[Federal Register Volume 76, Number 32 (Wednesday, February 16, 2011)]
[Notices]
[Pages 9174-9207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3371]
[[Page 9173]]
Vol. 76
Wednesday,
No. 32
February 16, 2011
Part III
Department of Defense
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Department of the Army, Corps of Engineers
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Proposal To Reissue and Modify Nationwide Permits; Notice
Federal Register / Vol. 76 , No. 32 / Wednesday, February 16, 2011 /
Notices
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
ZRIN 0710-ZA05
Proposal To Reissue and Modify Nationwide Permits
AGENCY: Army Corps of Engineers, DoD.
ACTION: Notice.
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SUMMARY: The U.S. Army Corps of Engineers (Corps) is soliciting
comments for the reissuance of the existing nationwide permits (NWPs),
general conditions, and definitions, with some modifications. The Corps
is also proposing to issue two new NWPs and two new general conditions.
The Corps is requesting comment on all aspects of these proposed
nationwide permits. More specifically, the Corps is requesting comments
on options for NWP 21, which authorizes discharges of dredged or fill
material into waters of the United States associated with surface coal
mining activities, such as reissuing NWP 21 with modifications or not
reissuing NWP 21. The Corps is also seeking comments on whether to
reissue NWP 48 with modifications to authorize new commercial shellfish
aquaculture activities or to issue a separate NWP to authorize only new
commercial shellfish aquaculture activities. The reissuance process
starts with today's publication of the proposed NWPs in the Federal
Register for a 60-day comment period. The purpose of this Federal
Register notice is to solicit comments on the proposed new and modified
NWPs, as well as the NWP general conditions and definitions. Shortly
after the publication of this Federal Register notice, each Corps
district will publish a public notice to solicit comments on their
proposed regional conditions for the new and modified NWPs. The comment
period for these district public notices will be 45 days.
DATES: Submit comments on or before April 18, 2011.
ADDRESSES: You may submit comments, identified by docket number COE-
2010-0035 and/or ZRIN 0710-ZA05, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
E-mail: [email protected]. Include the docket number, COE-
2010-0035, and/or the ZRIN number, 0710-ZA05, in the subject line of
the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street,
NW., Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: Direct your comments to docket number COE-2010-0035
and/or ZRIN 0710-ZA05. All comments received will be included in the
public docket without change and may be made available on-line at
http://www.regulations.gov, including any personal information
provided, unless the commenter indicates that the comment includes
information claimed to be Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute. Do not
submit information that you consider to be CBI, or otherwise protected,
through regulations.gov or e-mail. The regulations.gov Web site is an
anonymous access system, which means we will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an e-mail directly to the Corps without going through
regulations.gov, your e-mail address will be automatically captured and
included as part of the comment that is placed in the public docket and
made available on the Internet. If you submit an electronic comment, we
recommend that you include your name and other contact information in
the body of your comment and with any disk or CD-ROM you submit. If we
cannot read your comment because of technical difficulties and cannot
contact you for clarification, we may not be able to consider your
comment. Electronic comments should avoid the use of any special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: For access to the docket to read background documents or
comments received, go to regulations.gov. All documents in the docket
are listed. Although listed in the index, some information is not
publicly available, such as CBI or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form.
FOR FURTHER INFORMATION CONTACT: Mr. Dave Casey at 907-283-3519 or 202-
761-5903 or Mr. David Olson at 202-761-4922 or access the U.S. Army
Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx.
SUPPLEMENTARY INFORMATION:
Background
The current nationwide permits (NWPs), which were published in the
March 12, 2007, issue of the Federal Register (72 FR 11092) expire on
March 18, 2012. With this Federal Register notice, we are beginning the
process for reissuing the NWPs so that the reissued NWPs will be in
effect as the current NWPs expire.
Section 404(e) of the Clean Water Act provides the statutory
authority for the Secretary of the Army, after notice and opportunity
for public hearing, to issue general permits on a nationwide basis for
any category of activities involving discharges of dredged or fill
material into waters of the United States. Activities authorized by
NWPs must be similar in nature, cause only minimal adverse
environmental effects when performed separately, and cause only minimal
cumulative adverse effect on the aquatic environment. Nationwide
permits can also be issued to authorize activities pursuant to Section
10 of the Rivers and Harbors Act of 1899. The NWP program is designed
to provide timely authorizations for the regulated public while
protecting the Nation's aquatic resources.
Today's proposal to reissue 48 of the 49 existing NWPs with some
modifications and to issue two new NWPs reflects the Corps commitment
to its environmental protection mission and to aquatic resource
protection. For the reasons provided below, we are proposing to let one
NWP expire and not reissue it: NWP 47--Pipeline Safety Program
Designated Time Sensitive Inspections and Repairs. We are proposing to
revise the text of some of the NWPs, general conditions, and
definitions so that they are clearer and can be more easily understood
by the regulated public, government personnel, and interested parties,
while retaining terms and conditions that protect the aquatic
environment. Making the text of the NWPs clearer and easier to
understand will also facilitate compliance with these permits, which
will benefit the aquatic environment. The NWP program allows the Corps
to authorize activities with minimal adverse environmental impacts in a
timely manner and protect the aquatic environment. The NWP program also
allows the Corps to focus its limited resources on more extensive
evaluation of projects that have the potential for causing
environmentally damaging adverse effects.
Through the NWPs, impacts to the aquatic environment may also
receive additional protection through regional conditions, case-
specific special
[[Page 9175]]
conditions, and case-specific discretionary authority to require
individual permits. Nationwide permits and other general permits help
protect the aquatic environment because permit applicants often reduce
project impacts to meet the restrictive requirements of general permits
and receive authorization more quickly than they would through the
individual permit process.
Thirty of the NWPs proposed for reissuance require pre-construction
notification (PCN) for certain activities. Twenty of those NWPs require
PCNs for all activities. Each of the two proposed new NWPs require
PCNs. Pre-construction notification requirements give the Corps the
opportunity to evaluate certain proposed NWP activities on a case-by-
case basis to ensure that they will have no more than minimal adverse
effects on the aquatic environment, individually and cumulatively. This
case-by-case review often results in adding case-specific conditions to
the NWP authorization to ensure that impacts to the aquatic environment
are minimal. Review of a PCN may also result in the Corps asserting
discretionary authority to require an individual permit if the district
engineer determines, based on the information provided in the PCN, that
adverse impacts will be more than minimal, either individually or
cumulatively, or there are sufficient concerns for any of the Corps
public interest review factors.
Regional conditions may be imposed by division engineers to take
into account regional differences in aquatic resource functions and
services across the country and to restrict or prohibit the use of NWPs
to protect those resources. Through regional conditions, a division
engineer can modify an NWP to require submission of PCNs for certain
activities. Regional conditions may also restrict or prohibit the use
of an NWP in certain waters or geographic areas, if the use of that NWP
in those waters or areas might result in more than minimal individual
or cumulative adverse effects to the aquatic environment.
District engineers may impose special conditions on NWP
authorizations to ensure that the NWP authorizes only activities that
result in minimal individual and cumulative effects on the aquatic
environment and other public interest review factors. In addition,
special conditions will often include compensatory mitigation
requirements to reduce the project impacts to the minimal level.
Compensatory mitigation may include the restoration, establishment,
enhancement, and/or preservation of aquatic habitats, as well as the
establishment and maintenance of riparian areas next to streams and
other open waters. Compensatory mitigation can be provided through
permittee-responsible mitigation, mitigation banks, or in-lieu fee
programs.
Process for Reissuing the NWPs
The NWPs reissued on March 12, 2007, went into effect on March 19,
2007, and expire on March 18, 2012. The reissuance process starts with
today's publication of the proposed NWPs in the Federal Register for a
60-day comment period. Requests for a public hearing must be submitted
in writing to the address in the ADDRESSES section of this notice.
These requests must state the reason(s) for holding a public hearing.
If we determine that a public hearing or hearings would assist in
making a decision on the issuance of the proposed new NWPs, reissuance
of existing NWPs, or the NWP general conditions or definitions, a 30-
day advance notice will be published in the Federal Register to advise
interested parties of the date(s) and location(s) for the public
hearing(s). Any announcement of public hearings would also be posted as
a supporting material in the docket at http://www.regulations.gov as
well as the Corps regulatory home page at http://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx.
Shortly after the publication of this Federal Register notice,
Corps district offices will issue public notices to solicit comments on
proposed regional conditions. In their district public notices,
district engineers may also propose to suspend or revoke some or all of
these NWPs if they have issued, or are proposing to issue, regional
general permits, programmatic general permits, or section 404 letters
of permission for use in lieu of NWPs. The comment period for these
district public notices will be 45 days.
After the comment period has ended, we will review the comments
received in response to this Federal Register notice. Then we will
draft the final NWPs, and those final draft NWPs will be subjected to
another review by interested Federal agencies. The final issued NWPs
will be published in the Federal Register by December 2011. The final
NWPs will go into effect 90 days after their publication. In the past,
the schedule normally allowed state governments, tribal governments,
and EPA a 60-day period for Clean Water Act Section 401 water quality
certifications (WQCs) as well as Coastal Zone Management Act (CZMA)
consistency determinations by states. The change to 90 days is made in
order to meet the requirements of the Department of Commerce that
require Federal agencies to provide at least 90 days for state
governments to make their CZMA consistency determinations (see 15 CFR
930.36(b)). Within this 90-day period, division engineers will also
develop regional conditions and supplemental decision documents.
Supplemental decision documents address the environmental
considerations related to the use of NWPs in a Corps district. The
supplemental decision documents will certify that the NWPs, with any
regional conditions or geographic suspensions or revocations, will only
authorize activities within that Corps district that result in minimal
individual and cumulative adverse effects on the aquatic environment.
The regional conditioning and WQC/CZMA processes are discussed below.
Compliance With Section 404(e) of the Clean Water Act
The proposed NWPs are issued in accordance with Section 404(e) of
the Clean Water Act. These NWPs authorize categories of activities that
are similar in nature. The ``similar in nature'' requirement does not
mean that activities authorized by an NWP must be identical to each
other. We believe that the ``categories of activities that are similar
in nature'' requirement of section 404(e) is to be interpreted broadly,
for practical implementation of this general permit program. Nationwide
permits, as well as other general permits, are intended to reduce
administrative burdens on the Corps and the regulated public, by
efficiently authorizing activities that have minimal adverse
environmental effects.
As for the minimal adverse effects provision of section 404(e), the
various terms and conditions of these NWPs, including the provisions in
the NWP regulations at 33 CFR 330.1(d) and 33 CFR 330.4(e) that allow
district engineers to exercise discretionary authority, ensure
compliance with this requirement. A decision document will be prepared
for each NWP to address the requirements of the National Environmental
Policy Act and generally discuss the anticipated impacts the NWP will
have on the Corps public interest review factors. For those NWPs that
may authorize discharges of dredged or fill material into waters of the
United States, a 404(b)(1) Guidelines analysis will be provided in the
decision document. The 404(b)(1) Guidelines analysis will be conducted
in accordance with 40 CFR 230.7. The draft decision documents for the
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proposed NWPs are available on the internet at: http://www.regulations.gov (docket ID number COE-2010-0035). We are soliciting
comments on these draft decision documents, and any comments received
will be considered when preparing the final decision documents for the
NWPs.
National Environmental Policy Act Compliance
We have prepared a draft decision document for each proposed NWP.
Each decision document contains an environmental assessment (EA). If
the proposed NWP authorizes discharges of dredged or fill material into
waters of the United States, the decision document will also include a
404(b)(1) Guidelines analysis conducted in accordance with 40 CFR
230.7. These decision documents will consider the environmental effects
of each NWP from a national perspective. Division engineers will issue
supplemental decision documents to evaluate regional effects on the
aquatic environment and other public interest review factors. Those
supplemental decision documents will discuss regional conditions
imposed by division engineers to protect the aquatic environment and
ensure that any adverse effects resulting from NWP activities will be
no more than minimal.
The assessment of cumulative effects occurs at two levels: national
and regional (district). However, modifications at the district level
are made by the appropriate division engineer. There are eight Corps
division offices in the United States, with 38 district offices. A
division office may oversee as many as seven districts (Lakes and
Rivers Division) or as few as two district offices (Pacific Ocean
Division).
At the national level, the decision documents issued by Corps
Headquarters include cumulative effects assessments required by NEPA
and, if the NWP authorizes discharges of dredged or fill material into
waters of the United States, the 404(b)(1) Guidelines. The 404(b)(1)
Guidelines at 40 CFR 230.7(b) require an evaluation of the potential
individual and cumulative impacts of the category of activities
authorized under the NWP.
The supplemental decision documents issued by division engineers
include cumulative effects assessments at the regional (district)
level, for each district within the division. For those NWPs that
authorize section 404 activities, the supplemental decision documents
will also discuss local concerns relating to the Section 404(b)(1)
Guidelines, if the national decision documents do not adequately
address those issues. If the NWP is not suspended or revoked in a
district, the supplemental decision document includes a certification
that the use of the NWP in that district, with any applicable regional
conditions (i.e., applicable in a specific district), will result in
minimal cumulative adverse environmental effects. The supplemental
decision documents are prepared by Corps districts, but must be
approved and formally issued by the appropriate division engineer,
since the NWP regulations at 33 CFR 330.5(c) state that the division
engineer has the authority to modify, suspend, or revoke NWP
authorizations for any specific geographic area within his division.
Regional conditions are considered NWP modifications. Therefore, when
the process is completed, each district will have approved supplemental
decision documents for each NWP, and those supplemental decision
documents will assess cumulative effects within that district.
District engineers may also recommend that the division engineer
exercise discretionary authority to modify, suspend, or revoke case-
specific NWP authorizations within a district to ensure that only
minimal cumulative adverse effects on the aquatic environment result
from activities authorized by that NWP. Evaluations by a district
engineer may result in the division engineer modifying, suspending, or
revoking NWP authorizations in a particular geographic region or
watershed at a later time, if the use of an NWP in a particular area
will result in more than minimal cumulative or individual adverse
effects on the aquatic environment. Special conditions added to NWP
authorizations on a case-by-case basis by district engineers, such as
compensatory mitigation requirements, help ensure that the NWPs
authorize only activities that result in minimal individual and
cumulative adverse effects on the aquatic environment.
Acreage Limits and Pre-Construction Notification Thresholds
We are proposing to retain most of the current acreage limits for
the NWPs and propose to modify some of the NWPs acreage limits. We are
also proposing 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.
The modified waiver language will also be applied to NWPs 21, 44, and
50, as well as proposed new NWPs A and B. We are proposing to replace
the 25 cubic yard limit for temporary pads in NWP 6 with a \1/10\-acre
limit for temporary pads. For NWP 50 we are proposing a \1/2\-acre
limit on 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. In NWPs 40 and 44 we are
proposing to increase protection of streams by adding a 300 linear foot
limit for losses of stream bed, which can be waived for intermittent
and ephemeral stream beds if the district engineer makes a written
determination concluding that the discharge will result in minimal
adverse effects.
Proposed NWP A, Land-Based Renewable Energy Generation Facilities,
and proposed NWP B, Water-Based Renewable Energy Generation Pilot
Projects, have a \1/2\-acre limit for losses 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. Both of these proposed NWPs require PCNs.
In NWP 48, we are proposing to add another PCN threshold for
proposed expansions of the project area for the production of
shellfish.
Compliance With the Endangered Species Act
In its April 6, 2005, decision in National Wildlife Federation et
al. v. Les Brownlee (No. 03-1392), the U.S. District Court for the
District of Columbia determined that the Corps is obligated to consult
with the U.S. Fish and Wildlife Service (FWS) on the effects of the
NWPs. In response to that decision, on March 13, 2007, the Corps
initiated Endangered Species Act Section 7(a)(2) programmatic
consultation with FWS and the National Marine Fisheries Service (NMFS)
for the current NWPs. NMFS provided a draft biological opinion and the
Corps provided comments on that draft biological opinion, as well as
additional information regarding the NWPs to NMFS as well as FWS. The
Corps also granted an extension of time to the NMFS to provide the next
draft of the biological opinion, and to the FWS to provide its draft
biological opinion. Since the 2007 programmatic consultation was not
completed, the
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Corps has reinitiated programmatic Section 7 consultation for the NWP
program. Corps districts will consult, as necessary, with the FWS and
the NMFS for the species that occur in their districts and may develop
regional conditions to protect listed species and designated critical
habitat.
Essential Fish Habitat
The NWP Program's compliance with the essential fish habitat (EFH)
consultation requirements of the Magnuson-Stevens Fishery Conservation
and Management Act will be achieved through EFH consultations between
Corps districts and NMFS regional offices. Corps districts will request
EFH consultations with the NMFS regional office in cases where
activities authorized by NWP may adversely affect EFH. The purpose of
these regional consultations is to determine if implementation of the
proposed NWPs and regional conditions within a particular region may
have an adverse effect on EFH. These consultations will be conducted
according to the EFH consultation regulations at 50 CFR 600.920.
Regional Conditioning of Nationwide Permits
Under Section 404(e), NWPs can only be issued for those activities
that result in minimal individual and cumulative adverse effects on the
aquatic environment. An important mechanism for ensuring compliance
with this requirement is an effective regional conditioning process.
Coordination with Federal and state agencies and Indian Tribes, and the
solicitation of public comments, assist division and district engineers
in identifying and developing appropriate regional conditions for the
NWPs. Effective regional conditions protect local aquatic ecosystems
and helps ensure that the NWPs authorize only those activities that
result in minimal individual and cumulative adverse effects on the
aquatic environment, and are in the public interest.
There are two types of regional conditions: (1) Corps regional
conditions and (2) water quality certification/Coastal Zone Management
Act consistency determination regional conditions.
Corps regional conditions may be added to NWPs by division
engineers after a public notice and comment process and coordination
with other Federal, state, and local agencies.
Examples of Corps regional conditions include:
Restricting the types of waters of the United States where
the NWPs may be used (e.g., fens, bogs, bottomland hardwoods, etc.) or
prohibiting the use of some or all of the NWPs in those types of waters
or in specific watersheds.
Restricting or prohibiting the use of NWPs in an area
covered by a Special Area Management Plan, or an Advanced
Identification study with associated regional general permits.
Adding pre-construction notification (PCN) requirements to
NWPs to require notification for all work in certain watersheds or
certain types of waters of the United States, or lowering the PCN
threshold.
Reducing NWP acreage limits in certain types of waters of
the United States, or specific waterbodies.
Revoking certain NWPs on a geographic or watershed basis.
Restricting activities authorized by NWPs to certain times
of the year in a particular waterbody, to minimize the adverse effects
of those activities on fish or shellfish spawning, wildlife nesting, or
other ecologically cyclical events.
Conditions necessary to ensure compliance with the
Endangered Species Act and essential fish habitat provisions of the
Magnuson-Stevens Fishery Conservation and Management Act.
Corps regional conditions approved by division engineers cannot
remove or reduce any of the terms and conditions of the NWPs, including
general conditions and PCN requirements. In other words, Corps regional
conditions can only be more restrictive than the original NWP terms and
conditions.
Regional conditions may also be added to the NWPs as a result of
water quality certifications (WQCs) issued by states, Indian Tribes, or
the U.S. EPA, as well as state Coastal Zone Management Act (CZMA)
consistency determinations.
At approximately the same time as the publication of this Federal
Register notice, each Corps district will issue an initial public
notice. Those initial public notices will include Corps regional
conditions proposed by our district offices, and will also request
comments or suggestions for additional Corps regional conditions. The
initial public notice may also include, for informational purposes
only, any proposed state or tribal WQC regional conditions or state
CZMA regional conditions. However, public comment on the state or
tribal WQC regional conditions or state CZMA regional conditions is
handled through a separate state or tribal administrative procedures
process. The public should not address such comments to the Corps.
In response to the district's initial public notice, interested
parties may suggest additional Corps regional conditions, or suggest
suspension or revocation of NWPs in certain geographic areas, such as
specific watersheds or waterbodies. Such comments should include data
to support the need for any suggested modifications, suspensions, or
revocations of NWPs.
After the NWPs are issued or reissued, the division engineer will
issue supplemental decision documents for each NWP. These supplemental
decision documents will address the NWP regional conditions. Each
supplemental decision document will also include a statement by the
division engineer, which will certify that the NWP, with approved
regional conditions, will authorize only activities with minimal
individual and cumulative adverse effects on the aquatic environment.
After the division engineer approves the Corps regional conditions,
each Corps district will issue a final public notice for the NWPs. The
final public notice will announce both the final Corps regional
conditions and any final WQC/CZMA regional conditions. The final public
notices will also announce the final status of water quality
certifications and CZMA consistency determinations for the NWPs. Corps
districts may adopt additional regional conditions in future public
notices (following public notice and comment procedures), if they
identify a need for such conditions.
Information on regional conditions and revocation can be obtained
from the appropriate district engineer, as indicated below.
Furthermore, this and additional information can be obtained on the
internet at http://www.usace.army.mil/CECW/Pages/cecwo_reg.aspx. If
you select a state on this Web site you will be directed to the Web
site of the appropriate Corps district office.
In cases where a Corps district has issued a regional general
permit that authorizes similar activities as one or more NWPs, the
district will clarify the use of the regional general permit versus the
NWP(s) during the regional conditioning process. For example, the
division engineer may revoke the applicable NWP(s) so that only the
regional general permit may be used to authorize those activities.
Water Quality Certification/Coastal Zone Management Act Consistency
Determination for Nationwide Permits
State or Tribal water quality certification, or waiver thereof, is
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required by Section 401 of the Clean Water Act, for activities
authorized by NWPs which result in a discharge into waters of the
United States. In addition, any state with a federally-approved CZMA
plan must agree with the Corps determination that activities authorized
by NWPs which are within, or will affect any land or water uses or
natural resources of the state's coastal zone, are consistent with the
CZMA plan to the maximum extent practicable. Water quality
certifications and/or CZMA consistency determinations may be issued
without conditions, issued with conditions, or denied for specific
NWPs.
We believe that, in general, the activities authorized by the NWPs
will not violate State or Tribal water quality standards and will be
consistent with state CZMA plans. The NWPs are conditioned to ensure
that adverse environmental effects will be minimal and address the
types of activities that would be routinely authorized if evaluated
under the individual permit process. We recognize that in some states
or Tribal lands there will be a need to add regional conditions, or
individual state or Tribal review for some activities, to ensure
compliance with water quality standards and/or consistency with the
state's CZMA plans. As a practical matter, we intend to work with
states and Tribes to ensure that NWPs include the necessary conditions
so that they can issue water quality certifications or CZMA consistency
concurrences. Therefore, each Corps district will initiate discussions
with their respective state(s) and Tribe(s), as appropriate, to discuss
issues of concern and identify regional modification and other
approaches to address the scope of waters, activities, discharges, and
PCNs, as appropriate, to resolve these issues. Note that in some states
the Corps has issued state programmatic general permits (SPGPs), and
within those states some or all of the NWPs may be suspended or revoked
by division engineers. Concurrent with today's proposal, district
engineers may be proposing modification or revocation of the NWPs in
states where SPGPs will be used in place of some or all of the NWPs.
Section 401 of the Clean Water Act
This Federal Register notice serves as the Corps application to the
Tribes, States, or EPA, where appropriate, for water quality
certification of the activities authorized by these NWPs. The Tribes,
States, and EPA, where appropriate, are requested to issue, deny, or
waive water quality certification pursuant to 33 CFR 330.4(c) for these
NWPs.
If a state denies a water quality certification for an NWP within
that state, then the affected activities are not authorized by NWP
within that state, until a project proponent obtains an individual
water quality certification, or the water quality certification is
waived. However, when applicants request approval of such activities,
and the Corps determines that those activities meet the terms and
conditions of the NWP, the Corps will issue provisional NWP
verification letters. The provisional verification letter will contain
general and regional conditions as well as any project specific
conditions the Corps determines are necessary for NWP authorization.
The Corps will notify the applicant that they must obtain a project
specific water quality certification, or waiver thereof, before they
are authorized to start work in waters of the United States. That is,
NWP authorization will be contingent upon obtaining the necessary water
quality certification or waiver thereof from the State, Tribe, or EPA
where appropriate. Anyone wanting to perform such activities where pre-
construction notification to the Corps is not required has an
affirmative responsibility to first obtain a project-specific water
quality certification or waiver thereof from the Tribe, State, or EPA
before proceeding under the NWP. This requirement is provided at 33 CFR
330.4(c).
Section 307 of the Coastal Zone Management Act (CZMA)
This Federal Register notice serves as the Corps determination that
the activities authorized by these NWPs are, to the maximum extent
practicable, consistent with state CZMA programs. This determination is
contingent upon the addition of state CZMA conditions and/or regional
conditions, or the issuance by the state of an individual consistency
concurrence, where necessary. States are requested to agree or disagree
with the consistency determination following 33 CFR 330.4(d) for these
NWPs.
The Corps CZMA consistency determination only applies to NWP
authorizations for activities that are within, or affect, any land,
water uses or natural resources of a State's coastal zone. NWP
authorizations for activities that are not within or would not affect a
State's coastal zone do not require a Corps CZMA consistency
determination and thus are not contingent on a State's agreement with
the Corps consistency determinations.
If a state disagrees with the Corps consistency determination for
an NWP, then the affected activities are not authorized by NWP within
that state, until a project proponent obtains an individual consistency
determination, or sufficient time (six months) passes after requesting
a consistency determination for the applicant to make a presumption of
consistency, as provided for in 33 CFR 330.4(d)(6). However, when
applicants request approval of such activities, and the Corps
determines that those activities meet the terms and conditions of the
NWP, the Corps will issue provisional NWP verification letters. The
provisional verification letter will contain general and regional
conditions as well as any project specific conditions the Corps
determines are necessary for NWP authorization. The Corps will notify
the applicant that they must obtain a project specific CZMA consistency
determination before they are authorized to start work in waters of the
United States. That is, NWP authorization will be contingent upon
obtaining the necessary CZMA consistency concurrence from the State.
Anyone wanting to perform such activities where pre-construction
notification to the Corps is not required has an affirmative
responsibility to present a consistency certification to the
appropriate State agency for concurrence. Upon concurrence with such
consistency certifications by the state, the activity would be
authorized by the NWP. This requirement is provided at 33 CFR 330.4(d).
Nationwide Permit Verifications
Certain NWPs require the permittee to submit a PCN, and thus
request confirmation from the district engineer that an activity
complies with the terms and conditions of an NWP, prior to commencing
the proposed work. The requirement to submit a PCN is identified in the
NWP text. Pre-construction notification requirements may be added to
NWPs by division engineers through regional conditions. In cases where
pre-construction notification is not required, a project proponent may
submit a PCN voluntarily, if he or she wants assurance that the
activity is authorized by an NWP. A NWP verification is a response to a
PCN that confirms that a particular activity is authorized by an NWP.
In response to an NWP verification request or PCN, the district
engineer reviews the information submitted by the prospective
permittee. If the district engineer determines that the activity
complies with the terms and conditions of the NWP, he or she will
notify the permittee. Special conditions, such as compensatory
mitigation requirements, may be added to the NWP authorization to
ensure that the activity results in
[[Page 9179]]
minimal individual and cumulative adverse effects on the aquatic
environment and other public interest factors. The special conditions
are incorporated into the NWP verification, along with the NWP text and
the NWP general conditions.
If the district engineer reviews the NWP verification request and
determines that the proposed activity does not comply with the terms
and conditions of an NWP, he or she will notify the project proponent
and provide instructions for applying for authorization under a
regional general permit or an individual permit. District engineers
will respond to NWP verification requests, submitted voluntarily or
when required, within 45 days of receiving a complete PCN. Except for
NWPs 21, 49, and 50, and for proposed NWP activities that require
Endangered Species Act Section 7 consultation and/or National Historic
Preservation Act Section 106 consultation, if the project sponsor has
not received a reply from the Corps within 45 days, he or she may
assume that the project is authorized, consistent with the information
in the PCN. For NWPs 21 (Surface Coal Mining Activities), 49 (Coal
Remining Activities), and 50 (Underground Coal Mining Activities), and
for proposed NWP activities that require Endangered Species Act Section
7 consultation and/or National Historic Preservation Act Section 106
consultation, the project sponsor may not begin work before receiving a
written NWP verification.
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.
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.
[[Page 9180]]
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-REG, 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.
Request for Comment
We are proposing to reissue 48 nationwide permits, as well as the
general conditions and definitions. We are also proposing to issue two
new NWPs, two new general conditions, and one new definition.
Substantive changes to the nationwide permits, general conditions, and
definitions are discussed below, but we are soliciting comments on all
the nationwide permits, general conditions, and definitions. Minor
grammatical changes, the removal of redundant language, and other small
changes are not discussed in the preamble below. Therefore, commenters
should carefully read each proposed NWP, general condition, and
definition in this notice.
NWP Not Proposed for Reauthorization
NWP 47. Pipeline Safety Program Designated Time Sensitive
Inspections and Repairs. This NWP was first issued in 2007 in reliance
on the Pipeline and Hazardous Materials Safety Administration's (PHMSA)
implementation of a Web-based system called the Pipeline Repair and
Environmental Guidance System (PREGS). The terms of NWP 47 required
permittees to report their use of this NWP through PREGS. PHMSA ceased
their development of PREGS, which the Corps planned to use in order to
monitor projects authorized by NWP 47. In the place of NWP 47, projects
subject to PHMSA's Pipeline Safety Program may be eligible for
authorization under NWP 3, Maintenance, or NWP 12, Utility Line
Activities, provided those projects meet the terms and conditions of
the appropriate NWP(s).
Discussion of Proposed Modifications to Existing Nationwide Permits
If an existing NWP is not listed in this section of the preamble,
we are proposing to reissue the NWP without changing it.
NWP 3. Maintenance. We are proposing to clarify that stream channel
excavation immediately adjacent to the structure or fill being
maintained that involves discharges of dredged or fill material into
waters of the United States and/or work in navigable waters of the
United States is authorized under paragraph (a) and does not require a
PCN. Examples of stream channel excavation activities that may be
authorized under paragraph (a) include those necessary to facilitate
minor deviations in a structure's configuration or filled area. This
can occur when structures or fills are replaced with larger culverts or
bridges that improve fish passage. Specifically, we are proposing to
add ``Any stream channel modification, is limited to the minimum
necessary for the repair, rehabilitation, or replacement of the
structure or fill; such modifications must be immediately adjacent to
the project'' to paragraph (a).
To simplify and clarify the text, we propose to replace the word
``and'' with ``and/or'' in the first sentence of paragraph (b) to
indicate that the activity does not need to include the placement of
new or additional riprap in order to qualify for the NWP. In paragraph
(d) we propose to explicitly state beach restoration is not authorized
by the NWP by removing beach restoration from the first sentence and
adding a stand-alone sentence. In the Notification provision we propose
to remove from the first part of the second sentence the phrase
``[w]here maintenance dredging is proposed'' because paragraph (b) of
the NWP is the only component of the NWP that requires a PCN. This
deletion will simplify redundant and confusing text.
[[Page 9181]]
NWP 5. Scientific Measurement Devices. We are proposing to add a
sentence to explicitly require the removal of the device and any
associated structures or fills at the conclusion of the study.
Specifically, we are proposing to add the following sentence: ``Upon
completion of the study the measuring device and any other structures
or fills associated with that device (e.g., anchors, buoys, lines,
etc.) must be removed and to the maximum extent practicable the site
must be restored to pre-construction elevations after the removal of
associated structures.'' We are proposing to add ``meteorological
stations'' as an example of the types of scientific measuring devices
authorized by this NWP since such devices are currently being used to
collect meteorological data for planning offshore wind energy
generation facilities. We are also proposing to add ``current gages''
and ``biological observation devices'' to the list of examples, because
such instruments may be used to collect data for sites that are being
considered for hydrokinetic energy generation facilities.
NWP 6. Survey Activities. We are proposing to modify how
exploratory trenches are backfilled by stating the work ``must not
drain a water of the United States.'' This would make the NWP
consistent with other NWPs that involve backfilling. We also propose to
adjust the requirements for the temporary pads necessary to provide
proper levels for equipment used for core sampling. Specifically, we
propose to remove 25 cubic yard limit and replace it with a \1/10\-acre
limit. The acreage limit for temporary pads applies to a single and
complete project, as defined at 33 CFR 330.2(i).
NWP 8. Oil and Gas Structures on the Outer Continental Shelf. We
are proposing to update the name of former Mineral Management Service
to the Bureau of Ocean Energy Management, Regulation, and Enforcement.
NWP 12. Utility Line Activities. We are proposing one minor change
regarding how the calculation of loss of waters of the United States
for a single and complete project with multiple components is made by
replacing the phrase ``* * * the total discharge from a * * *'' with ``
* * * the activity, in combination with all other activities included
in one * * *'' to the access road component of the NWP. This adjustment
would match the language from the utility line substation component of
the NWP.
NWP 13. Bank Stabilization. To encourage bank stabilization
activities that use bioengineering techniques and other methods that
may have less adverse environmental effects, we are proposing to modify
paragraph (c) by removing the waiver provision and authorizing bank
stabilization activities that utilize bioengineered techniques to
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. This change would not authorize bank stabilization activities
that involve hardening the bank with material such as sheet pile,
riprap, concrete, etc. if the discharge exceeds one cubic yard per
running foot. A separate form of Department of the Army authorization,
such as an individual permit or regional general permit, would be
required for such activities. Bioengineered techniques can slow erosion
rates and can have beneficial effects on habitat for macroinvertebrates
and fish and may include the use of living material or other material
such as tree revetments or root wads.
Because some bank stabilization activities require temporary
structures or fills, or a site to be temporarily dewatered, we propose
to add language authorizing these associated activities. This proposed
language is consistent with that used to authorize the same activity in
NWPs 3, 12, and 14.
NWP 15. U.S. Coast Guard Approved Bridges. We are proposing to
modify this NWP by removing the reference to the U.S. Coast Guard
authorizing the discharge of dredged or fill material into waters of
the United States as a part of their bridge permit, since their bridge
permits do not authorize such activities. We are also proposing 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. The other applicable laws include: The International Bridge Act
of 1972 (at 33 U.S.C. 535-535(i)), the General Bridge Act of 1946 (at
33 U.S.C. 525, 528, 530, and 533), the Bridge Act of 1906 (at 33 U.S.C.
491, 494, and 495); and the Rivers and Harbors Appropriation Act of
1899 (at 33 U.S.C. 401, 403, 406, and 502). Because a bridge permit
issued by the U.S. Coast Guard does not cover discharges of dredged or
fill material into navigable waters of the United States, and such
discharges are likely to be considered work that modifies those waters,
we propose to add section 10 authority to this NWP to provide
authorization under the Rivers and Harbors Act of 1899.
NWP 20. Response Operations for Oil and Hazardous Substances. We
are proposing to change the name of this NWP from ``Oil Spill Cleanup''
to ``Response Operations for Oil and Hazardous Substances'' to better
describe the activities and types of materials authorized by the NWP.
The proposed modification would also authorize a wider set of
activities, specifically containment and mitigation, associated with a
response operation's effort to manage a release of oil or hazardous
substances.
We are also proposing to modify the NWP to authorize work under a
wider range of approved response plans or work approved by a Federal
on-scene coordinator as designated by 40 CFR part 300.
Additionally, we propose to modify this NWP to authorize training
exercises for the cleanup of oil and hazardous substance by this NWP.
These drills can take place on land and water and sometimes involve the
use of temporary structures and fills used to contain spilt materials.
NWP 21. Surface Coal Mining Activities. To help make a fully
informed decision about whether or not to reissue NWP 21, we are
soliciting comment on three options for this NWP. Option 1 would be to
not reissue NWP 21. Option 2 would be to reissue NWP 21 with
modifications, including a \1/2\-acre limit for losses of non-tidal
waters of the United States, a 300 linear foot limit for the loss of
stream bed (with a waiver for the loss of intermittent and ephemeral
stream beds if the district engineer makes a written determination that
the discharge will result in minimal adverse effects), and a provision
prohibiting the use of NWP 21 to authorize discharges of dredged or
fill material into waters of the United States associated with the
construction of valley fills for surface coal mining activities. Option
3 would be to reissue NWP 21 with the same modifications as described
for Option 2, except there would be no provision prohibiting the use of
NWP 21 to authorize discharges of dredged or fill material into waters
of the United States associated with the construction of valley fills.
Options 2 and 3 would not authorize discharges of dredged or fill
material into tidal waters or non-tidal wetlands adjacent to tidal
waters.
The preferred option is Option 2, since the construction of valley
fills for surface coal mining activities substantially alters the
watersheds associated with headwater streams and has a greater
potential to cause more than minimal adverse effects on the aquatic
environment. Those changes to the watershed cause direct and indirect
effects to downstream waters.
Option 1, to not reissue NWP 21, would be consistent with a
[[Page 9182]]
determination that any discharge of dredge or fill material associated
with surface coal mining activities, in any region of the country,
might result in more than minimal adverse effects on the aquatic
environment and thus warrant the more rigorous review associated with
an individual permit. In contrast, the proposed modifications presented
in Options 2 and 3 would authorize minor activities associated with
surface coal mining activities such as the discharges of dredged or
fill material to construct sediment ponds or minor road crossings. All
the Options would require larger surface coal mining activities
involving discharges of dredged or fill material into waters of the
United States to be authorized by individual permits. In previously
issued versions of NWP 21, there was no limit on losses of waters of
the United States. Instead of acreage or linear foot limits the Corps
relied on the following to ensure minimal adverse effects: (a) The
implementation of environmental protections through SMCRA (e.g.,
preventing material damage to the hydrologic balance in the surrounding
areas and minimizing adverse impacts to fish and wildlife habitat);
and, (b) the requirement that the prospective permittee could not
commence work in waters of the United States until he or she received
written verification from the Corps district that the activity was
authorized by NWP 21. Under Options 2 and 3, the Corps would continue
to rely on these sources of assurance, along with the proposed new
acreage and linear foot limits, to ensure minimal adverse effects. The
Corps believes that this combination of safeguards is sufficient,
particularly if discharges associated with valley fills are not
authorized, and has thus identified Option 2 as its preferred option.
We are also soliciting public comment on additional options that
should be considered for the reissuance of NWP 21. In addition to the
three options described above, we are proposing to change the title of
this NWP by replacing the word ``Operations'' with ``Activities''
because the Corps only authorizes discharges of dredged or fill
material into waters of the United States, not the operation of the
surface coal mine. The operation of a surface coal mine is regulated
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
In addition, Clean Water Act Section 402 National Pollutant Discharge
Elimination System permits may authorize discharges of pollutants other
than dredge or fill material to waters of the United States, including
those from outfall pipes of sediment ponds.
On June 11, 2009, the Department of the Army, the Department of the
Interior (DOI), and the U.S. Environmental Protection Agency (EPA)
signed a Memorandum of Understanding (MOU) that addresses actions to
strengthen the environmental review of Appalachian surface coal mining.
The MOU includes an Interagency Action Plan (IAP) that was developed to
reduce the adverse environmental effects of surface coal mining
activities in the Appalachian region of Kentucky, Ohio, Pennsylvania,
Tennessee, Virginia, and West Virginia, while assuring that future
mining remains consistent with the Clean Water Act and SMCRA. One of
the short-term action items the Army agreed to do under the IAP was to
issue a Federal Register notice proposing to modify NWP 21 to preclude
its use to authorize discharges of fill material into streams for
surface coal mining activities in the Appalachian region of these six
states and to seek public comment on this proposal. On July 15, 2009,
the Corps published a Federal Register notice (74 FR 34311) to solicit
public comment on this proposal. As an interim measure to provide
environmental protection while the Corps evaluated the comments
received on the proposal to modify NWP 21, on June 18, 2010, the Corps
suspended NWP 21 in the Appalachian region of Kentucky, Ohio,
Pennsylvania, Tennessee, Virginia, and West Virginia (see 75 FR 34711).
Since the current NWP 21 will expire on March 18, 2012, it would be
more prudent to address the modification of NWP 21 in today's proposal,
instead of making a separate decision on the July 15, 2009, proposal to
modify NWP 21 in the Appalachian region of Kentucky, Ohio,
Pennsylvania, Tennessee, Virginia, and West Virginia. We also believe
that substantial changes to NWP 21 are necessary to ensure, at a
national level, that it authorizes only those discharges of dredged or
fill material into waters of the United States associated with surface
coal mining activities that have minimal individual and cumulative
adverse effects on the aquatic environment and other public interest
review factors. Nationwide permit 21 has been used to authorize surface
coal mining activities in at least 20 other states, such as states in
the west and southeast, and we believe it is necessary to impose an
acreage limit on NWP 21 to ensure that the surface coal mining
activities in those other states result in minimal adverse effects.
Division engineers have the authority to regionally condition this
NWP to impose an acreage or linear foot limit or other special
conditions, if there are concerns for the aquatic environment in a
particular district, watershed, or other geographic region. The
proposed modification of NWP 21 will provide an NWP for minor
activities associated with surface coal mining activities. Pre-
construction notification is still required before any activities
commence in waters of the United States and the applicant must receive
authorization in writing from the Corps before beginning the activity.
NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities. We are proposing to add ``the removal of small dams'' to
the list of examples of activities that can be authorized by this NWP.
In the reversion provision we are proposing to remove the phrase ``that
has not been abandoned'' that modifies the term ``prior converted
cropland'' because areas of prior converted cropland being used for
wetland or stream enhancement or restoration that are eligible for this
provision are subject to a binding agreement with the Natural Resources
Conservation Service and have not been abandoned, so the qualifier is
unnecessary.
We are proposing to modify ``Notification'' provisions (1) and (2)
by having stream restoration, rehabilitation, and enhancement
activities conducted in accordance with binding agreements with the
appropriate agencies or as voluntary actions documented by NRCS or a
USDA Technical Service Provider be subject to the reporting provision
instead. Additionally, we propose to modify notification provision (1)
by adding the United States Forest Service to the list of Federal
agencies that can develop stream or wetland enhancement, restoration,
or establishment agreements. The ``Notification'' provision requires
the permittee or appropriate Federal or state agency to notify the
district engineer in accordance with general condition 30 (formerly
general condition 27).
NWP 29. Residential Developments. We are proposing to modify 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.
NWP 31. Maintenance of Existing Flood Control Facilities. We are
proposing to add language that states, in those cases where a Corps
permit is required, the NWP authorizes the removal of vegetation from
levees
[[Page 9183]]
associated with a flood control project. The removal of vegetation from
a flood control levee may require a permit under Section 10 of the
Rivers and Harbors Act of 1899 if it is considered to be work in
navigable waters of the United States. Vegetation removal may also
require Clean Water Act Section 404 authorization if it involves
discharges of dredged or fill material into waters of the United
States.
NWP 39. Commercial and Institutional Developments. We are proposing
to modify 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.
NWP 40. Agricultural Activities. We are proposing to modify the
text of this NWP to impose a limit on stream bed impacts that mirrors
the limits in other NWPs, such as NWPs 29 and 39. Currently, the 300
linear foot limit for this NWP only applies to the relocation of
ditches constructed in streams. The modification would apply to all
stream impacts authorized by the NWP. Specifically, we propose to
replace the last sentence of the fourth paragraph with: ``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.''
NWP 42. Recreational Facilities. We are proposing to modify 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.
NWP 43. Stormwater Management Facilities. We are proposing to add
``low impact development stormwater features'' to the examples of types
of stormwater management facilities that are authorized by this NWP.
Low impact development for stormwater management comprises a set of
site design approaches and small-scale features that promote the use of
natural systems for infiltration, evapotranspiration, and reuse of
rainwater. The types of low impact development stormwater practices
that would be eligible for this NWP could include bioretention
features, swales and vegetated landscaping. We are also proposing to
modify 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.
NWP 44. Mining Activities. To be consistent with other NWPs and
ensure that the NWP authorizes only those activities with minimal
adverse effects, we are proposing to add a 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 discharge will result in
minimal adverse effects.
NWP 45. Repair of Uplands Damaged by Discrete Events. We are
proposing to modify this NWP by adding a sentence to clarify that it
does not authorize beach restoration. Beach nourishment or restoration
activities may be authorized by individual permits or regional general
permits.
NWP 48. Existing Commercial Shellfish Aquaculture Activities. The
modifications proposed for this NWP include authorizing the expansion
of existing commercial shellfish aquaculture operations. We are
proposing to remove the reporting requirement because we do not believe
it is necessary to track all activities authorized by this NWP. Many
existing commercial shellfish aquaculture activities have been in
continuous operation for many years, and are subject to a multitude of
Federal, state, and local regulations. We believe that our focus should
be on reviewing those proposed commercial shellfish aquaculture
activities that have the potential to result in more than minimal
adverse effects on the aquatic environment. Such activities are those
commercial shellfish aquaculture operations that exceed 100 acres in
size, involve dredge harvesting, tilling, or harrowing in areas
inhabited by submerged aquatic vegetation, or involve changes in
operation, such as expansions, reconfigurations, relocations, changes
in species cultivated, or changes in culture methods. Since many
commercial shellfish aquaculture activities, especially those on the
west coast, may affect listed or threatened species under the
Endangered Species Act, the notification requirement in general
condition 19, Endangered Species, will also result in these activities
being reported to the Corps.
We are also proposing to modify the notification thresholds by
adding a pre-construction notification requirement for all activities
that propose to expand the commercial production of shellfish beyond
the existing project area.
We are proposing to change the notification provision to require
the prospective permittee to submit the information that was required
for reporting under the current version of NWP 48. That information
will be used with the information submitted in accordance with
paragraph (b) of general condition 30, Pre-Construction Notification,
to determine if the proposed activity will result in minimal individual
and cumulative adverse effects on the aquatic environment and other
public interest review factors.
We are seeking comments on modifying NWP 48 to authorize new
commercial shellfish aquaculture activities or alternatively, issuing a
new NWP to authorize those activities that require DA authorization
under Section 404 of the Clean Water Act and/or Section 10 of the
Rivers and Harbors Act of 1899. We are also soliciting comments and
suggestions regarding appropriate limits for new commercial shellfish
aquaculture activities, as well as other terms and conditions that
would be appropriate for authorizing new shellfish aquaculture
activities with a nationwide permit to ensure minimal individual and
cumulative adverse effects.
NWP 49. Coal Remining Activities. We are proposing to modify this
NWP to clarify how the 40% of newly mined area is determined. As an
example, if there are 600 acres of land previously unreclaimed as a
result of previous mining activities and the Corps agrees with the
SMCRA agency's determination that there are 200 acres needed to
adequately reclaim the 600 acres, then there are a total of 800 acres
included in the previously mined area and area needed to be reclaimed.
Given this, the amount of newly mined area eligible for the NWP is 320
acres (40% of 800 acres). While the Corps acknowledges the SMCRA
agency's expertise, the Corps will review the SMCRA agency's
determination regarding the amount of previously unmined area necessary
for the reclamation of the previously mined area and independently
determine this area. This is necessary in order for the Corps to make
informed decisions regarding whether the proposal satisfies the minimal
adverse effects requirement of the NWP. We have also modified the
notification provision by requiring the
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prospective permittee to submit documentation with the PCN ``describing
how the overall mining plan will result in a net increase in aquatic
resource functions.''
NWP 50. Underground Coal Mining Activities. To provide acreage and
linear foot limits consistent with other NWPs and provide greater
assurance that the NWP will only authorize activities with minimal
adverse environmental effects, we are proposing to modify this NWP to
impose a \1/2\-acre limit on losses 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.
Discussion of Proposed New Nationwide Permits
A. Land Based Renewable Energy Generation Facilities. We are
proposing to issue a new NWP 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
storm water management facilities.
We are proposing 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. We believe
the \1/2\-acre limit, as well as the 300 linear foot limit for stream
impacts, will authorize only those activities that have minimal adverse
effects on the aquatic environment, individually and cumulatively.
Division engineers can regionally condition this NWP to lower the
acreage or linear foot limit or otherwise limit its use. We are
proposing to require pre-construction notification for all activities.
We are seeking comments on this proposed NWP, including its terms and
conditions, such as the proposed \1/2\-acre and 300 linear foot limits.
B. Water-Based Renewable Energy Generation Pilot Projects. We are
proposing to issue a new NWP to authorize structures and work in
navigable waters of the United States and the discharges of dredged or
fill material into waters of the United States, for the construction,
expansion, and modification of hydrokinetic or wind energy generation
pilot projects and their attendant features. This NWP also authorizes
structures and infrastructure to collect energy as well as utility
lines to transfer the energy to land-based distribution facilities.
We are proposing 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. We believe
the \1/2\-acre limit, as well as the 300 linear foot limit for stream
impacts, will authorize only those activities that have minimal adverse
effects on the aquatic environment, individually and cumulatively.
Division engineers can regionally condition this NWP to lower the
acreage or linear foot limit or add additional restrictions on its use.
The proposed NWP would also prohibit activities in danger zones and
restricted areas established by the Corps, as well as anchorage areas
and shipping safety fairways or traffic separation schemes designated
by the U.S. Coast Guard. This NWP would not authorize structures in
open water dredged material disposal areas designated by the Corps or
EPA. In addition, the NWP would not authorize activities in coral
reefs.
We are proposing to require pre-construction notification for all
activities. This proposed NWP would authorize activities that require
section 10 and/or 404 authorization.
We are proposing to add a note to this NWP (Note 1) to make it
clear that if the proposed activity involves modification of an
existing Corps project, a separate authorization from the Chief of
Engineers is required under 33 U.S.C. 408 to alter that Corps project.
The proposed NWP also includes Note 2, which instructs district
engineers to provide a copy of the NWP verification to the National
Oceanic and Atmospheric Administration (NOAA), National Ocean Service
(NOS) for charting structures and utility lines in navigable waters of
the United States to protect navigation.
We are seeking comments on this proposed new NWP, including its
terms and conditions, such as the proposed \1/2\-acre and 300 linear
foot limits.
Discussion of Proposed Modifications to Nationwide Permit General
Conditions
In the 2007 NWPs we reordered the general conditions (GCs) to make
them easier to read and to group together the GCs that are associated
with environmental concerns and public interest review factors,
followed by general conditions relating to administrative requirements.
In this proposal, we are moving former general condition 28, Single and
Complete Project, and renumbering it as general condition 16. The
following GCs would be renumbered, but we are not proposing to make any
changes to the text of those GCs: Proper Maintenance; Tribal Rights;
Water Quality; Coastal Zone Management; Regional and Case-by-Case
Conditions; Use of Multiple Nationwide Permits; and Transfer of
Nationwide Permit Verifications.
GC 2. Aquatic Life Movements. To provide added protection to the
aquatic environment we are proposing to modify this GC by adding a
statement requiring bottomless culverts to be used when practicable. We
are proposing to provide an example of a circumstance where it would
not be practicable to use a bottomless culvert, such as sites where
sub-grade instability would make it unsafe to use a bottomless culvert.
The proposed modification of this general condition would also require
the bottom of the culvert to be below the grade of the stream bed
unless the stream bed consists of bedrock or boulders.
GC 14. Discovery of Previously Unknown Remains and Artifacts. We
are proposing to add a new general condition to address circumstances
when previously unknown historic, cultural or archeological remains or
artifacts are discovered during construction of the authorized
activity. The Corps uses a similar general condition (number 3) on all
standard permits as prescribed by 33 CFR part 325, Appendix A. This GC
would also require a permittee, to the maximum extent practicable, to
stop activities that would adversely affect those remains and artifacts
until the required coordination has been completed.
GC 17. Wild and Scenic Rivers. We are proposing to modify this
general condition to clarify that project proponents should obtain
information from the specific Federal land management agency
responsible for the designated Wild and Scenic River or study river.
GC 19. Endangered Species. We are proposing to modify paragraph (a)
of this general condition to clarify that direct and indirect effects
are to be taken into account when assessing
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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.
We are also proposing to modify paragraph (e) to include
definitions of ``take'' and ``harm''. We are proposing 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. That guidance was previously provided in
paragraph (e).
GC 20. Historic Properties. (Formerly general condition 18.) We are
proposing to modify paragraph (c) by stating district engineers will
comply with the current procedures for addressing the requirements of
Section 106 of the National Historic Preservation Act. The Regulatory
Program's procedures for the protection of historic properties are
provided in Appendix C of 33 CFR part 325. On April 25, 2005, we issued
revised interim guidance for implementing Appendix C in light of the
Advisory Council on Historic Preservation's revised regulations at 36
CFR part 800. We believe this general condition should have a more
general reference to the Corps Regulatory Program's current procedures
for section 106 compliance, since we are using Appendix C, the revised
interim guidance, and other guidance for section 106 compliance.
GC 21. Designated Critical Resource Waters. (Formerly general
condition 19.) We are proposing to modify this general condition to
clarify the types of areas subject to the GC by altering how NOAA's
marine sanctuaries are described, which categories of critical resource
waters are always subject to this general condition, and which
categories of critical resource waters can be designated by a district
engineer after a public notice and comment process. This general
condition will also specify that state-designated outstanding national
resource waters are intended for inclusion in the general condition. We
also propose making state natural heritage sites subject to the
district engineer's designation process in order to provide the public
an opportunity to comment on a proposed designation of new critical
resource waters and any effects the designation of those waters will
have on local NWP program implementation. States may request the
district engineer to consider designating state natural heritage sites
as critical resource waters subject to this general condition. For
those NWPs listed in paragraph (b), district engineers determine on a
case-by-case basis whether special permit conditions are needed to
protect critical resource waters, or whether discretionary authority to
require an individual permit should be exercised.
We are proposing to add proposed new NWPs A and B to the list of
NWPs in paragraph (a) that cannot be used to authorize activities in
designated critical resource waters.
GC 22. Mitigation. (Formerly general condition 20.) We are
proposing to modify paragraph (g) so it better reflects our
compensatory mitigation regulations at 33 CFR part 332. Specifically,
we would replace the word ``arrangements'' with ``programs'' in
describing in-lieu fee programs. We are also proposing to replace the
phrase ``activity-specific'' with ``permittee-responsible'' when
referring to compensatory mitigation implemented by the permittee.
Another proposed change is the addition of 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. This will encourage the use of in-kind
mitigation to compensate for the losses of marine or estuarine
resources. Lastly, we propose 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, shall be identified in the special conditions of the NWP
verification.
GC 23. Safety of Impoundment Structures. We are proposing to add
this general condition to clarify that district engineers can request
that a non-Federal applicant demonstrate the proposed impoundment
structure is designed for safety in accordance with 33 CFR 320.4(k).
GC 29. Compliance Certification. (Formerly general condition 26.)
We are proposing to make minor changes to clarify that the Corps
provides the permittee with the necessary document to complete and
return to the Corps as the signed certification.
GC 30. Pre-Construction Notification. (Formerly general condition
27.) We are proposing to rearrange paragraph (d)(2) to make it clearer
that all NWP activities resulting in the loss of greater than \1/2\-
acre of waters of the United States require agency coordination. We are
also proposing to require agency coordination for an NWP 21, 29, 39,
40, 42, 43, 50, A, or B PCN when the proposed activity will result in
the loss of greater than 1,000 linear feet of intermittent and
ephemeral stream bed. This is a subset of cases where a waiver by the
district engineer is required for a loss of greater than 300 linear
feet of intermittent and ephemeral stream bed. The Corps believes that
the addition of this coordination requirement for a subset of waivers,
along with the added requirement of written minimal adverse effects
determinations for all waivers and further specification of factors
that need to be taken into account in minimal effects determinations
(see below), appropriately balances the need to ensure that any waiver
does not result in more than minimal adverse effects, individually and
cumulatively, with the regulated public's expectation that the Corps
will issue NWP verifications in a timely manner. The Corps requests
comment on this approach for strengthening the waiver provisions of the
affected NWPs.
In paragraph (e), we are proposing to clarify that the district
engineer must make a written determination of minimal adverse effects
before waiving the 300 linear foot limit on impacts to intermittent or
ephemeral streams or an otherwise applicable limit, as provided for in
NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, A or B. More generally, we
are also proposing to clarify that the district engineer is to consider
direct and indirect effects caused by the NWP activity when determining
if an NWP activity results in minimal adverse effects on the aquatic
environment, individually and cumulatively. Specifically, we are
proposing to add this language after the first sentence of paragraph
(e)(1): ``If an applicant requests a waiver of the 300 linear foot
limit on impacts to intermittent or ephemeral streams or an otherwise
applicable limit, as provided for in NWPs 13, 21, 29, 36, 39, 40, 42,
43, 44, 50, A or B, the district engineer will only grant the waiver
upon a written determination that the discharge 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.''
We are also proposing to add language to paragraph (e)(1) that
describes factors to consider when making minimal effects
determinations for the purposes of the NWPs. Functional assessments may
be used to make minimal effects determinations, if appropriate methods
are available and practicable to use for a particular NWP activity.
District engineers may also add special conditions to NWP
authorizations to address site-specific environmental concerns and
impose requirements to
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ensure that authorized activities result in minimal adverse effects.
Discussion of Proposed Modifications to Existing Nationwide Permit
Definitions
We are proposing changes to some of the NWP definitions. If a
definition is not discussed below, we are not proposing any substantive
changes to that definition.
Compensatory Mitigation. We are proposing to modify this definition
to be consistent with the definition of this term found in 33 CFR
332.2.
Re-establishment. We are proposing 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.
Single and Complete Project. We are proposing to modify this
definition by splitting it into two definitions pertaining to linear
(Single and Complete Linear Projects) and non-linear (Single and
Complete Non-Linear Projects) projects in order to clarify how the
``independent utility'' test applies to non-linear projects.
Discussion of New Proposed Nationwide Permit Definitions
We are proposing to add three new definitions to assist those using
the nationwide permits. As discussed above, we are proposing separate
definitions of the terms ``single and complete linear project'' and
``single and complete non-linear project.'' We are also proposing to
add a definition of the term ``high tide line.'' The definition of
``high tide line'' is adapted from the definition at 33 CFR 328.3(d).
Administrative Requirements
Plain Language
In compliance with the principles in the President's Memorandum of
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is
written using plain language. The use of ``we'' in this notice refers
to the Corps. We have also used the active voice, short sentences, and
common everyday terms except for necessary technical terms.
Paperwork Reduction Act
The proposed NWPs will increase the number of permittees who are
required to submit a PCN. The content of the PCN is not changed from
the current NWPs, except for NWP 48, where information from the current
reporting requirement is being moved into the PCN, but the paperwork
burden will increase because of the increased number of PCNs submitted.
For the two new proposed NWPs A and B, the paperwork burden would be an
estimated 3,300 hours per year for 300 PCNs. This is based on an
average burden to complete and submit a PCN of 11 hours. However,
activities that would be authorized by the two proposed new NWPs are
currently authorized by alternative forms of Department of the Army
(DA) permits (i.e., standard permits, letters of permission, or
regional general permits), with many needing a standard permit
application which requires an average burden of 11 hours to complete
and submit. Since the paperwork burden is similar for standard permit
applications and PCNs, we anticipate no additional paperwork burden if
the two proposed NWPs are issued. Similarly, we anticipate no
additional burden from the increased information required in a PCN for
NWP 48 because the same information is currently being requested
through the reporting requirement, which we are proposing to eliminate.
Prospective permittees who are required to submit a PCN for a
particular NWP, or who are requesting verification that a particular
activity qualifies for NWP authorization, may use the current standard
Department of the Army permit application form.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
For the Corps Regulatory Program under Section 10 of the Rivers and
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the
current OMB approval number for information collection requirements is
maintained by the Corps of Engineers (OMB approval number 0710-0003,
which expires on August 31, 2012).
Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether the regulatory action is ``significant'' and
therefore subject to review by OMB and the requirements of the
Executive Order. The Executive Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, we have determined
that the proposed rule is a ``significant regulatory action'' and the
draft rule was submitted to OMB for review.
Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the Corps to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' The proposed issuance and modification of NWPs does not
have federalism implications. We do not believe that the proposed NWPs
will have substantial direct effects on the States, on the relationship
between the Federal government and the States, or on the distribution
of power and responsibilities among the various levels of government.
The proposed NWPs will not impose any additional substantive
obligations on State or local governments. Therefore, Executive Order
13132 does not apply to this proposal.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
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.
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The statues under which the Corps issues, reissues, or modifies
nationwide permits are Section 404(e) of the Clean Water Act (33 U.S.C.
1344(e)) and Section 10 of the Rivers and Harbors Act of 1899 (33
U.S.C. 403). Under section 404, Department of the Army (DA) permits are
required for discharges of dredged or fill material into waters of the
United States. Under section 10, DA permits are required for any
structures or other work that affect the course, location, or condition
of navigable waters of the United States. Small entities proposing to
discharge dredged or fill material into waters of the United States
and/or conduct work in navigable waters of the United States must
obtain DA permits to conduct those activities, unless a particular
activity is exempt from those permit requirements. Individual permits
and general permits can be issued by the Corps to satisfy the permit
requirements of these two statutes. Nationwide permits are a form of
general permit issued by the Chief of Engineers.
Nationwide permits automatically expire and become null and void if
they are not modified or reissued within five years of their effective
date (see 33 CFR 330.6(b)). Furthermore, Section 404(e) of the Clean
Water Act states that general permits, including NWPs, can be issued
for no more than five years. If the current NWPs are not reissued, they
will expire on March 18, 2012, and small entities and other project
proponents would be required to obtain alternative forms of DA permits
(i.e., standard permits, letters of permission, or regional general
permits) for activities involving discharges of dredged or fill
material into waters of the United States or structures or work in
navigable waters of the United States. Regional general permits that
authorize similar activities as the NWPs may be available in some
geographic areas, but small entities conducting regulated activities
outside those geographic areas would have to obtain individual permits
for activities that require DA permits.
When compared to the compliance costs for individual permits, most
of the terms and conditions of the proposed NWPs are expected to result
in decreases in the costs of complying with the permit requirements of
sections 10 and 404. The anticipated decrease in compliance cost
results from the lower cost of obtaining NWP authorization instead of
standard permits. Unlike standard permits, NWPs authorize activities
without the requirement for public notice and comment on each proposed
activity.
Another requirement of Section 404(e) of the Clean Water Act is
that general permits, including nationwide permits, authorize only
those activities that result in 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.
After considering the economic impacts of the proposed nationwide
permits on small entities, I certify that this action will not have a
significant impact on a substantial number of small entities. Small
entities may obtain required DA authorizations through the NWPs, in
cases where there are applicable NWPs authorizing those activities and
the proposed work will result in minimal adverse effects on the aquatic
environment and other public interest review factors. The terms and
conditions of the revised NWPs will not impose substantially higher
costs on small entities than those of the existing NWPs. If an NWP is
not available to authorize a particular activity, then another form of
DA authorization, such as an individual permit or regional general
permit, must be secured. However, as noted above, we expect a slight to
moderate increase in the number of activities than can be authorized
through NWPs, because we are adding two new NWPs, and we are removing
some limitations in existing NWPs and replacing them with PCN
requirements that will allow the district engineer to judge whether any
adverse effects of the proposed project are more than minimal, and
authorize the project under an NWP if they are not.
We are interested in the potential impacts of the proposed NWPs on
small entities and welcome comments on issues related to such impacts.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under Section 202 of the UMRA, the
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and Tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating a rule for which a
written statement is needed, Section 205 of the UMRA generally requires
the agencies to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective, or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows an agency to adopt an
alternative other than the least costly, most cost-effective, or least
burdensome alternative if the agency publishes with the final rule an
explanation why that alternative was not adopted. Before an agency
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including Tribal governments, it
must have developed, under Section 203 of the UMRA, a small government
agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of affected small governments to
have meaningful and timely input in the development of regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
We have determined that the proposed NWPs do not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. The proposed NWPs are generally consistent with
current agency practice, do not impose new substantive requirements and
therefore do not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and Tribal
governments, in the aggregate, or the private sector in any one year.
Therefore, this proposal is not subject to the requirements of Sections
202 and 205 of the UMRA. For the same reasons, we have determined that
the proposed NWPs contain no regulatory requirements that might
significantly or uniquely affect small governments. Therefore, the
proposed issuance and modification of NWPs is not subject to the
requirements of Section 203 of UMRA.
Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that we have reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria,
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we must evaluate the environmental health or safety effects of the
proposed rule on children, and explain why the regulation is preferable
to other potentially effective and reasonably feasible alternatives.
The proposed NWPs are not subject to this Executive Order because
they are not economically significant as defined in Executive Order
12866. In addition, the proposed NWPs do not concern an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children.
Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires agencies to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' The phrase
``policies that have tribal implications'' is defined in the Executive
Order to include regulations that have ``substantial direct effects on
one or more 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 proposal to issue NWPs does not have tribal implications. It is
generally consistent with current agency practice and will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and the Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes. Therefore, Executive Order 13175 does not
apply to this proposal. However, in the spirit of Executive Order
13175, we specifically request comment from Tribal officials on the
proposed rule. Each Corps district will be conducting government-to-
government consultation with Tribes, to identify regional conditions or
other local NWP modifications that may be necessary to protect aquatic
resources of interest to Tribes, as part of the Corps responsibility to
protect trust resources.
Environmental Documentation
A draft decision document, which includes a draft environmental
assessment and Finding of No Significant Impact (FONSI) has been
prepared for each proposed NWP. These draft decision documents are
available at: 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 proposed NWPs are not expected to negatively impact any
community, and therefore are not expected to cause any
disproportionately high and adverse impacts to minority or low-income
communities.
Executive Order 13211
The proposed NWPs are not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Authority
We are proposing to issue new NWPs, modify existing NWPs, and
reissue NWPs without change under the authority of Section 404(e) of
the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and
Harbors Act of 1899 (33 U.S.C. 401 et seq.).
Dated: February 9, 2011.
MG William T. Grisoli,
Deputy Commanding General for Civil and Emergency Operations.
Nationwide Permits, Conditions, Further Information, and Definitions
A. Index of Nationwide Permits, Conditions, Further Information, and
Definitions Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. 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
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
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45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
48. Existing Commercial Shellfish Aquaculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
A. Land-Based Renewable Energy Generation Facilities
B. 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. Discovery of Previously Unknown Remains and Artifacts
15. Proper Maintenance
16. Single and Complete Project
17. Wild and Scenic Rivers
18. Tribal Rights
19. Endangered Species
20. Historic Properties
21. Designated Critical Resource Waters
22. Mitigation
23. Safety of Impoundment Structures
24. Water Quality
25. Coastal Zone Management
26. Regional and Case-by-Case Conditions
27. Use of Multiple Nationwide Permits
28. Transfer of Nationwide Permit Verifications
29. Compliance Certification
30. Pre-Construction Notification
Further Information
Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Discharge
Enhancement
Ephemeral stream
Establishment (creation)
High Tide Line
Historic property
Independent utility
Intermittent stream
Loss of waters of the United States
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete 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, 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 must be immediately adjacent to the project. 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 and within 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 immediate vicinity of the structure to the
approximate dimensions that existed when the structure was built, but
cannot extend further than 200 feet in any direction from the
structure. This 200 foot limit does not apply to maintenance dredging
to remove accumulated sediments blocking or restricting outfall and
intake structures or to maintenance dredging to remove accumulated
sediments from canals associated with outfall and intake structures.
All dredged or excavated materials must be deposited and retained in an
upland area unless otherwise specifically approved by the district
engineer under separate authorization. The placement of riprap must be
the minimum necessary to protect the structure or to ensure the safety
of the structure. Any bank stabilization measures not directly
associated with the structure will require a separate authorization
from the district engineer.
(c) This NWP also authorizes temporary structures, fills, and work
necessary to conduct the maintenance activity. Appropriate measures
must be taken to maintain normal downstream flows and minimize flooding
to the maximum extent practicable, when temporary structures, work, and
discharges, including cofferdams, are necessary for construction
activities, access fills, or dewatering of construction sites.
Temporary fills must consist of materials, and be placed in a manner,
that will not be eroded by expected high flows. Temporary fills must be
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be
revegetated, as appropriate.
(d) This NWP does not authorize maintenance dredging for the
primary purpose of navigation. 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 30). 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
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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, 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 study,
the measuring device and any other structures or fills associated with
that device (e.g., anchors, buoys, lines, etc.) must be removed and, to
the maximum extent practicable, the site must be 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, 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
that are otherwise in compliance with regulations issued under the
National Pollutant Discharge Elimination System Program (Section 402 of
the Clean Water Act). The construction of intake structures is not
authorized by this NWP, unless they are directly associated with an
authorized outfall structure.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 30.) (Sections 10 and 404)
8. Oil and Gas Structures on the Outer Continental Shelf.
Structures for the exploration, production, and transportation of oil,
gas, and minerals on the outer continental shelf within areas leased
for such purposes by the Department of the Interior, Bureau of Ocean
Energy Management, Regulation, and Enforcement. Such structures shall
not be placed within the limits of any designated shipping safety
fairway or traffic separation scheme, except temporary anchors that
comply with the fairway regulations in 33 CFR 322.5(l). The district
engineer will review such proposals to ensure compliance with the
provisions of the fairway regulations in 33 CFR 322.5(l). Any Corps
review under this NWP will be limited to the effects on navigation and
national security in accordance with 33 CFR 322.5(f). Such structures
will not be placed in established danger zones or restricted areas as
designated in 33 CFR part 334, nor will such structures be permitted in
EPA or Corps designated dredged material disposal areas.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 30.) (Section 10)
9. Structures in Fleeting and Anchorage Areas. Structures, buoys,
floats and other devices placed within anchorage or fleeting areas to
facilitate moorage of vessels where the U.S. Coast Guard has
established such areas for that purpose. (Section 10)
10. Mooring Buoys. Non-commercial, single-boat, mooring buoys.
(Section 10)
11. Temporary Recreational Structures. Temporary buoys, markers,
small floating docks, and similar structures placed for recreational
use during specific events such as water skiing competitions and boat
races or seasonal use, provided that such structures are removed within
30 days after use has been discontinued. At Corps of Engineers
reservoirs, the reservoir manager must approve each buoy or marker
individually. (Section 10)
12. Utility Line Activities. Activities required for the
construction, maintenance, repair, and removal of utility lines and
associated facilities in waters of the United States, provided the
activity does not result in the loss of greater than \1/2\-acre of
waters of the United States.
Utility lines: This NWP authorizes the construction, maintenance,
or repair of utility lines, including outfall and intake structures,
and the associated excavation, backfill, or bedding for the utility
lines, in all waters of the United States, provided there is no change
in pre-construction contours. A ``utility line'' is defined as any pipe
or pipeline for the transportation of any gaseous, liquid, liquescent,
or slurry substance, for any purpose, and any cable, line, or wire for
the transmission for any purpose of electrical energy, telephone, and
telegraph messages, and radio and television communication. The term
``utility line'' does not include activities that drain a water of the
United States, such as drainage tile or french drains, but it does
apply to pipes conveying drainage from another area.
Material resulting from trench excavation may be temporarily
sidecast into waters of the United States for no more than three
months, provided the material is not placed in such a manner that it is
dispersed by currents or other forces. The district engineer may extend
the period of temporary side casting for no more than a total of 180
days, where appropriate. In wetlands, the top 6 to 12 inches of the
trench should normally be backfilled with topsoil from the trench. The
trench cannot be constructed or backfilled in such a manner as to drain
waters of the United States (e.g., backfilling with extensive gravel
layers, creating a french drain effect). Any exposed slopes and stream
banks must be stabilized immediately upon completion of the utility
line crossing of each waterbody.
Utility line substations: This NWP authorizes the construction,
maintenance, or expansion of substation facilities associated with a
power line or
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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 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 30.) (Sections 10 and 404)
Note 1: Where the proposed utility line is constructed or
installed in navigable waters of the United States (i.e., section 10
waters), copies of the pre-construction notification and NWP
verification will be sent by the Corps to the National Oceanic and
Atmospheric Administration (NOAA), National Ocean Service (NOS), for
charting the utility line to protect navigation.
Note 2: Access roads used for both construction and maintenance
may be authorized, provided they meet the terms and conditions of
this NWP. Access roads used solely for construction of the utility
line must be removed upon completion of the work, 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).
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 permittee utilizes
bioengineering techniques to accomplish the bank stabilization;
(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 the type, or is placed in any location, or in
any manner, to impair surface water flow into or out of any water of
the United States;
(f) No material is placed in a manner that will be eroded by normal
or expected high flows (properly anchored trees and treetops may be
used in low energy areas); and,
(g) The activity is not a stream channelization activity.
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.
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. (See
general condition 30.) (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,
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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 30.) (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.
(Sections 10 and 404)
16. Return Water From Upland Contained Disposal Areas. Return water
from an upland contained dredged material disposal area. The return
water from a contained disposal area is administratively defined as a
discharge of dredged material by 33 CFR 323.2(d), even though the
disposal itself occurs on the upland and does not require a section 404
permit. This NWP satisfies the technical requirement for a section 404
permit for the return water where the quality of the return water is
controlled by the state through the section 401 certification
procedures. The dredging activity may require a section 404 permit (33
CFR 323.2(d)), and will require a section 10 permit if located in
navigable waters of the United States. (Section 404)
17. Hydropower Projects. Discharges of dredged or fill material
associated with hydropower projects having: (a) Less than 5,000 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 30.) (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 30.) (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 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. We are seeking comment on the
following three options:
Option 1--Do not reissue NWP 21.
Option 2 (Preferred Option)--21. Surface Coal Mining Activities.
Discharges of dredged or fill material into waters of the United States
associated with surface coal mining and reclamation operations provided
the 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 (DOI), Office of
Surface Mining Reclamation and Enforcement (OSMRE).
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States, including
[[Page 9193]]
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 tidal waters or non-tidal wetlands adjacent
to tidal waters.
This NWP does not authorize discharges of dredged or fill material
into waters of the United States associated with the construction of
valley fills.
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 30.) (Sections
10 and 404)
Option 3--21. Surface Coal Mining Activities. Discharges of dredged
or fill material into waters of the United States associated with
surface coal mining and reclamation operations provided the 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 (DOI), Office of Surface Mining
Reclamation and Enforcement (OSMRE).
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 tidal waters or non-tidal wetlands adjacent to tidal
waters.
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 30.) (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 30.) 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 19, 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 30). The activities that require
pre-construction notification are listed in the appropriate Regulatory
Guidance Letters. (Sections 10 and 404)
Note: The agency or department may submit an application for an
activity believed to be categorically excluded to the Office of the
Chief of Engineers (Attn: CECW-CO). Prior to approval for
authorization under this NWP of any agency's activity, the Office of
the Chief of Engineers will solicit public comment. As of the date
of issuance of this NWP, agencies with approved categorical
exclusions are the: Bureau of Reclamation, Federal Highway
Administration, and U.S. Coast Guard. Activities approved for
authorization under this NWP as of the date of this notice are found
in Corps Regulatory Guidance Letter 05-07, which is available at:
http://www.usace.army.mil/CECW/Pages/rglsindx.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 section 10 permit if
located in navigable waters of the United States. (Section 404)
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities. Activities in waters of the United States associated with
the restoration, enhancement, and establishment of tidal and non-tidal
wetlands and riparian areas and the restoration and enhancement of non-
tidal streams and other non-tidal open waters, provided those
activities result in net increases in aquatic resource functions and
services.
To the extent that a Corps permit is required, activities
authorized by this NWP include, but are not limited to:
[[Page 9194]]
The removal of accumulated sediments; the installation, removal, and
maintenance of small water control structures, dikes, and berms; the
installation of current deflectors; the enhancement, restoration, or
establishment of riffle and pool stream structure; the placement of in-
stream habitat structures; modifications of the stream bed and/or banks
to restore or establish stream meanders; the backfilling of artificial
channels and drainage ditches; the removal of existing drainage
structures; the construction of small nesting islands; the construction
of open water areas; the construction of oyster habitat over
unvegetated bottom in tidal waters; shellfish seeding; activities
needed to reestablish vegetation, including plowing or discing for seed
bed preparation and the planting of appropriate wetland species;
mechanized land clearing to remove non-native invasive, exotic, or
nuisance vegetation; the removal of small dams; and other related
activities. Only native plant species should be planted at the site.
This NWP authorizes the relocation of non-tidal waters, including
non-tidal wetlands and streams, on the project site provided there are
net increases in aquatic resource functions and services.
Except for the relocation of non-tidal waters on the project site,
this NWP does not authorize the conversion of a stream or natural
wetlands to another aquatic habitat type (e.g., stream to wetland or
vice versa) or uplands. This NWP does not authorize stream
channelization. This NWP does not authorize the relocation of tidal
waters or the conversion of tidal waters, including tidal wetlands, to
other aquatic uses, such as the conversion of tidal wetlands into open
water impoundments.
Reversion. For enhancement, restoration, and establishment
activities conducted: (1) In accordance with the terms and conditions
of a binding stream or wetland enhancement or restoration agreement, or
a wetland establishment agreement, between the landowner and the U.S.
Fish and Wildlife Service (FWS), the Natural Resources Conservation
Service (NRCS), the Farm Service Agency (FSA), the National Marine
Fisheries Service (NMFS), the National Ocean Service (NOS), U.S. Forest
Service (USFS), or their designated state cooperating agencies; (2) as
voluntary wetland restoration, enhancement, and establishment actions
documented by the NRCS or USDA Technical Service Provider pursuant to
NRCS Field Office Technical Guide standards; or (3) on reclaimed
surface coal mine lands, in accordance with a Surface Mining Control
and Reclamation Act permit issued by the Office of Surface Mining
Reclamation and Enforcement (OSMRE) or the applicable state agency,
this NWP also authorizes any future discharge of dredged or fill
material associated with the reversion of the area to its documented
prior condition and use (i.e., prior to the restoration, enhancement,
or establishment activities). The reversion must occur within five
years after expiration of a limited term wetland restoration or
establishment agreement or permit, and is authorized in these
circumstances even if the discharge occurs after this NWP expires. The
five-year reversion limit does not apply to agreements without time
limits reached between the landowner and the FWS, NRCS, FSA, NMFS, NOS,
USFS, or an appropriate state cooperating agency. This NWP also
authorizes discharges of dredged or fill material in waters of the
United States for the reversion of wetlands that were restored,
enhanced, or established on prior-converted cropland or on uplands, in
accordance with a binding agreement between the landowner and NRCS,
FSA, FWS, or their designated state cooperating agencies (even though
the restoration, enhancement, or establishment activity did not require
a section 404 permit). The prior condition will be documented in the
original agreement or permit, and the determination of return to prior
conditions will be made by the Federal agency or appropriate state
agency executing the agreement or permit. Before conducting any
reversion activity the permittee or the appropriate Federal or state
agency must notify the district engineer and include the documentation
of the prior condition. Once an area has reverted to its prior physical
condition, it will be subject to whatever the Corps Regulatory
requirements are applicable to that type of land at the time. The
requirement that the activity result in a net increase in aquatic
resource functions and services does not apply to reversion activities
meeting the above conditions. Except for the activities described
above, this NWP does not authorize any future discharge of dredged or
fill material associated with the reversion of the area to its prior
condition. In such cases a separate permit would be required for any
reversion.
Reporting: For those activities that do not require pre-
construction notification, the permittee must submit to the district
engineer a copy of: (1) The binding 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.
These documents must be submitted to the district engineer at least 30
days prior to commencing activities in waters of the United States
authorized by this NWP.
Notification. The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
(see general condition 30), 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. (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
[[Page 9195]]
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 30.) (Sections 10 and 404)
30. Moist Soil Management for Wildlife. Discharges of dredged or
fill material into non-tidal waters of the United States and
maintenance activities that are associated with moist soil management
for wildlife for the purpose of continuing ongoing, site-specific,
wildlife management activities where soil manipulation is used to
manage habitat and feeding areas for wildlife. Such activities include,
but are not limited to, plowing or discing to impede succession,
preparing seed beds, or establishing fire breaks. Sufficient riparian
areas must be maintained adjacent to all open water bodies, including
streams to preclude water quality degradation due to erosion and
sedimentation. This NWP does not authorize the construction of new
dikes, roads, water control structures, or similar features associated
with the management areas. The activity must not result in a net loss
of aquatic resource functions and services. This NWP does not authorize
the conversion of wetlands to uplands, impoundments, or other open
water bodies. (Section 404)
Note: The repair, maintenance, or replacement of existing water
control structures or the repair or maintenance of dikes may be
authorized by NWP 3. Some such activities may qualify for an
exemption under Section 404(f) of the Clean Water Act (see 33 CFR
323.4).
31. Maintenance of Existing Flood Control Facilities. Discharges of
dredged or fill material resulting from activities associated with the
maintenance of existing flood control facilities, including debris
basins, retention/detention basins, levees, and channels that: (i) Were
previously authorized by the Corps by individual permit, general
permit, or 33 CFR 330.3, or did not require a permit at the time they
were constructed, or (ii) were constructed by the Corps and transferred
to a non-Federal sponsor for operation and maintenance. Activities
authorized by this NWP are limited to those resulting from maintenance
activities that are conducted within the ``maintenance baseline,'' as
described in the definition below. Discharges of dredged or fill
materials associated with maintenance activities in flood control
facilities in any watercourse that have previously been determined to
be within the maintenance baseline are authorized under this NWP. To
the extent that a Corps permit is required, this NWP authorizes the
removal of vegetation from levees associated with the flood control
project. This NWP does not authorize the removal of sediment and
associated vegetation from natural water courses except when these
activities have been included in the maintenance baseline. All dredged
material must be placed in an upland site or an authorized disposal
site in waters of the United States, and proper siltation controls must
be used.
Maintenance Baseline: The maintenance baseline is a description of
the physical characteristics (e.g., depth, width, length, location,
configuration, or design flood capacity, etc.) of a flood control
project within which maintenance activities are normally authorized by
NWP 31, subject to any case-specific conditions required by the
district engineer. The district engineer will approve the maintenance
baseline 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
[[Page 9196]]
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 30). The pre-construction notification
may be for activity-specific maintenance or for maintenance of the
entire flood control facility by submitting a five-year (or less)
maintenance plan. The pre-construction notification must include a
description of the maintenance baseline and the dredged material
disposal site. (Sections 10 and 404)
32. Completed Enforcement Actions. Any structure, work, or
discharge of dredged or fill material remaining in place or undertaken
for mitigation, restoration, or environmental benefit in compliance
with either:
(i) The terms of a final written Corps non-judicial settlement
agreement resolving a violation of Section 404 of the Clean Water Act
and/or Section 10 of the Rivers and Harbors Act of 1899; or the terms
of an EPA 309(a) order on consent resolving a violation of Section 404
of the Clean Water Act, provided that:
(a) The unauthorized activity affected no more than 5 acres of non-
tidal waters or 1 acre of tidal waters;
(b) The settlement agreement provides for environmental benefits,
to an equal or greater degree, than the environmental detriments caused
by the unauthorized activity that is authorized by this NWP; and
(c) The district engineer issues a verification letter authorizing
the activity subject to the terms and conditions of this NWP and the
settlement agreement, including a specified completion date; or
(ii) The terms of a final Federal court decision, consent decree,
or settlement agreement resulting from an enforcement action brought by
the United States under Section 404 of the Clean Water Act and/or
Section 10 of the Rivers and Harbors Act of 1899; or
(iii) The terms of a final court decision, consent decree,
settlement agreement, or non-judicial settlement agreement resulting
from a natural resource damage claim brought by a trustee or trustees
for natural resources (as defined by the National Contingency Plan at
40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107
of the Comprehensive Environmental Response, Compensation and Liability
Act, Section 312 of the National Marine Sanctuaries Act, Section 1002
of the Oil Pollution Act of 1990, or the Park System Resource
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is
required.
Compliance is a condition of the NWP itself. Any authorization
under this NWP is automatically revoked if the permittee does not
comply with the terms of this NWP or the terms of the court decision,
consent decree, or judicial/non-judicial settlement agreement. This NWP
does not apply to any activities occurring after the date of the
decision, decree, or agreement that are not for the purpose of
mitigation, restoration, or environmental benefit. Before reaching any
settlement agreement, the Corps will ensure compliance with the
provisions of 33 CFR part 326 and 33 CFR 330.6(d)(2) and (e). (Sections
10 and 404)
33. Temporary Construction, Access, and Dewatering. Temporary
structures, work, and discharges, including cofferdams, necessary for
construction activities or access fills or dewatering of construction
sites, provided that the associated primary activity is authorized by
the Corps of Engineers or the U.S. Coast Guard. This NWP also
authorizes temporary structures, work, and discharges, including
cofferdams, necessary for construction activities not otherwise subject
to the Corps or U.S. Coast Guard permit requirements. Appropriate
measures must be taken to maintain near normal downstream flows and to
minimize flooding. Fill must consist of materials, and be placed in a
manner, that will not be eroded by expected high flows. The use of
dredged material may be allowed if the district engineer determines
that it will not cause more than minimal adverse effects on aquatic
resources. Following completion of construction, temporary fill must be
entirely removed to upland areas, dredged material must be returned to
its original location, and the affected areas must be restored to pre-
construction elevations. The affected areas must also be revegetated,
as appropriate. This permit does not authorize the use of cofferdams to
dewater wetlands or other aquatic areas to change their use. Structures
left in place after construction is completed require a 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 30). 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 30.) (Section
404)
35. Maintenance Dredging of Existing Basins. Excavation and removal
of accumulated sediment for maintenance of existing marina basins,
access channels to marinas or boat slips, and boat slips to previously
authorized depths or controlling depths for ingress/egress, whichever
is less, provided the dredged material is deposited at an upland site
and proper siltation controls are used. (Section 10)
36. Boat Ramps. Activities required for the construction of boat
ramps, provided the activity meets all of the following criteria:
(a) The discharge into waters of the United States does not exceed
50 cubic yards of concrete, rock, crushed stone or gravel into forms,
or in the form of pre-cast concrete planks or slabs, unless the
district engineer waives the 50 cubic yard limit by making a written
determination concluding that the discharge will result in minimal
adverse effects;
[[Page 9197]]
(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 the upland; and,
(e) No material is placed in special aquatic sites, including
wetlands.
The use of unsuitable material that is structurally unstable is not
authorized. If dredging in navigable waters of the United States is
necessary to provide access to the boat ramp, the dredging may be
authorized by another NWP, a regional general permit, or an individual
permit.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The discharge into waters of the United States exceeds 50 cubic
yards, or (2) the boat ramp exceeds 20 feet in width. (See general
condition 30.) (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 30). (Sections 10 and 404)
38. Cleanup of Hazardous and Toxic Waste. Specific activities
required to effect the containment, stabilization, or removal of
hazardous or toxic waste materials that are performed, ordered, or
sponsored by a government agency with established legal or regulatory
authority. Court ordered remedial action plans or related settlements
are also authorized by this NWP. This NWP does not authorize the
establishment of new disposal sites or the expansion of existing sites
used for the disposal of hazardous or toxic waste.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 30.) (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, new ski areas, or oil and gas wells is not authorized by
this NWP.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States, including the loss of no more
than 300 linear feet of stream bed, unless for intermittent and
ephemeral stream beds 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 30.) (Sections 10 and 404)
40. Agricultural Activities. Discharges of dredged or fill material
into non-tidal waters of the United States for agricultural activities,
including the construction of building pads for farm buildings.
Authorized activities include the installation, placement, or
construction of drainage tiles, ditches, or levees; mechanized land
clearing; land leveling; the relocation of existing serviceable
drainage ditches constructed in waters of the United States; and
similar activities.
This NWP also authorizes the construction of farm ponds in non-
tidal waters of the United States, excluding perennial streams,
provided the farm pond is used solely for agricultural purposes. This
NWP does not authorize the construction of aquaculture ponds.
This NWP also authorizes discharges of dredged or fill material
into non-tidal waters of the United States to relocate existing
serviceable drainage ditches constructed in non-tidal streams.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States, 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 30.) (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
[[Page 9198]]
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 30.) (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 30.) (Section 404)
43. Stormwater Management Facilities. Discharges of dredged or fill
material into non-tidal waters of the United States for the
construction and maintenance of stormwater management facilities,
including the excavation of stormwater ponds/facilities, detention
basins, and retention basins; the installation and maintenance of water
control structures, outfall structures and emergency spillways; low
impact development stormwater features; and the maintenance dredging of
existing stormwater management ponds/facilities and detention and
retention basins.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States, including the loss of no more
than 300 linear feet of stream bed, unless for intermittent and
ephemeral stream beds 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 30.) 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 30.) 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.
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 30) 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
[[Page 9199]]
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 30.) (Section 404)
47. [Reserved]
48. Existing 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 the continued operation and/or expansion of existing
commercial shellfish aquaculture operations, including the installation
of buoys, floats, racks, trays, nets, lines, tubes, containers, and
other structures. This NWP also authorizes discharges of dredged or
fill material necessary for shellfish seeding, rearing, cultivating,
transplanting, and harvesting activities. Rafts and other floating
structures must be securely anchored and clearly marked. This NWP does
not authorize:
(a) The cultivation of species not previously cultivated in the
waterbody or of an aquatic nuisance species as defined in the Non-
Indigenous Aquatic Nuisance Prevention and Control Act of 1990; or,
(b) Attendant features such as docks, piers, boat ramps,
stockpiles, staging areas, or the deposition of shell material back
into waters of the United States as waste.
This NWP does not authorize new commercial shellfish aquaculture
operations, except for expansions of existing operations.
Notification: The permittee must submit a pre-construction
notification to the district engineer if: (1) The project area is
greater than 100 acres; or (2) there is any reconfiguration of the
aquaculture activity, such as relocating existing operations into
portions of the project area not previously used for aquaculture
activities; or (3) there is a change in culture methods (e.g., from
bottom culture to off-bottom culture); or (4) dredge harvesting,
tilling, or harrowing is conducted in areas inhabited by submerged
aquatic vegetation; or, (5) there is an expansion to the project area.
(See general condition 30.)
In addition to the information required by paragraph (b) of general
condition 30, the pre-construction notification must also include the
following information: (a) The size of the project area, plus any
proposed expansion (in acres); (b) the corner latitude and longitude
coordinates of the project area and the expansion area; (c) a brief
description of the culture and harvest method(s), including plans for
rotating production within a project area; (d) the name(s) of the
cultivated species; (e) whether canopy predator nets are being used;
and, (f) a description of the composition of the substrate material and
vegetation. (Sections 10 and 404)
Note 1: The permittee should notify the applicable U.S. Coast
Guard office regarding the project.
Note 2: 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 (DOI) Office of Surface Mining Reclamation and
Enforcement (OSMRE), 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 30.) (Sections 10 and 404)
50. Underground Coal Mining Activities. Discharges of dredged or
fill material into non-tidal waters of the United States associated
with underground coal mining and reclamation operations provided the
activities are authorized, or are currently being processed as part of
an integrated permit processing procedure, by the Department of
Interior (DOI), Office of Surface Mining Reclamation and Enforcement
(OSMRE), 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 30.) 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.
[[Page 9200]]
A. Land-Based Renewable Energy Generation Facilities. 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. Such facilities include infrastructure to
collect solar (concentrating solar power and photovoltaic), wind,
biomass, or geothermal energy, as well as utility lines to transfer the
energy to land-based distribution facilities. Attendant features may
include, but are not limited to roads, parking lots, utility lines, and
storm water management 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 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 30.) (Sections 10 and 404)
B. Water-Based Renewable Energy Generation Pilot Projects.
Structures and work in navigable waters of the United States and
discharges of dredged or fill material into waters of the United States
for the construction, expansion, 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, stormwater
management facilities, utility lines, including utility lines to
transfer the energy to land-based distribution facilities.
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.
For each single and complete project, no more than 10 generation
units (e.g., wind turbines) 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 part 322.5(l)(2).
Structures may not be placed in established danger zones or
restricted areas as designated in 33 CFR part 334, shipping safety
fairways or traffic separation schemes established by the U.S. Coast
Guard (see 33 CFR part 322.5(l)(1)), or EPA or Corps designated open
water 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 30.) (Sections 10 and 404)
Note 1: 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 2: Copies of the NWP verification will be sent by the
Corps to the National Oceanic and Atmospheric Administration (NOAA),
National Ocean Service (NOS), for charting the project and
associated utility line(s) to protect navigation.
C. Nationwide Permit General Conditions
Note: To qualify for NWP authorization, the prospective
permittee must comply with the following general conditions, as
appropriate, in addition to any regional or case-specific conditions
imposed by the division engineer or district engineer. Prospective
permittees should contact the appropriate Corps district office to
determine if regional conditions have been imposed on an NWP.
Prospective permittees should also contact the appropriate Corps
district office to determine the status of Clean Water Act Section
401 water quality certification and/or Coastal Zone Management Act
consistency for an NWP. 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. Culverts placed in streams must be installed to maintain
low flow conditions. Bottomless culverts must be used where
practicable. For an activity where it is not practicable to use a
bottomless culvert, such as circumstances where sub-grade instability
would make it unsafe to use a bottomless culvert, the bottom of the
culvert must be below the grade of the stream bed unless the stream bed
consists of bedrock or boulders.
3. Spawning Areas. Activities in spawning areas during spawning
seasons must be avoided to the maximum extent practicable. Activities
that result in the physical destruction (e.g., through excavation,
fill, or downstream smothering by substantial turbidity) of an
important spawning area are not authorized.
4. Migratory Bird Breeding Areas. Activities in waters of the
United States that serve as breeding areas for migratory birds must be
avoided to the maximum extent practicable.
5. Shellfish Beds. No activity may occur in areas of concentrated
shellfish populations, unless the activity is directly related to a
shellfish harvesting activity authorized by NWPs 4 and 48.
6. Suitable Material. No activity may use unsuitable material
(e.g., trash, debris, car bodies, asphalt, etc.). Material used for
construction or discharged must be free from toxic pollutants in toxic
amounts (see Section 307 of the Clean Water Act).
7. Water Supply Intakes. No activity may occur in the proximity of
a public water supply intake, except where the activity is for the
repair or improvement 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
[[Page 9201]]
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. 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 this office of what you have
found, and to the maximum extent practicable, stop activities that
would adversely affect those remains and artifacts until the required
coordination has been completed. We 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.
15. Proper Maintenance. Any authorized structure or fill shall be
properly maintained, including maintenance to ensure public safety.
16. 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.
17. 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).
18. 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.
19. 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.
(c) Non-Federal permittees shall notify the district engineer if
any listed species or designated critical habitat might be affected or
is in the vicinity of the project, or if the project is located in
designated critical habitat, and shall not begin work on the activity
until notified by the district engineer that the requirements of the
ESA have been satisfied and that the activity is authorized. For
activities that might affect Federally-listed endangered or threatened
species or designated critical habitat, the pre-construction
notification must include the name(s) of the endangered or threatened
species that may be affected by the proposed work or that utilize the
designated critical habitat that may be affected by the proposed work.
The district engineer will determine whether the proposed activity
``may affect'' or will have ``no effect'' to listed species and
designated critical habitat and will notify the non-Federal applicant
of the Corps' determination within 45 days of receipt of a complete
pre-construction notification. In cases where the non-Federal applicant
has identified listed species or critical habitat that might be
affected or is in the vicinity of the project, and has so notified the
Corps, the applicant shall not begin work until the Corps has provided
notification the proposed activities will have ``no effect'' on listed
species or critical habitat, or until Section 7 consultation has been
completed.
(d) As a result of formal or informal consultation with the FWS or
NMFS the district engineer may add species-specific regional endangered
species conditions to the NWPs.
(e) Authorization of an activity by a NWP does not authorize the
``take'' of a threatened or endangered species as defined under the
ESA. In the absence of separate authorization (e.g., an ESA Section 10
Permit, a Biological Opinion with ``incidental take'' provisions, etc.)
from the U.S. FWS or the NMFS, 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, 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.
20. Historic Properties. (a) In cases where the district engineer
determines that the activity may affect properties listed, or eligible
for listing, in the
[[Page 9202]]
National Register of Historic Places, the activity is not authorized,
until the requirements of Section 106 of the National Historic
Preservation Act (NHPA) have been satisfied.
(b) Federal permittees should follow their own procedures for
complying with the requirements of Section 106 of the National Historic
Preservation Act. Federal permittees must provide the district engineer
with the appropriate documentation to demonstrate compliance with those
requirements.
(c) Non-Federal permittees must submit a pre-construction
notification to the district engineer if the authorized activity may
have the potential to cause effects to any historic properties listed,
determined to be eligible for listing on, or potentially eligible for
listing on the National Register of Historic Places, including
previously unidentified properties. For such activities, the pre-
construction notification must state which historic properties may be
affected by the proposed work or include a vicinity map indicating the
location of the historic properties or the potential for the presence
of historic properties. Assistance regarding information on the
location of or potential for the presence of historic resources can be
sought from the State 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.
(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. Designated Critical Resource Waters. Critical resource waters
include, NOAA-managed marine sanctuaries and marine monuments, National
Estuarine Research Reserves, and state designated outstanding national
resource waters. 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 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, A, and B 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 30, 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.
22. Mitigation. The district engineer will consider the following
factors when determining appropriate and practicable mitigation
necessary to ensure that adverse effects on the aquatic environment are
minimal:
(a) The activity must be designed and constructed to avoid and
minimize adverse effects, both temporary and permanent, to waters of
the United States to the maximum extent practicable at the project site
(i.e., on site).
(b) Mitigation in all its forms (avoiding, minimizing, rectifying,
reducing, or compensating) will be required to the extent necessary to
ensure that the adverse effects to the aquatic environment are minimal.
(c) Compensatory mitigation at a minimum one-for-one ratio will be
required for all wetland losses that exceed \1/10\-acre and require
pre-construction notification, unless the district engineer determines
in writing that some other form of mitigation would be more
environmentally appropriate and provides a project-specific waiver of
this requirement. For wetland losses of \1/10\-acre or less that
require pre-construction notification, the district engineer may
determine on a case-by-case basis that compensatory mitigation is
required to ensure that the activity results in minimal adverse effects
on the aquatic environment. Since the likelihood of success is greater
and the impacts to potentially valuable uplands are reduced, wetland
restoration should be the first compensatory mitigation option
considered.
(d) For losses of streams or other open waters that require pre-
construction notification, the district engineer may require
compensatory mitigation, such as stream restoration, to ensure that the
activity results in minimal adverse effects on the aquatic environment.
(e) Compensatory mitigation will not be used to increase the
acreage losses allowed by the acreage limits of the NWPs. For example,
if an NWP has an acreage limit of \1/2\-acre, it cannot be used to
authorize any project resulting in the loss of greater than \1/2\-acre
of waters of the United States, even if
[[Page 9203]]
compensatory mitigation is provided that replaces or restores some of
the lost waters. However, compensatory mitigation can and should be
used, as necessary, to ensure that a project already meeting the
established acreage limits also satisfies the minimal impact
requirement associated with the NWPs.
(f) Compensatory mitigation plans for projects in or near streams
or other open waters will normally include a requirement for the
establishment, maintenance, and legal protection (e.g., conservation
easements) of riparian areas next to open waters. In some cases,
riparian areas may be the only compensatory mitigation required.
Riparian areas should consist of native species. The width of the
required riparian area will address documented water quality or aquatic
habitat loss concerns. Normally, the riparian area will be 25 to 50
feet wide on each side of the stream, but the district engineer may
require slightly wider riparian areas to address documented water
quality or habitat loss concerns. Where both wetlands and open waters
exist on the project site, the district engineer will determine the
appropriate compensatory mitigation (e.g., riparian areas and/or
wetlands compensation) based on what is best for the aquatic
environment on a watershed basis. In cases where riparian areas are
determined to be the most appropriate form of compensatory mitigation,
the district engineer may waive or reduce the requirement to provide
wetland 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, performance, and long-term
management of the compensatory mitigation project.
(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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. Transfer of Nationwide Permit Verifications. If the permittee
sells the property associated with a nationwide permit verification,
the permittee may transfer the nationwide permit verification to the
new owner by submitting a letter to the appropriate Corps district
office to validate the transfer. A copy of the nationwide permit
verification must be attached to the letter, and the letter must
contain the following statement and signature:
``When the structures or work authorized by this nationwide permit are
still in existence at the time the property is transferred, the terms
and conditions of this nationwide permit, including any special
conditions, will continue to be binding on the new owner(s) of the
property. To validate the transfer of this nationwide permit and the
associated liabilities associated with compliance with its terms and
conditions, have the transferee sign and date below.''
-----------------------------------------------------------------------
(Transferee)
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(Date)
29. 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 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 or specific
conditions;
(b) A statement that any required compensatory mitigation was
completed in accordance with the permit conditions; and
(c) The signature of the permittee certifying the completion of the
work and mitigation.
30. Pre-Construction Notification. (a) Timing. Where required by
the terms of the NWP, the prospective permittee must notify the
district engineer by submitting a pre-construction notification (PCN)
as early as possible. The district engineer must determine if the PCN
is complete within 30 calendar days of the date of receipt and, as a
general rule, will request additional information necessary to make the
PCN complete only once. However, if the prospective permittee does not
provide all of the requested information, then the district engineer
will notify the prospective permittee that the PCN is still incomplete
and the PCN review process will not commence until all of the requested
information has been received by the district engineer. The
[[Page 9204]]
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 19 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 cannot begin the activity
until the district engineer issues the waiver. If the district or
division engineer notifies the permittee in writing that an individual
permit is required within 45 calendar days of receipt of a complete
PCN, the permittee cannot begin the activity until an individual permit
has been obtained. Subsequently, the permittee's right to proceed under
the NWP may be modified, suspended, or revoked only in accordance with
the procedure set forth in 33 CFR 330.5(d)(2).
(b) Contents of Pre-Construction Notification: The PCN must be in
writing and include the following information:
(1) Name, address and telephone numbers of the prospective
permittee;
(2) Location of the proposed project;
(3) A description of the proposed project; the project's purpose;
direct and indirect adverse environmental effects the project would
cause; any other NWP(s), regional general permit(s), or individual
permit(s) used or intended to be used to authorize any part of the
proposed project or any related activity. The description should be
sufficiently detailed to allow the district engineer to determine that
the adverse effects of the project will be minimal and to determine the
need for compensatory mitigation. Sketches should be provided when
necessary to show that the activity complies with the terms of the NWP.
(Sketches usually clarify the project and when provided results in a
quicker decision.);
(4) The PCN must include a delineation of special aquatic sites and
other waters of the United States on the project site. Wetland
delineations must be prepared in accordance with the current method
required by the Corps. The permittee may ask the Corps to delineate the
special aquatic sites and other waters of the United States, but there
may be a delay if the Corps does the delineation, especially if the
project site is large or contains many waters of the United States.
Furthermore, the 45-day period will not start until the delineation has
been submitted to or completed by the Corps, 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. 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 result in the loss of greater than
\1/2\-acre of waters of the United States, NWP 21, 29, 39, 40, 42, 43,
44, 50, A, and B activities that will result in the loss of greater
than 1,000 linear feet of intermittent and ephemeral stream bed, and
all NWP 48 activities requiring pre-construction notification, the
district engineer will immediately provide (e.g., via facsimile
transmission, overnight mail, or other expeditious manner) a copy of
the PCN to the appropriate Federal or state offices (U.S. FWS, state
natural resource or water quality agency, EPA, State Historic
Preservation Officer (SHPO) or Tribal Historic Preservation Office
(THPO), and, if appropriate, the NMFS). With the exception of NWP 37,
these agencies will then have 10 calendar days from the date the
material is transmitted to telephone or fax the district engineer
notice that they intend to provide substantive, site-specific comments.
If so contacted by an agency, the district engineer will wait an
additional 15 calendar days before making a decision on the pre-
construction notification. The district engineer will fully consider
agency comments received within the specified time frame, but will
provide no response to the resource agency, except as provided below.
The district engineer will indicate in the administrative record
associated with each pre-construction notification that the resource
agencies' concerns were considered. For NWP 37, the emergency watershed
protection and rehabilitation activity may proceed immediately in cases
where there is an unacceptable hazard to life or a significant loss of
property or economic hardship will occur. The district engineer will
consider any comments received to decide whether the NWP 37
authorization should be modified, suspended, or revoked in accordance
with the procedures at 33 CFR 330.5.
(3) In cases 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
[[Page 9205]]
Magnuson-Stevens Fishery Conservation and Management Act.
(4) Applicants are encouraged to provide the Corps multiple copies
of pre-construction notifications to expedite agency coordination.
(e) District Engineer's Decision: (1) In reviewing the PCN for the
proposed activity, the district engineer will determine whether the
activity authorized by the NWP will result in more than minimal
individual or cumulative adverse environmental effects or may be
contrary to the public interest. If 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, A or B, 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 functions provided by
the aquatic resources that will be affected by the NWP activity, the
degree or magnitude the aquatic resources perform those functions, the
extent that aquatic resource functions will be lost as a result of the
NWP activity (e.g., partial or complete loss), the duration of the
adverse effects (temporary or permanent), the importance of the aquatic
resource functions to the region (e.g., watershed or ecoregion), and
mitigation required by the district engineer. If an appropriate
functional 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 work are minimal. The compensatory mitigation proposal may be
either conceptual or detailed. If the district engineer determines that
the activity complies with the terms and conditions of the NWP and that
the adverse effects on the aquatic environment are minimal, after
considering mitigation, the district engineer will notify the permittee
and include any conditions the district engineer deems necessary. The
district engineer must approve any compensatory mitigation proposal
before the permittee commences work. If the prospective permittee
elects to submit a compensatory mitigation plan with the PCN, the
district engineer will expeditiously review the proposed compensatory
mitigation plan. The district engineer must review the plan within 45
calendar days of receiving a complete PCN and determine whether the
proposed mitigation would ensure no more than minimal adverse effects
on the aquatic environment. If the net adverse effects of the project
on the aquatic environment (after consideration of the compensatory
mitigation proposal) are determined by the district engineer to be
minimal, the district engineer will provide a timely written response
to the applicant. The response will state that the project can proceed
under the terms and conditions of the NWP.
(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: (1) That the project does not qualify
for authorization under the NWP and instruct the applicant on the
procedures to seek authorization under an individual permit; (2) that
the project is authorized under the NWP subject to the applicant's
submission of a mitigation plan that would reduce the adverse effects
on the aquatic environment to the minimal level; or (3) that the
project is authorized under the NWP with specific modifications or
conditions. Where the district engineer determines that mitigation is
required to ensure no more than minimal adverse effects occur to the
aquatic environment, the activity will be authorized within the 45-day
PCN period. The authorization will include the necessary conceptual or
specific mitigation or a requirement that the applicant submit a
mitigation plan that would reduce the adverse effects on the aquatic
environment to the minimal level. When mitigation is required, no work
in waters of the United States may occur until the district engineer
has approved a specific mitigation plan.
D. Further Information
1. District Engineers have authority to determine if an activity
complies with the terms and conditions of an NWP.
2. NWPs do not obviate the need to obtain other Federal, state, or
local permits, approvals, or authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of
others.
5. NWPs do not authorize interference with any existing or proposed
Federal project.
E. Definitions
Best management practices (BMPs): Policies, practices, procedures,
or structures implemented to mitigate the adverse environmental effects
on surface water quality resulting from development. BMPs are
categorized as structural or non-structural.
Compensatory mitigation: The restoration (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.
Discharge: The term ``discharge'' means any discharge of dredged or
fill material and any activity that causes or results in such a
discharge.
Enhancement: The manipulation of the physical, chemical, or
biological characteristics of an aquatic resource to heighten,
intensify, or improve a specific aquatic resource function(s).
Enhancement results in the gain of selected aquatic resource
function(s), but may also lead to a decline in other aquatic resource
function(s). Enhancement does not result in a gain in aquatic resource
area.
Ephemeral stream: An ephemeral stream has flowing water only
during, and for a short duration after, precipitation events in a
typical year. Ephemeral stream beds are located above the water table
year-round. Groundwater is not a source of water for the stream. Runoff
from rainfall is the primary source of water for stream flow.
Establishment (creation): The manipulation of the physical,
chemical, or biological characteristics present to develop an aquatic
resource that did not previously exist at an upland site. Establishment
results in a gain in aquatic resource area.
[[Page 9206]]
High Tide Line: The line of intersection of the land with the
water's surface at the maximum height reached by a rising tide. The
high tide line may be determined, in the absence of actual data, by a
line of oil or scum along shore objects, a more or less continuous
deposit of fine shell or debris on the foreshore or berm, other
physical markings or characteristics, vegetation lines, tidal gages, or
other suitable means that delineate the general height reached by a
rising tide. The line encompasses spring high tides and other high
tides that occur with periodic frequency but does not include storm
surges in which there is a departure from the normal or predicted reach
of the tide due to the piling up of water against a coast by strong
winds such as those accompanying a hurricane or other intense storm.
Historic Property: Any prehistoric or historic district, site
(including archaeological site), building, structure, or other object
included in, or eligible for inclusion in, the National Register of
Historic Places maintained by the Secretary of the Interior. This term
includes artifacts, records, and remains that are related to and
located within such properties. The term includes properties of
traditional religious and cultural importance to an Indian tribe or
Native Hawaiian organization and that meet the National Register
criteria (36 CFR part 60).
Independent utility: A test to determine what constitutes a single
and complete non-linear project in the Corps regulatory program. A
project is considered to have independent utility if it would be
constructed absent the construction of other projects in the project
area. Portions of a multi-phase project that depend upon other phases
of the project do not have independent utility. Phases of a project
that would be constructed even if the other phases were not built can
be considered as separate single and complete projects with independent
utility.
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.
[[Page 9207]]
Riparian areas: Riparian areas are lands adjacent to streams,
lakes, and estuarine-marine shorelines. Riparian areas are transitional
between terrestrial and aquatic ecosystems, through which surface and
subsurface hydrology connects waterbodies with their adjacent uplands.
Riparian areas provide a variety of ecological functions and services
and help improve or maintain local water quality. (See general
condition 20.)
Shellfish seeding: The placement of shellfish seed and/or suitable
substrate to increase shellfish production. Shellfish seed consists of
immature individual shellfish or individual shellfish attached to
shells or shell fragments (i.e., spat on shell). Suitable substrate may
consist of shellfish shells, shell fragments, or other appropriate
materials placed into waters for shellfish habitat.
Single and complete linear project: For linear projects, the term
``single and complete project'' is defined as the total project
proposed or accomplished by one owner/developer or partnership or other
association of owners/developers and 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 waterbody several times
at separate and distant locations, each crossing is considered a single
and complete project. However, individual channels in a braided stream
or river, or individual arms of a large, irregularly shaped wetland or
lake, etc., are not separate waterbodies, and crossings of such
features cannot be considered separately.
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'').
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 that, during a year with
normal patterns of precipitation, has water flowing or standing above
ground to the extent that an ordinary high water mark (OHWM) or other
indicators of jurisdiction can be determined, as well as any wetland
area (see 33 CFR 328.3(b)). If a jurisdictional wetland is adjacent--
meaning bordering, contiguous, or neighboring--to a jurisdictional
waterbody displaying an OHWM or other indicators of jurisdiction, that
waterbody and its adjacent wetlands are considered together as a single
aquatic unit (see 33 CFR 328.4(c)(2)). Examples of ``waterbodies''
include streams, rivers, lakes, ponds, and wetlands.
[FR Doc. 2011-3371 Filed 2-15-11; 8:45 am]
BILLING CODE 3720-58-P