[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Rules and Regulations]
[Pages 5726-5733]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01655]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 330

RIN 0710-AA60


Nationwide Permit Program

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

ACTION: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers is amending its nationwide 
permit regulations so that district engineers can issue nationwide 
permit verification letters that expire on the same date a nationwide 
permit expires. This amendment will provide regulatory flexibility and 
efficiency, by allowing district engineers to issue nationwide permit 
verifications that are valid for the same period of time a nationwide 
permit is in effect. We are also amending these regulations to reflect 
the 45-day pre-construction notification review period that has been in 
effect for the nationwide permit ``pre-construction notification'' 
general condition since June 7, 2000.

DATES: Effective Date: February 27, 2013.

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

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by 
email at david.b.olson@usace.army.mil, or access the U.S. Army Corps of 
Engineers Regulatory Home Page at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.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 NWPs authorize activities 
that have minimal individual and cumulative adverse environmental 
effects. The NWPs are proposed, issued, modified, reissued, and revoked 
from time to time (generally five years), after an opportunity for 
public notice and comment.
    Some NWPs require project proponents to notify Corps district 
engineers prior to commencing NWP activities. These notifications are 
called pre-construction notifications (PCNs), and they provide district 
engineers with opportunities to confirm whether or not the proposed 
activities qualify for NWP authorization. For most NWPs, the district 
engineer has to respond within 45 days of receipt of a complete PCN. 
If, after reviewing the PCN, the district engineer determines that the 
proposed activity qualifies for NWP authorization, the district 
engineer issues an NWP verification letter to the project proponent. 
The NWP verification may contain special conditions to ensure that the 
NWP activity results in minimal individual and cumulative effects on 
the aquatic environment and the Corps public interest review factors.
    This rule has two effects:
    1. Most NWPs, through the application of the PCN general condition, 
have a 45-day review period for PCNs. The NWP regulations, however, 
dating back to 1991, still specify the default PCN review period as 30 
days. This final rule makes the NWP regulation consistent with the 
current NWP PCN general condition, which will reduce confusion and 
ensure consistent implementation.
    2. NWPs are reissued every 5 years, but NWP verification letters 
expire within two years. This rule will change the verification letter 
expiration date to be the same as the expiration date of the applicable 
NWP(s). This will ease the regulatory burden on permittees whose 
construction is not completed within two years by making it unnecessary 
to reverify the NWP authorization.

Background

    The last reissuance of the NWPs, including the PCN general 
condition (general condition 31), was published in the February 21, 
2012, issue of the Federal Register (77 FR 10184). The 2012 NWPs expire 
on March 18, 2017. The Corps regulations governing the NWP program are 
provided at 33 CFR part 330. The current NWP regulations were published 
in the Federal Register on November 22, 1991 (56 FR 59110).
    Section 330.1(e) of the 1991 rule provided district engineers with 
30 days to review notifications to determine whether proposed NWP 
activities result in minimal individual and cumulative adverse 
environmental effects and are in the public interest. Section 
330.6(a)(3)(ii) of the 1991 regulation stated that NWP verification 
letters can be valid for no more than two years. Since 1991, there have 
been substantial changes to the NWP program and other Federal programs 
that warrant amendments to these provisions.
    In the November 30, 2004, issue of the Federal Register (69 FR 
69563) we published a proposed rule to amend these provisions of the 
NWP regulations:
    1. In Sec.  330.1(e)(1) and Sec.  330.4(c)(6) and (d)(6), we 
proposed to change the PCN review period from 30 days to 45 days, to 
conform with the length of the PCN review period that has been in use 
for certain NWPs since 1996. On June 7, 2000, the 45-day PCN review 
period was applied to all NWPs requiring pre-construction notification 
(see 65 FR 12818). The 45-day PCN review period is found in the ``pre-
construction

[[Page 5727]]

notification'' general condition of the NWPs (currently general 
condition 31).
    2. In Sec.  330.6(a)(3)(ii) we proposed to change the length of 
time an NWP verification would be valid from two years to the 
expiration date of the NWP.

Comments and Revisions

    In response to the proposed rule, 15 comments were received. One 
commenter expressed general support for the proposed revisions and two 
commenters said that the proposed rule should be withdrawn.
    Two commenters said that the proposed rule violates the 
Administrative Procedure Act (APA) because the impacts of proposed rule 
are not fully explained. These commenters also said that changing the 
PCN review period from 30 days to 45 days is not consistent with agency 
practice, because the Corps did use APA rulemaking procedures to change 
the PCN review period to 45 days.
    We complied with APA requirements when we undertook this rulemaking 
to amend the NWP regulations. In the preamble to the November 30, 2004, 
notice of proposed rulemaking, we provided a concise explanation of the 
basis and purpose of the proposed amendments to specific sections of 33 
CFR part 330, and discussed their anticipated effects. As discussed in 
the proposed rule, the purpose of amending these sections of 33 CFR 
part 330 is to make the NWP regulation consistent with those provisions 
in the general condition addressing the timing of PCN processing that 
has been in effect for all NWPs since June 7, 2000, and to provide 
regulatory efficiency when issuing NWP verification letters.
    We also complied with APA requirements when we issued and reissued 
NWPs in 1996, 2000, 2002, 2007, and 2012, with 45-day PCN review 
periods in the ``pre-construction notification'' general condition. In 
the June, 17, 1996, proposal to reissue NWPs (61 FR 30786), we 
solicited comments on increasing the notification review period for NWP 
26 from 30 days to 45 days. In the July 21, 1999, proposal to issue 
five new NWPs and modify six existing NWPs to replace NWP 26 (64 FR 
39341), we requested comments on increasing the PCN review period to 45 
days for all NWPs. In the August 9, 2001 (66 FR 42070), September 26, 
2006 (71 FR 56296), and February 16, 2011 (76 FR 9174) proposals to 
issue and reissue NWPs, we solicited comments from interested parties 
on a proposed PCN review period of 45 days. Comments received in 
response to those proposals were fully considered, and the 45-day PCN 
review period was adopted in the final NWPs. In the preambles to the 
Federal Register notices announcing the final NWPs, we also provided 
responses to comments that were received. Therefore, in each of these 
cases, the APA procedures were used to promulgate the terms and 
conditions of the NWPs. Today's final rule concludes the rulemaking 
process for making the appropriate sections of 33 CFR part 330 
consistent with the NWPs currently in effect, and for changing the 
length of time an NWP verification could be in effect.
    Two commenters asserted that the proposed rule violates the 
Regulatory Flexibility Act (RFA), because its impacts are not fully 
explained, and the Corps did not discuss economic impacts or their 
potential significance. One commenter said that the 30-day completeness 
review and 45-day PCN review period adopted in the 2000 NWPs and 
subsequent NWPs must be in the final rule or else the impacts on small 
entities would be substantial. This commenter also stated that the 
final rule needs to include the provisions of the ``construction 
period'' general condition for the 2002 NWPs for impacts on small 
entities to be insubstantial.
    We have revised our RFA analysis to better explain the impacts of 
the final rule on small entities. The RFA analysis is provided below in 
the ``Administrative Requirements'' section of this preamble. We do not 
agree that it is necessary to incorporate the 30-day completeness 
review into Sec.  330.1(e)(1) for this rule to have an insubstantial 
impact on small entities. The 30-day completeness review is currently 
addressed through the terms of general condition 31 (pre-construction 
notification) of the 2012 NWPs, as published in the February 21, 2012, 
issue of the Federal Register.
    For reasons cited in the March 12, 2007, notice of the reissuance 
of the NWPs, the ``construction period'' general condition that was 
adopted in 2002 was not retained in the current NWPs (see 72 FR 11171). 
Removal of this general condition will not cause the NWPs to result in 
substantial impacts on small entities. Its removal was necessary to be 
consistent with Section 404(e)(2) of the Clean Water Act.

Forty-Five Day PCN Review Period

    Several commenters objected to increasing the PCN review period in 
33 CFR part 330 from 30 to 45 days. Several commenters stated that the 
longer PCN review period is contrary to the original intent of NWP 
program, which is to streamline the authorization process. Two 
commenters said that increasing the PCN review period would delay time 
sensitive activities, such as activities occurring in areas with short 
construction seasons. One commenter stated that changes to the ``pre-
construction notification'' general condition for the nationwide 
permits does not require conforming changes to part 330, since permit 
conditions can be more stringent than regulations. Another commenter 
said that it is unnecessary to change the NWP regulations, since the 
timing requirements in the ``pre-construction notification'' general 
condition can change whenever the NWPs are reissued. Two commenters 
stated that the proposed changes will have significant impacts on small 
entities when they are compared to the NWP regulations promulgated in 
1991.
    Changing the PCN review period in 33 CFR part 330 from 30 days to 
45 days will make the NWP regulation consistent with the ``pre-
construction notification'' general condition for the current NWPs. It 
should also be noted that the 2007 and 2012 NWPs were promulgated as 
rules under the Administrative Procedures Act. By establishing the same 
time frames in the NWPs and their governing regulations, this amendment 
will also help ensure consistent interpretation and implementation of 
the NWP terms and conditions and the NWP regulations.
    The longer processing times for NWP verification requests are not 
directly due to changes to the ``pre-construction notification'' 
general condition or the Corps' regulations governing the NWP program. 
Longer processing times are a result of the increased complexity of the 
regulatory environment that has occurred since 1991 as a result of 
judicial decisions and changes in laws and regulations. Since the 1991 
rule was issued, there have been substantial changes in Federal laws 
and regulations that have affected the implementation of the Corps 
Regulatory Program, as well as changes in agency practices and policies 
such as compensatory mitigation requirements and jurisdiction. These 
changes have caused increased processing times for NWP PCNs, as well as 
applications for other types of DA permits.
    For example, the promulgation of regulations in 1997 and 2002 to 
implement the essential fish habitat provisions of the Magnuson-Stevens 
Fishery Conservation and Management Act has resulted in an additional 
consultation requirement for many activities authorized by Corps 
permits. As another example, the Advisory Counsel on Historic 
Preservation issued revised regulations in 2000 and 2004

[[Page 5728]]

that govern Section 106 of the National Historic Preservation Act, 
which has resulted in changes in processing procedures for DA permits 
under interim guidance issued by the Corps on April 25, 2005, and 
January 31, 2007.
    Compensatory mitigation is often required to ensure that NWP 
activities result in minimal individual and cumulative adverse effects 
on the aquatic environment. Compensatory mitigation proposals can be 
complex documents that require technical review to determine whether 
the proposed compensatory mitigation projects are feasible and will 
effectively offset authorized losses of aquatic resources. Since 1991, 
there have also been changes to the Regulatory Program's compensatory 
mitigation policies, such as the issuance of Regulatory Guidance Letter 
02-02 on December 24, 2002. Although the Corps regulations for 
compensatory mitigation for losses of aquatic resources at 33 CFR part 
332 were issued (see 73 FR 19594) after this proposed rule was 
published, the requirements for implementing that rule still support 
these changes to the NWP regulations.
    Prior to issuing a verification letter for an NWP activity, the 
district engineer must review the mitigation statement or conceptual or 
detailed compensatory mitigation plan within 45 days of receipt of a 
complete PCN (see paragraph (b)(5) of NWP general condition 31 (77 FR 
10287)). During this time period, the district engineer must also 
determine whether the proposed NWP activity, in conjunction with any 
proposed compensatory mitigation, will result in no more than minimal 
individual and cumulative adverse effects on the aquatic environment 
and other public interest factors. The 45-day review period provides 
district engineers with time to effectively review compensatory 
mitigation statements or proposals submitted with PCNs, or to exercise 
discretionary authority if the net adverse effects on the aquatic 
environment are determined to be more than minimal.
    Despite these and other changes in the regulatory environment, NWP 
verification processing times are still substantially less than 
processing times for individual permits (see below). Amending the NWP 
regulations so that the PCN review period is the same as the PCN review 
period in the ``pre-construction notification'' general condition will 
not significantly impact small entities, since the 45-day PCN review 
period has been in effect for all the NWPs since 2000.
    Two commenters said that the proposed changes will significantly 
affect the regulated public because of the increase in NWP processing 
times from 16 days in 1998 to 27 days in 2003. One commenter said that 
the Corps should discuss alternatives to reduce NWP processing times or 
reduce the need for changing the regulation.
    During the period of 1998 to 2003, the processing times for all 
types of DA permits have increased, with NWPs showing the smallest 
increase. In fiscal year 2010, the average processing time for a 
standard permit application was 221 days and for NWP pre-construction 
notifications the average processing time was 32 days. We do not 
believe that this final rule will change the average processing times 
for NWP verification requests, since it reflects long-standing NWP PCN 
processing practices as provided in the ``pre-construction 
notification'' general condition. When one considers the changes in 
processing times that have occurred for the various types of DA 
permits, the NWP program still fulfills its intent of reducing delays 
and paperwork to authorize activities that have minimal adverse effects 
on the aquatic environment. Developing alternatives to the NWP program 
to reduce processing times, while complying with the requirements of 
applicable laws and regulations, such as the Endangered Species Act and 
the National Historic Preservation Act, is not feasible.
    Two commenters stated that the proposed amendments are unnecessary, 
since the average review period for NWP verifications in 2003 was 27 
days. One commenter disagreed that the average processing time for NWP 
verification requests was 27 days in 2003, and said that the processing 
times are usually longer than 27 days. Two commenters remarked that 
increasing the PCN review period from 30 days to 45 days should not 
alter processing times for NWP PCNs. Several commenters stated that the 
proposed amendment would increase processing times.
    It is important to understand that the 27-day average review period 
cited in the proposed rule is the mean processing time for NWP PCNs and 
other NWP verification requests. Processing times may be longer for 
specific proposed activities, especially for NWP activities where 
consultation with other agencies is required to comply with other 
Federal laws, such as Section 7 of the Endangered Species Act and 
Section 106 of the National Historic Preservation Act. In those 
situations, the NWP authorization may be suspended until the required 
consultation is completed, resulting in longer processing times.
    Two commenters said that if the 45-day PCN review period is adopted 
in the final rule, the Corps should implement expedited NWP processing 
procedures to offset the delays that they believe will result from that 
change.
    As discussed above, we do not believe that this amendment to the 
NWP regulations will alter NWP PCN processing times. The NWPs still 
provide a streamlined form of authorization for certain activities that 
result in minimal individual and cumulative adverse effects on the 
aquatic environment.
    Two commenters said that increasing the PCN review period to 45 
days will change implementation of paragraph (a) of the ``pre-
construction notification'' general condition for the NWPs. Paragraph 
(a) requires the district engineer to determine if a PCN is complete 
within 30 days of the date of receipt of the PCN, and if additional 
information is necessary to make the PCN complete, to request the 
additional information within that 30-day period. These commenters 
stated that changing the PCN review period in section 330.1(e)(1) would 
remove the 15 days between the end of the 30-day completeness review 
and the end of the 45-day PCN review. One commenter said that the 
proposed amendment would result in a 45-day completeness review for NWP 
PCNs.
    This amendment does not affect the timing provisions of the ``pre-
construction notification'' general condition, including the 30-day 
period for making completeness determinations for PCNs. In accordance 
with the current ``pre-construction notification'' general condition 
(general condition 31 of the 2012 NWPs), district engineers are still 
required to make their completeness determinations within 30 days. The 
45-day clock for making a decision on a PCN still begins on the date a 
complete PCN is received by the district.
    One commenter remarked that the proposed rule should have discussed 
potential effects of the amendment on program efficiency, specifically 
the time necessary to determine that a PCN is complete. This commenter 
noted that the 2001 Energy and Water Development Appropriations Act 
requires the Corps to track and report this information.
    This amendment will have no effect on program efficiency since 45-
day PCN review period has been part of the NWP program since 1996. This 
rule does not affect the reporting required under the

[[Page 5729]]

2001 Energy and Water Development Appropriations Act.
    Several commenters recommended that the Corps amend the NWP 
regulations to include the 30-day completeness review for PCNs and 
allow the district engineer to make only one request for additional 
information to make a PCN complete.
    The 30-day completeness review and the general rule regarding 
requests for additional information are adequately addressed through 
general condition 31, ``pre-construction notification,'' of the 2012 
NWPs. The 2012 NWPs were promulgated as a rule, and we do not believe 
it is necessary to incorporate these provisions into 33 CFR part 330.
    One commenter objected to the proposed amendment, and stated that 
the Corps should pursue available means to streamline consultations 
required by other Federal statutes, such as the Essential Fish Habitat 
(EFH) provisions of the Magnuson-Stevens Fishery Management and 
Conservation Act cited as an example in the preamble to the proposed 
rule. This commenter said that the EFH regulations provide mechanisms 
to reduce administrative burdens on Federal agencies through 
programmatic consultations and general concurrences, to streamline the 
consultation process for classes of similar projects. These mechanisms 
could be used to conduct EFH consultations within the PCN review period 
stated in Sec.  330.1(e)(1).
    We understand that the EFH regulations provide mechanisms to 
streamline the consultation process and comply with the requirements of 
the EFH provisions of the Magnuson-Stevens Fishery Management and 
Conservation Act. However, the use of those streamlining mechanisms is 
more appropriately addressed at the regional level, between Corps 
district offices and NMFS regional offices. In addition, those 
streamlining mechanisms may not be available for all NWP activities 
conducted across the country, so we believe that a regulation change is 
an appropriate course of action for accommodating the consultation 
requirements of the EFH provisions, as well as other revised 
consultation requirements, such as those promulgated for the purposes 
of Section 106 of the National Historic Preservation Act. Amending the 
NWP regulations also provides greater clarity and predictability for 
the public, by reducing the number of instances where it is necessary 
to revoke or suspend NWP authorizations in cases where consultation 
with other agencies is necessary to comply with applicable laws.
    In the preamble to the November 30, 2004, proposed rule, we 
discussed the EFH regulations as an example of additional consultation 
and coordination requirements that have been imposed since the NWP 
regulations were last amended in 1991. The EFH regulations are simply 
one example. Another example is Section 106 of the National Historic 
Preservation Act, for which new implementing regulations were 
promulgated in 2000 and further revised in 2004. Under the Corps 
Regulatory Program's April 25, 2005, and January 31, 2007, interim 
guidance, there is a 30-day review period for most determinations 
concerning effects to historic properties. In light of these examples 
and other requirements, we believe that amending the NWP regulations to 
be consistent with the 45-day pre-construction notification review 
period in the current NWP general condition 27 will help ensure 
compliance with all applicable statutes and regulations, while 
providing timely responses to NWP verification requests.
    One commenter asked how the proposed rule would affect the process 
for incorporating the conditions of an individual Section 401 water 
quality certification that is issued after the district engineer 
completes the review of a PCN within the 45 day period. This commenter 
also requested that the final rule provide clarification on the process 
for incorporating the conditions of an individual water quality 
certification into an NWP authorization.
    The amendment to section 330.4(c)(6) does not affect the 
provisional verification process for NWP activities that require 
individual water quality certification, or the process for 
incorporating water quality certification conditions into an NWP 
authorization. It only changes the PCN review period to 45 days to be 
consistent with the 45 day review period in the NWP ``pre-construction 
notification'' general condition. Regulatory Guidance Letter 92-04 
provides guidance on incorporating water quality certification 
conditions into NWP authorizations. That guidance discusses, from the 
Corps perspective, what constitutes unacceptable conditions in water 
quality certifications and Coastal Zone Management Act consistency 
concurrences. Regulatory Guidance Letter 92-04 is available on the 
Internet at: http://www.usace.army.mil/Portals/2/docs/civilworks/RGLS/rgl92-04.pdf.

Expiration Dates for Verification Letters

    In the November 30, 2004, proposed rule we proposed to amend Sec.  
330.6(a)(3)(ii) to allow district engineers to issue NWP verifications 
that are valid until the date the NWP expires, instead of requiring 
verifications to expire in two years or less. An NWP verification 
provides confirmation that a particular activity is authorized by NWP. 
This amendment will help promote administrative efficiency by 
eliminating the two year limit for NWP verifications, so that it will 
not be necessary for district engineers to reverify an NWP 
authorization when the permittee has not completed the authorized work 
within two years of the issuance of the NWP verification letter.
    Many commenters expressed general support for proposed amendment of 
Sec.  330.6(a)(3)(ii). One commenter noted that under the proposed 
rule, district engineers have the discretion to issue NWP verifications 
for any specified time period, but generally the verification would 
have the same expiration date as the NWP.
    We are adopting the proposed amendment in this final rule. District 
engineers may impose expiration dates on NWP verifications that occur 
earlier than the expiration date of the applicable NWPs, but they 
should document the reasons for shorter expiration dates. Shorter 
verification periods may be appropriate in cases where the authorized 
activity needs to be done by a specific date because of concerns for 
the aquatic environment or other public interest factors.
    One commenter recommended that the final rule clarify that an NWP 
verification cannot extend past the expiration date of the NWP. This 
commenter said that allowing an NWP verification to be valid beyond the 
expiration date of an NWP conflicts with 33 CFR 330.6(b), which states 
that an NWP automatically expires if it is not modified or reissued 
within five years of its effective date. Two commenters stated that the 
proposed rule limits NWP verification periods to the date the NWP 
expires, and that district engineers could not issue verifications that 
are valid for a period of time after the NWP expires. Those commenters 
suggested that the Corps clarify the amount of discretion afforded to 
district engineers when establishing expiration dates for case-specific 
NWP verifications. Three commenters asked whether district engineers 
could issue NWP verifications that are valid after the expiration date 
of the NWP.
    As discussed above, the final rule contains flexibility for 
district engineers to establish expiration dates for NWP verifications, 
but in most cases the expiration date for an NWP verification letter 
will be the same as the expiration

[[Page 5730]]

date for the applicable NWP(s). The first sentence of Sec.  
330.6(a)(3)(ii) states that an NWP verification should be valid 
``generally until the expiration date of the NWP.'' The amendment of 
Sec.  330.6(a)(3)(ii) does not affect Sec.  330.6(b). Section 330.6(b) 
of the NWP regulations provides up to 12 months to complete an NWP 
activity after the NWP expires, as long as that activity has commenced 
or is under contract to commence by the date the NWP expires. If an NWP 
verification letter is to be issued near the expiration date of the 
applicable NWP(s), the district engineer may inform the permittee of 
the availability of Sec.  330.6(b) to provide an additional 12 months 
to complete the authorized activity.
    One commenter said that the proposed amendment conflicts with 33 
CFR 330.6(b), which provides one year to complete the work authorized 
by an NWP, as long as the activity is under construction, or is under 
contract to commence construction, at the time the NWP expires, unless 
discretionary authority has been exercised. This commenter stated that 
although Section 404(e) of the Clean Water Act limits NWPs to five year 
authorization periods, it does not limit the amount of time to complete 
the work once it is authorized by NWP.
    This amendment does not conflict with 33 CFR 330.6(b). The 
additional year to complete the authorized work in reliance on the 
previous NWP allows permittees time to complete activities that have 
begun construction, or are under contract to begin construction. All 
Corps permits have specific construction periods, and if the project 
proponent cannot complete construction within those time periods, he or 
she must either obtain a time extension or a new individual permit or 
general permit authorization. Since the NWPs cannot be issued for a 
period of more than five years, the Corps cannot grant time extensions 
for those NWP activities beyond the 12 months provided in Sec.  
330.6(b). If the previous NWP authorization expires and Sec.  330.6(b) 
does not apply, the Corps will evaluate the proposed activity and 
determine if it qualifies for authorization under any of the new, 
modified, or reissued NWPs. If the proposed activity does not qualify 
for any of the new, modified, or reissued NWPs, then the project 
proponent needs to obtain an individual permit or a regional general 
permit authorization.
    Several commenters said that the final rule should include a 
``reasonable construction period'' to allow a permittee sufficient time 
to complete an NWP activity without obtaining a new NWP verification. 
These commenters referred to the ``construction period'' general 
condition of the 2002 NWPs, which were published in the January 15, 
2002, issue of the Federal Register (67 FR 2020). One commenter 
expressed support for the proposed amendment to this section, as long 
as the ``construction period'' general condition is not changed. Two 
commenters asserted that clarification is needed in the final rule, so 
that there is no conflict with ``construction period'' general 
condition. Two commenters stated that the proposed rule would make the 
``construction period'' general condition invalid. One commenter 
expressed concern that the proposed amendment would reduce the amount 
of time an NWP verification would be valid, especially in cases where 
the expiration date of the NWP is less than two years from the date of 
the verification letter. This commenter said that a permittee needs a 
reasonable amount of time to complete the authorized work, and 
suggested using the ``construction period'' general condition to 
address this concern.
    As discussed in the March 12, 2007, Federal Register notice (72 FR 
11171-11172), we have removed the ``construction period'' general 
condition from the NWPs. That general condition was removed because it 
is contrary to Section 404(e)(2) of the Clean Water Act, which imposes 
a five year limit on general permits. In light of the statutory time 
limit placed on general permits, NWP activities with long construction 
periods can be addressed in two ways.
    Once an NWP expires, the permittee can utilize 33 CFR 330.6(b) to 
complete the work. That regulation allows permittees to continue work 
for 12 months in reliance on an NWP authorization, if that NWP has 
expired or been modified or revoked, and the activity is under 
construction or under contract to commence construction. If that NWP 
activity cannot be completed within that 12 month time period, then the 
permittee would have to obtain another DA authorization, which may be 
provided by a reissued or new NWP. We believe that 33 CFR 330.6(b) is 
sufficient to address concerns with projects that may not be completed 
before an NWP expires. For NWP activities that require substantial 
amounts of time to complete, project proponents should consider whether 
it would be more advantageous to pursue an individual permit 
authorization. Individual permits can have greater flexibility in 
construction periods. An individual permit authorization can also be 
extended, as long as the district engineer determines that the time 
extension would be consistent with applicable regulations and would not 
be contrary to the public interest.
    This change to the NWP regulations does not reduce the amount of 
time an NWP verification would be valid. In cases where a reissued NWP 
can be used to authorize the previously verified NWP activity, the 
Corps could issue a new verification letter that would be valid until 
that NWP expires. For those activities that do not qualify for the 
reissued NWP, the grandfather provision at 33 CFR 330.6(b) could 
continue to provide the NWP authorization for up to an additional 12 
months for eligible activities, unless the district engineer exercises 
discretionary authority to modify, suspend, or revoke the NWP 
authorization. Having the NWP verification letter expire at the same 
time as the NWP itself expires will promote compliance and help protect 
the aquatic environment by requiring district engineers to consider 
whether the proposed activity still qualifies for NWP authorization 
under the terms and conditions of a reissued or new NWP. The reissued 
or new NWP may have changed substantially during the NWP reissuance 
process that the Corps conducts every five years, to protect the 
aquatic environment or other public interest review factors.
    One commenter suggested linking the expiration date of the NWP 
verification to the expiration date(s) of any other required Federal 
authorizations to reduce duplication with other Federal programs. This 
commenter also said that re-verification of NWP activities should not 
be required if they are long-term activities that are subject to 
comprehensive regulation through another Federal environmental statute.
    We do not believe it would be appropriate to link the expiration 
date of NWP verifications with other Federal authorizations. Other 
Federal environmental statutes often do not have exactly the same 
requirements as the statutes administered by the Corps. Therefore, 
there is often a need for the Corps to do an independent review or 
determination to ensure compliance with the laws that apply to the 
Corps regulatory program. Actions or outcomes required by other Federal 
environmental statutes often differ from Corps requirements. In 
addition, Section 404(e) of the Clean Water Act limits the issuance of 
general permits, including NWPs, to a maximum of five years.
    One commenter requested clarification on how the proposed amendment 
of Sec.  330.6(a)(3)(ii) would affect situations where the NWP is 
revoked, modified, or expired during

[[Page 5731]]

the time period specified in the verification letter.
    If an NWP is revoked, suspended, or modified by the Chief of 
Engineers before the NWP verification letter expires, 33 CFR 330.6(b) 
applies. In other words, the project proponent would have 12 months to 
complete the authorized work, as long as he or she has commenced 
construction, or is under contract to commence construction, before the 
NWP was revoked, suspended, or modified and the district engineer has 
not exercised discretionary authority to modify, suspend, or revoke the 
NWP authorization.

Administrative Requirements

Plain Language

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

Paperwork Reduction Act

    This action will not impose any new information collection burden 
under the provisions of the Paperwork Production Act (44 U.S.C. 3501 et 
seq.). For NWPs that require PCNs, the modification changes the 30-day 
review period to a 45-day review period. In addition, the final rule 
changes the length of time an NWP verification letter could be valid. 
Since the final rule does not involve any additional collection of 
information from the public, this action is not subject to the 
Paperwork Reduction Act.

Executive Order 12866 and Executive Order 13563, ``Improving Regulation 
and Regulatory Review''

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

Executive Order 13132

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

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

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, a small entity is defined as: (1) A small business based on 
Small Business Administration size standards; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district, or special district with a population of less than 50,000; or 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    Amending the NWP regulations to allow district engineers to issue 
NWP verification letters with expiration dates that are the same as the 
expiration date of the NWPs will benefit small entities who use NWPs. 
Implementation of this change will provide clarity, since the 
expiration date of the verification letter will usually match the 
expiration date of the NWP being used to authorize the activity. It 
will also eliminate uncertainty regarding whether re-verification is 
necessary in cases where the two-year verification letter expired 
before the date the NWP itself expired. The revised regulation will 
provide small entities with assurance that the NWP authorization is 
valid until the NWP expires.
    Making the PCN review period in the NWP regulations consistent with 
the NWP ``pre-construction notification'' general condition will have 
no effect on small entities, since users of the NWPs must comply with 
all applicable terms and conditions of the NWPs, including the ``pre-
construction notification'' general condition, which establishes time 
frames for PCN reviews.
    After considering the economic impacts of this rulemaking on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. The ability for district 
engineers to issue NWP verification letters that have the same 
expiration date as the NWPs themselves will benefit small entities by 
providing clarity and reducing paperwork burdens. Amending the NWP 
regulation to have the same PCN review period as the NWP ``pre-
construction notification'' general condition will also provide clarity 
and regulatory certainty. This final rule is consistent with current 
agency practice, does not impose new substantive requirements, and 
therefore would not

[[Page 5732]]

have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final 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 final rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. This rule is consistent with current agency 
practice, does not impose new substantive requirements and therefore 
does not contain a Federal mandate that may result in expenditures of 
$100 million or more for State, local, and Tribal governments, in the 
aggregate, or the private sector in any one year. Therefore, the final 
rule is not subject to the requirements of Sections 202 and 205 of the 
UMRA. For the same reasons, we have determined that this rule contains 
no regulatory requirements that might significantly affect small 
governments. Therefore, it is not subject to the requirements of 
Section 203 of UMRA.

Executive Order 13045

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

Executive Order 13175

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

Environmental Documentation

    The Corps prepares appropriate environmental documentation, 
including Environmental Impact Statements when required, for all permit 
decisions. Therefore, environmental documentation under the National 
Environmental Policy Act is not required for this rule. Appropriate 
environmental documentation, which includes an environmental 
assessment, is prepared for each NWP when it is issued, reissued, or 
modified.

Congressional Review Act

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

Executive Order 12898

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

Executive Order 13211

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May

[[Page 5733]]

22, 2001) because it is not likely to have a significant adverse effect 
on the supply, distribution, or use of energy. The final rule updates 
regulations for implementing the Nationwide Permit Program. The rule is 
consistent with current agency practice, does not impose new 
substantive requirements and therefore will not have a significant 
adverse effect on the supply, distribution, or use of energy.

List of Subjects in 33 CFR Part 330

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

    Dated: January 22, 2013.

    Approved by:

Jo-Ellen Darcy,
Assistant Secretary of the Army (Civil Works).

    For the reasons stated in the preamble, the Corps is amending 33 
CFR part 330 as follows:

PART 330--NATIONWIDE PERMIT PROGRAM

0
1. The authority citation for part 330 continues to read as follows:

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

0
2. Amend Sec.  330.1 by revising paragraph (e)(1) to read as follows:


Sec.  330.1  Purpose and policy.

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

0
3. Amend Sec.  330.4 by revising paragraphs (c)(6) and (d)(6) to read 
as follows:


Sec.  330.4  Conditions, limitations, and restrictions.

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

0
4. Amend Sec.  330.6 by revising paragraph (a)(3)(ii) to read as 
follows:


Sec.  330.6  Authorization by nationwide permit.

    (a) * * *
    (3) * * *
    (ii) The DE's response will state that the verification is valid 
for a specific period of time (generally until the expiration date of 
the NWP) unless the NWP authorization is modified, suspended, or 
revoked. The response should also include a statement that the 
verification will remain valid for the specified period of time, if 
during that time period, the NWP authorization is reissued without 
modification or the activity complies with any subsequent modification 
of the NWP authorization. Furthermore, the response should include a 
statement that the provisions of Sec.  330.6(b) will apply, if during 
that period of time, the NWP authorization expires, or is suspended or 
revoked, or is modified, such that the activity would no longer comply 
with the terms and conditions of an NWP. Finally, the response should 
include any known expiration date that would occur during the specified 
period of time. A period of time less than the amount of time remaining 
until the expiration date of the NWP may be used if deemed appropriate.
* * * * *
[FR Doc. 2013-01655 Filed 1-25-13; 8:45 am]
BILLING CODE 3720-58-P