,
stadiums, arenas, or similar facilities.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States, including the loss of no more
than 300 linear feet of stream bed, unless for intermittent and
ephemeral stream beds the district engineer waives the 300 linear foot
limit by making a written determination concluding that the discharge
will result in minimal adverse effects. 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 31.) (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
[[Page 10280]]
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 are determined to be
waste treatment systems under 33 CFR 328.3(a)(8) are not waters of the
United States, and maintenance of these waste treatment systems
generally 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, including the loss of no 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. This NWP does not authorize
discharges into non-tidal wetlands adjacent to tidal waters. This NWP
does not authorize discharges of dredged or fill material for the
construction of new stormwater management facilities in perennial
streams.
Notification: For the construction of new stormwater management
facilities, or the expansion of existing stormwater management
facilities, the permittee must submit a pre-construction notification
to the district engineer prior to commencing the activity. (See general
condition 31.) Maintenance activities do not require pre-construction
notification if they are limited to restoring the original design
capacities of the stormwater management facility. (Section 404)
44. Mining Activities. Discharges of dredged or fill material into
non-tidal waters of the United States for mining activities, except for
coal mining activities. The discharge must not cause the loss of
greater than \1/2\-acre of non-tidal waters of the United States,
including the loss of no 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.
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 31.) If reclamation is required by other
statutes, then a copy of the reclamation plan must be submitted with
the pre-construction notification. (Sections 10 and 404)
45. Repair of Uplands Damaged by Discrete Events. This NWP
authorizes discharges of dredged or fill material, including dredging
or excavation, into all waters of the United States for activities
associated with the restoration of upland areas damaged by storms,
floods, or other discrete events. This NWP authorizes bank
stabilization to protect the restored uplands. The restoration of the
damaged areas, including any bank stabilization, must not exceed the
contours, or ordinary high water mark, that existed before the damage
occurred. The district engineer retains the right to determine the
extent of the pre-existing conditions and the extent of any restoration
work authorized by this NWP. The work must commence, or be under
contract to commence, within two years of the date of damage, unless
this condition is waived in writing by the district engineer. This NWP
cannot be used to reclaim lands lost to normal erosion processes over
an extended period.
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 31) within
12-months of the date of the damage. The pre-construction notification
should include documentation, such as a recent topographic survey or
photographs, to justify the extent of the proposed restoration.
(Sections 10 and 404)
Note: 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) are determined to be waters of the
United States. The discharge must not cause the loss of greater than
one acre of waters of the United States. This NWP does not authorize
discharges of dredged or fill material into ditches constructed in
streams or other waters of the United States, or in streams that have
been relocated in uplands. This NWP does not authorize discharges of
dredged or fill material that increase the capacity of the ditch and
drain those areas determined to be waters of the United States prior to
construction of the ditch.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 31.) (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
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 currently 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, or contract which
establishes an enforceable property interest for the operator. 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 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;
or,
(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.
This NWP also authorizes commercial shellfish aquaculture
activities in new project areas, provided the project proponent has
obtained a valid
[[Page 10281]]
authorization, such as a lease or permit issued by an appropriate state
or local government agency, and those activities do not directly affect
more than \1/2\-acre of submerged aquatic vegetation beds.
Notification: The permittee must submit a pre-construction
notification to the district engineer if: (1) Dredge harvesting,
tilling, or harrowing is conducted in areas inhabited by submerged
aquatic vegetation; (2) the activity will include a species not
previously cultivated in the waterbody; (3) the activity involves a
change from bottom culture to floating or suspended culture; or (4) the
activity occurs in a new project area. (See general condition 31.)
In addition to the information required by paragraph (b) of general
condition 31, 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 cultivated species; and (3)
whether canopy predator nets are being used. (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 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 (SMCRA) of
1977. 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 31.) (Sections 10 and 404)
50. Underground Coal Mining Activities. Discharges of dredged or
fill material into non-tidal waters of the United States associated
with underground coal mining and reclamation operations provided the
activities are authorized, or are currently being processed as part of
an integrated permit processing procedure, by the Department of
Interior, 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, including the loss of no 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. 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 31.) 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, including the loss of no 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. 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 31.) (Sections 10 and 404)
Note 1: Utility lines constructed to transfer the energy from
the land-based renewable generation 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 and complete
linear project. Those utility lines may be authorized by NWP 12 or
another Department of the Army authorization. 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, then NWP 12 shall be
used if those activities meet the terms and conditions of NWP 12,
including any applicable regional conditions and any case-specific
conditions imposed by the district engineer.
Note 2: 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
[[Page 10282]]
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 or hydrokinetic
renewable energy generation pilot 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 no 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 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.
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 31.) (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 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 under 33 U.S.C. 408.
Note 3: If the pilot project, including any transmission lines,
is 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: 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.
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.
[[Page 10283]]
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 it benefits the aquatic environment (e.g., stream restoration or
relocation activities).
10. Fills Within 100-Year Floodplains. The activity must comply
with applicable FEMA-approved state or local floodplain management
requirements.
11. Equipment. Heavy equipment working in wetlands or mudflats must
be placed on mats, or other measures must be taken to minimize soil
disturbance.
12. Soil Erosion and Sediment Controls. Appropriate soil erosion
and sediment controls must be used and maintained in effective
operating condition during construction, and all exposed soil and other
fills, as well as any work below the ordinary high water mark or high
tide line, must be permanently stabilized at the earliest practicable
date. Permittees are encouraged to perform work within waters of the
United States during periods of low-flow or no-flow.
13. Removal of Temporary Fills. Temporary fills must be removed in
their entirety and the affected areas returned to pre-construction
elevations. The affected areas must be revegetated, as appropriate.
14. Proper Maintenance. Any authorized structure or fill shall be
properly maintained, including maintenance to ensure public safety 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. No activity may occur in a component of
the National Wild and Scenic River System, or in a river officially
designated by Congress as a ``study river'' for possible inclusion in
the system while the river is in an official study status, unless the
appropriate Federal agency with direct management responsibility for
such river, has determined in writing that the proposed activity will
not adversely affect the Wild and Scenic River designation or study
status. Information on Wild and Scenic Rivers may be obtained from the
appropriate Federal land management agency 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).
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.
(b) Federal agencies should follow their own procedures for
complying with the requirements of the ESA. Federal permittees must
provide the district engineer with the appropriate documentation to
demonstrate compliance with those requirements. The district engineer
will review the documentation and determine whether it is sufficient to
address ESA compliance for the NWP activity, or whether additional ESA
consultation is necessary.
(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 project, or if the project is located in designated critical
habitat, and shall not begin work on the activity until notified by the
district engineer that the requirements of the ESA have been satisfied
and that the activity is authorized. For activities that might affect
Federally listed endangered or threatened species or designated
critical habitat, the pre-construction notification must include the
name(s) of the endangered or threatened species that might be affected
by the proposed work 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
project, and has so notified the Corps, the applicant shall not begin
work until the Corps has provided notification the proposed activities
will have ``no effect'' on listed species or critical habitat, or until
Section 7 consultation has been completed. 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 regional endangered
species conditions to the NWPs.
(e) Authorization of an activity by a NWP does not authorize the
``take'' of a threatened or endangered species as defined under the
ESA. In the absence of separate authorization (e.g., an ESA Section 10
Permit, a Biological Opinion with ``incidental take'' provisions, etc.)
from the U.S. FWS or the NMFS, 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 10284]]
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 U.S. FWS and NMFS or their world wide web pages at
http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.noaa.gov/fisheries.html respectively.
19. Migratory Birds and Bald and Golden Eagles. The permittee is
responsible for obtaining any ``take'' permits required under the U.S.
Fish and Wildlife Service's regulations governing compliance with the
Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act.
The permittee should contact the appropriate local office of the U.S.
Fish and Wildlife Service to determine if such ``take'' permits are
required 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. Federal permittees must provide the district engineer
with the appropriate documentation to demonstrate compliance with those
requirements. The district engineer will review the documentation and
determine whether it is sufficient to address section 106 compliance
for the NWP activity, or whether additional section 106 consultation is
necessary.
(c) Non-federal permittees must submit a pre-construction
notification to the district engineer if the authorized activity may
have the potential to cause effects to any historic properties listed
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, and 38, notification is required in accordance with general
condition 31, for any activity proposed in the designated critical
resource waters including wetlands adjacent to those waters. The
district engineer may authorize activities under these NWPs only after
it is determined that the impacts to the critical resource waters will
be no more than minimal.
[[Page 10285]]
23. Mitigation. The district engineer will consider the following
factors when determining appropriate and practicable mitigation
necessary to ensure that adverse effects on the aquatic environment are
minimal:
(a) The activity must be designed and constructed to avoid and
minimize adverse effects, both temporary and permanent, to waters of
the United States to the maximum extent practicable at the project site
(i.e., on site).
(b) Mitigation in all its forms (avoiding, minimizing, rectifying,
reducing, or compensating for resource losses) will be required to the
extent necessary to ensure that the adverse effects to the aquatic
environment are minimal.
(c) Compensatory mitigation at a minimum one-for-one ratio will be
required for all wetland losses that exceed \1/10\-acre and require
pre-construction notification, unless the district engineer determines
in writing that either some other form of mitigation would be more
environmentally appropriate or the adverse effects of the proposed
activity are minimal, and provides a project-specific waiver of this
requirement. For wetland losses of \1/10\-acre or less that require
pre-construction notification, the district engineer may determine on a
case-by-case basis that compensatory mitigation is required to ensure
that the activity results in minimal adverse effects on the aquatic
environment. 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 minimal adverse
effects on the aquatic environment.
(2) Since the likelihood of success is greater and the impacts to
potentially valuable uplands are reduced, wetland restoration should be
the first compensatory mitigation option considered.
(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)-(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.
(d) For losses of streams or other open waters that require pre-
construction notification, the district engineer may require
compensatory mitigation, such as stream rehabilitation, enhancement, or
preservation, to ensure that the activity results in minimal adverse
effects on the aquatic environment.
(e) Compensatory mitigation will not be used to increase the
acreage losses allowed by the acreage limits of the NWPs. For example,
if an NWP has an acreage limit of \1/2\-acre, it cannot be used to
authorize any project resulting in the loss of greater than \1/2\-acre
of waters of the United States, even if compensatory mitigation is
provided that replaces or restores some of the lost waters. However,
compensatory mitigation can and should be used, as necessary, to ensure
that a project already meeting the established acreage limits also
satisfies the minimal impact requirement associated with the NWPs.
(f) Compensatory mitigation plans for projects in or near streams
or other open waters will normally include a requirement for the
restoration or establishment, maintenance, and legal protection (e.g.,
conservation easements) of riparian areas next to open waters. In some
cases, riparian areas may be the only compensatory mitigation required.
Riparian areas should consist of native species. The width of the
required riparian area will address documented water quality or aquatic
habitat loss concerns. Normally, the riparian area will be 25 to 50
feet wide on each side of the stream, but the district engineer may
require slightly wider riparian areas to address documented water
quality or habitat loss concerns. 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.
(g) Permittees may propose the use of mitigation banks, in-lieu fee
programs, or separate permittee-responsible mitigation. For activities
resulting in the loss of marine or estuarine resources, permittee-
responsible compensatory 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.
(h) Where certain functions and services of waters of the United
States are permanently adversely affected, such as the conversion of a
forested or scrub-shrub wetland to a herbaceous wetland in a
permanently maintained utility line right-of-way, mitigation may be
required to reduce the adverse effects of the project to the minimal
level.
24. Safety of Impoundment Structures. To ensure that all
impoundment structures are safely 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.
[[Page 10286]]
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.''
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(Transferee)
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(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 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 work 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
work and mitigation.
31. 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 project, 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 ``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 project;
(3) A description of the proposed project; the project's purpose;
direct and indirect adverse environmental effects the project 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; any other NWP(s), regional
general permit(s), or individual permit(s) used or intended to be used
to authorize any part of the proposed project or any related activity.
The description should be sufficiently detailed to allow the district
engineer to determine that the adverse effects of the project will be
minimal and to determine the need for compensatory mitigation. Sketches
should be provided
[[Page 10287]]
when necessary to show that the activity complies with the terms of the
NWP. (Sketches usually clarify the project 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);
(4) 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;
(5) If the proposed activity will result in the loss of greater
than \1/10\-acre of wetlands and a PCN is required, the prospective
permittee must submit a statement describing how the mitigation
requirement will be satisfied, or explaining why the adverse effects
are minimal and why compensatory mitigation should not be required. As
an alternative, the prospective permittee may submit a conceptual or
detailed mitigation plan.
(6) If any listed species or designated critical habitat might be
affected or is in the vicinity of the project, or if the project is
located in designated critical habitat, for non-Federal applicants the
PCN must include the name(s) of those endangered or threatened species
that might be affected by the proposed work or utilize the designated
critical habitat that may be affected by the proposed work. Federal
applicants must provide documentation demonstrating compliance with the
Endangered Species Act; and
(7) For an activity that may affect a historic property listed on,
determined to be eligible for listing on, or potentially eligible for
listing on, the National Register of Historic Places, for non-Federal
applicants the PCN must state which historic property may be affected
by the proposed work or include a vicinity map indicating the location
of the historic property. Federal applicants must provide documentation
demonstrating compliance with Section 106 of the National Historic
Preservation Act.
(c) Form of Pre-Construction Notification: The standard individual
permit application form (Form ENG 4345) may be used, but the completed
application form must clearly indicate that it is a PCN and must
include all of the information required in paragraphs (b)(1) through
(7) of this general condition. A letter containing the required
information may also be used.
(d) Agency Coordination: (1) The district engineer will consider
any comments from Federal and state agencies concerning the proposed
activity's compliance with the terms and conditions of the NWPs and the
need for mitigation to reduce the project's adverse environmental
effects to a minimal level.
(2) For all NWP activities that require pre-construction
notification and result in the loss of greater than \1/2\-acre of
waters of the United States, for 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 intermittent
and ephemeral stream bed, and for all NWP 48 activities that require
pre-construction notification, 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 (U.S. FWS, state natural resource or water
quality agency, EPA, State Historic Preservation Officer (SHPO) or
Tribal Historic Preservation Office (THPO), and, if appropriate, the
NMFS). With the exception of NWP 37, these agencies will 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 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 to the aquatic environment of the proposed
activity are 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.
(3) In cases of where the prospective permittee is not a Federal
agency, the district engineer will provide a response to NMFS within 30
calendar days of receipt of any Essential Fish Habitat conservation
recommendations, as required by Section 305(b)(4)(B) of the Magnuson-
Stevens Fishery Conservation and Management Act.
(4) Applicants are encouraged to provide the Corps 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. 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
intermittent or ephemeral streams or of an otherwise applicable limit,
as provided for in NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51 or
52, the district engineer will only grant the waiver upon a written
determination that the NWP activity will result in minimal adverse
effects. When making minimal 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
[[Page 10288]]
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 assessment method is available and practicable to use, that
assessment method may be used by the district engineer to assist in the
minimal adverse effects determination. The district engineer may add
case-specific special conditions to the NWP authorization to address
site-specific environmental concerns.
2. If the proposed activity requires a PCN and will result in a
loss of greater than \1/10\-acre of wetlands, the prospective permittee
should submit a mitigation proposal with the PCN. Applicants may also
propose compensatory mitigation for projects with smaller impacts. The
district engineer will consider any proposed compensatory mitigation
the applicant has included in the proposal in determining whether the
net adverse environmental effects to the aquatic environment of the
proposed activity are minimal. The compensatory mitigation proposal may
be either conceptual or detailed. If the district engineer determines
that the activity complies with the terms and conditions of the NWP and
that the adverse effects on the aquatic environment are minimal, after
considering mitigation, the district engineer will notify the permittee
and include any 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 no more than minimal
adverse effects on the aquatic environment. If the net adverse effects
of the project on the aquatic environment (after consideration of the
compensatory mitigation proposal) are determined by the district
engineer to be minimal, the district engineer will provide a timely
written response to the applicant. The response will state that the
project can proceed under the terms and conditions of the NWP,
including any activity-specific conditions added to the NWP
authorization by the district engineer.
3. If the district engineer determines that the adverse effects of
the proposed work are more than minimal, then the district engineer
will notify the applicant either: (a) That the project does not qualify
for authorization under the NWP and instruct the applicant on the
procedures to seek authorization under an individual permit; (b) that
the project is authorized under the NWP subject to the applicant's
submission of a mitigation plan that would reduce the adverse effects
on the aquatic environment to the minimal level; or (c) that the
project is authorized under the NWP with specific modifications or
conditions. Where the district engineer determines that mitigation is
required to ensure no more than minimal adverse effects occur to the
aquatic environment, the activity will be authorized within the 45-day
PCN period, with activity-specific conditions that state the mitigation
requirements. The authorization will include the necessary conceptual
or detailed mitigation or a requirement that the applicant submit a
mitigation plan that would reduce the adverse effects on the aquatic
environment to the minimal level. When mitigation is required, no work
in waters of the United States may occur until the district engineer
has approved a specific mitigation plan 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.
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.
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
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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 linear feet of stream bed that is filled or excavated.
Waters of the United States temporarily filled, flooded, excavated, or
drained, but restored to pre-construction contours and elevations after
construction, are not included in the measurement of loss of waters of
the United States. Impacts resulting from activities eligible for
exemptions under Section 404(f) of the Clean Water Act are not
considered when calculating the loss of waters of the United States.
Non-tidal wetland: A non-tidal wetland is a wetland that is not
subject to the ebb and flow of tidal waters. The definition of a
wetland can be found at 33 CFR 328.3(b). Non-tidal wetlands contiguous
to tidal waters are located landward of the high tide line (i.e.,
spring high tide line).
Open water: For purposes of the NWPs, an open water is any area
that in a year with normal patterns of precipitation has water flowing
or standing above ground to the extent that an ordinary high water mark
can be determined. Aquatic vegetation within the area of standing or
flowing water is either non-emergent, sparse, or absent. Vegetated
shallows are considered to be open waters. Examples of ``open waters''
include rivers, streams, lakes, and ponds.
Ordinary High Water Mark: An ordinary high water mark is a line on
the shore established by the fluctuations of water and indicated by
physical characteristics, or by other appropriate means that consider
the characteristics of the surrounding areas (see 33 CFR 328.3(e)).
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 adjacent 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.)
[[Page 10290]]
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 improve the
quality (i.e., by reducing the concentration of nutrients, sediments,
hazardous substances and other pollutants) of stormwater runoff.
Stream bed: The substrate of the stream channel between the
ordinary high water marks. The substrate may be bedrock or inorganic
particles that range in size from clay to boulders. Wetlands contiguous
to the stream bed, but outside of the ordinary high water marks, are
not considered part of the stream bed.
Stream channelization: The manipulation of a stream's course,
condition, capacity, or location that causes more than minimal
interruption of normal stream processes. A channelized stream remains a
water of the United States.
Structure: An object that is arranged in a definite pattern of
organization. Examples of structures include, without limitation, any
pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater,
bulkhead, revetment, riprap, jetty, artificial island, artificial reef,
permanent mooring structure, power transmission line, permanently
moored floating vessel, piling, aid to navigation, or any other manmade
obstacle or obstruction.
Tidal wetland: A tidal wetland is a wetland (i.e., water of the
United States) that is inundated by tidal waters. The definitions of a
wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR
328.3(f), respectively. Tidal waters rise and fall in a predictable and
measurable rhythm or cycle due to the gravitational pulls of the moon
and sun. Tidal waters end where the rise and fall of the water surface
can no longer be practically measured in a predictable rhythm due to
masking by other waters, wind, or other effects. Tidal wetlands are
located channelward of the high tide line, which is defined at 33 CFR
328.3(d).
Vegetated shallows: Vegetated shallows are special aquatic sites
under the 404(b)(1) Guidelines. They are areas that are permanently
inundated and under normal circumstances have rooted aquatic
vegetation, such as seagrasses in marine and estuarine systems and a
variety of vascular rooted plants in freshwater systems.
Waterbody: For purposes of the NWPs, a waterbody is a
jurisdictional water of the United States. If a jurisdictional wetland
is adjacent--meaning bordering, contiguous, or neighboring--to a
waterbody determined to be a water of the United States under 33 CFR
328.3(a)(1)-(6), that waterbody and its adjacent wetlands are
considered together as a single aquatic unit (see 33 CFR 328.4(c)(2)).
Examples of ``waterbodies'' include streams, rivers, lakes, ponds, and
wetlands.
[FR Doc. 2012-3687 Filed 2-17-12; 8:45 am]
BILLING CODE 3720-58-P