Thursday,
August 9, 2001
Part IV
Department of
Defense
Department of the Army, Corps of
Engineers
Proposal To Reissue and Modify
Nationwide Permits; Notice
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Federal Register/Vol. 66, No. 154/Thursday, August 9, 2001/Notices
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Proposal To Reissue and Modify
Nationwide Permits; Notice '
AGENCY: Army Corps of Engineers, DoD.
ACTION: Notice of intent and request for
comments.
SUMMARY: The Corps of Engineers is
soliciting comments for the reissuance
of the existing Nationwide Permits
(NWPs), General Conditions, and
definitions with some modifications.
The Corps of Engineers (Corps) reissued
NWPs on December 13,1996, Federal
Register notice (61 FR 65874-65922).
These NWPs will expire February 11,
2002, except as discussed below.
In the December 13,1996, issue of the
Federal Register, the Corps announced
its intention to replace NWP 26 with
activity-specific NWPs before the
expiration date of NWP 26. In the March
9,2000, Federal Register notice (65 FR
12818-12899), the Corps published five
new NWPs, modified six existing NWPs,
modified six General Conditions, and
added two new General Conditions to
replace NWP 26. The five new NWPs
(i.e., 39,41, 42, 43, 44) and six modified
NWPs (i.e., NWPs 3, 7.12,14, 27,land
40) will expire five years from their
effective date of June 7, 2000. hi order
to reduce the confusion regarding the
expiration of the NWPs and the
administrative burden, it is the Corps
intent to reissue all NWPs and General
Conditions contained within this
Notice, including those not scheduled to
expire on February 11,2002. Thus, all
issued, reissued and modified NWPs,
and General Conditions contained
within this notice will become effective
and expire on the same date. The
reissuance process starts with today's
publication of the proposed NWPs in
the Federal Register and concurrent
release of public notices by Corps
District offices for a 45-day comment
period.
DATES: Comments on the reissuance of
the proposed NWPs must be received by
September 24,2001. The public hearing
will be held at 1 p.m. on September 12,
2001.
ADDRESSES: Send comments to
HQUSACE, ATTN: CECW-OR. 441 "G"
Street, NW, Washington, DC 20314-
1000. The public hearing will be held at
the GAO Building. 441 "G" Street, NW,
Washington, DC 20314-1000, 7th floor
auditorium.
FOR FURTHER INFORMATION CONTACT: Mr.
Rich White or Mr. Sam Collinson, at
(202) 761-4599 or access the U.S. Army
Corps of Engineers Regulatory Home
Page at: http//:www.usace.army.mil/
inet/functions/cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION: In regard
to the public hearing referenced, the
public should enter on the "G" Street
side of the building. All attendees are
required to show photo identification
and must be escorted to the auditorium
by Corps personnel. All attendees ,
arriving between one-half hour before
and one-half hour after 1 p.m. will be
escorted to the hearing. Those arriving
later than the allotted time will be
unable to enter the building.
The public is invited to provide
comments on this notice to reissue and
modify NWPs to the address below. The
Corps is also preparing a voluntary
Programmatic Environmental Impact
Statement (PEIS) on the NWP Program.
On-July 31, 2001, the PEIS will be
announced in the Federal Register and
available on the Corps Institute for
Water Resources (IWR) web page at
http://www.iwr. usace.army.mil/iwr/
Regulatory/regulintro.htm. Comment on
the PEIS should be sent to IWR as
indicated on the IWR web page or the
Federal Register notice.
Background
Section 404(e) of the Clean Water Act
(CWA) is 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 (US).
Such activities authorized by NWPs
must be similar in nature, cause only
minimal adverse environmental effects
when performed separately, and have
only minimal cumulative adverse effect
on the aquatic environment. The
Nationwide Permit (NWP) Program is
designed to provide timely
authorization for the regulated public
while concurrently protecting the
Nation's aquatic resources.
The protection and restoration of the
aquatic environment is an integral part
of the Corps mission and a primary
focus of the Regulatory Program. The
NWP Program allows the Corps to
maintain protection of the aquatic
environment, while allowing the Corps
to focus limited resources towards more
extensive evaluation of projects with the
C" ntial for causing environmentally
aging adverse effects. Impacts to the
aquatic environment may also receive
additional protection through regional
conditions, case-specific special
conditions, and case-specific
discretionary authority to require
standard Individual Permits (i.e. for
higher quality aquatic resource). General
Permits, including NWPs, protect the
aquatic environment because permit
applicants will reduce project impacts
to meet the restrictive requirements of
the general permit. The NWP Program
allows the Corps to authorize activities
with minimal adverse environmental
impacts .in a timely manner and
maintain protection of the aquatic
environment.
This proposal to reissue existing
NWPs is a reflection of the Corps
unequivocal commitment to its
environmental protection mission and
to aquatic resource protection. For
example, twenty-one of the NWPs
contain provisions within the terms and
conditions that establishes a threshold
level requiring "notification" to the
Corps before a regulated activity is
authorized to commence. This provision
gives the Corps the opportunity to
thoroughly evaluate NWP
authorizations to ensure that the activity
will have no more than a minimal
adverse effect on the aquatic
environment, individually and
cumulatively. This "notification"
includes submitting to the Corps an
application containing detailed or
conceptual descriptions of proposed
activities, and the impacts to aquatic
systems. A "notification" to the Corps
may be required for filling aquatic areas,
such as stream beds (whether perennial,
intermittent, or ephemeral) and
wetlands. The Corps reviews each
"notification" and this case-by-case
review typically results in case specific
conditions requiring mitigation to
ensure that impacts to the'aquatic
environment are no more than minimal.
It may also result in the Corps asserting
discretionary authority to require an
Individual Permit if the Corps
determines, based on the information
provided in the notification, that
adverse impacts will be more than
minimal, either individually or
cumulatively. Excavation in waters of
the US requires a permit (and may
require "notification") if the activity
involves a discharge of dredged material
resulting in more than "incidental
fallback" (66 FR, 4550-4575).
In addition to the "notification"
provision, regional conditions may be
developed by District Engineers to take
into account regional differences in
aquatic resource functions and values
across the country and to put
mechanisms into place to protect them.
After identifying the geographic extent
of "higher" quality aquatic systems,
District Engineers can either change
"notification" thresholds, or require
"notification" for all activities within a
particular watershed or waterbody to
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42071
ensure that NWP use and authorization
only occurs for activities with minimal
adverse effects, individually and
cumulatively. Furthermore, Corps
Division Engineers can suspend or
revoke the use of certain NWPs within
the bounds of high value aquatic
systems if the use of NWPs would result
in more than minimal adverse effects to
the aquatic environment, individually
or cumulatively.
Although minimal adverse effects are
anticipated for the NWP Program, the
use of NWPs may still affect the aquatic
environment. Therefore, General
Condition 19, "Mitigation", describes
how District Engineers will require
compensatory mitigation with other
aquatic resources or vegetated buffers in
order to offset the authorized impacts to
the extent necessary to ensure minimal
adverse effects on the aquatic
environment. The purpose of this
condition is twofold; one, to maintain
national goals of no net loss of functions
and values, and two, to offset any
cumulative adverse effects to the aquatic
environment. The Corps has determined
that the NWP authorizations, along with
the ability to place regional conditions
or case-specific conditions, or require
Individual Permits as appropriate, will
not cause more than minimal individual
or cumulative adverse effects to waters
of the US. Compensatory mitigation can
be accomplished through the
restoration, creation, enhancement, and/
or preservation of aquatic resources
either by individual projects
constructed by the permittee, or the use
of mitigation banks, in lieu fee
programs, or other consolidated
mitigation efforts.
Vegetated Buffers
An important component of
compensatory mitigation is the
establishment and maintenance of
vegetated buffers adjacent to open and
flowing waters. Vegetated buffers
adjacent to open waters or streams may
consist of either uplands or wetlands,
both of which help protect and enhance
local water quality and aquatic habitat
features for a particular waterbody.
Vegetated buffers can be established by
maintaining an existing vegetated area
adjacent to open or flowing waters, or
by planting native trees, shrubs, and
herbaceous perennials in areas with
little existing perennial native
vegetation.
The use of vegetated buffers as
mitigation for NWP activities is
discussed in General Condition 19.
Vegetated buffers next to streams and
other open waters provide many of the
sgme functions that wetlands provide.
In fact, many vegetated buffers will be
wetlands. Due to their proximity to
open waters, vegetated buffers are more
effective at protecting open waters than
wetlands distant from those open
waters. The following is a list of the
functions provided by vegetated buffers
published in the July 21,1999, Federal
Register notice to reissue NWPs. In
general, vegetated buffers next to
streams and open waters provide the
following functions: (1) Reduce adverse
effects to water quality by removing
nutrients and pollutants from surface
runoff; (2) reduce concentrations of
nutrients and pollutants in subsurface
water that flows into streams and other
open waters; (3) moderate storm flows
to streams, which reduces downstream
flooding and degradation of aquatic
habitat; (4) stabilize soil (through plant
roots), which reduces erosion in the
vicinity of the open waterbody; (5)
provide shade to the waterbody, which
moderates water temperature changes
and provides a more stable aquatic
habitat for fish and other aquatic
organisms; (6) provide detritus, which is
a food source for many aquatic
organisms; (7) provide large woody
debris from riparian zones, which
furnishes cover and habitat for aquatic
organisms and may cause the formation
of pools in the stream channel; (8)
provide habitat to a wide variety of
aquatic and terrestrial species; (9) trap
sediments, thereby reducing
degradation of the substrate that
provides habitat for fish and other
aquatic organisms (e.g., some fish
species depend upon gravel stream beds
for spawning habitats); and (10) provide
corridors for movement and dispersal of
many species of wildlife. In addition,
vegetated buffers next to streams may
provide additional flood storage
capacity and groundwater recharge
functions.
The Corps statutory authority to
require vegetated buffers next to streams
and other open waters originates in the
goal of the CWA which is to restore and
maintain the chemical, physical and
biological integrity of Nation's waters.
This goal is stated in Section 101 of the
CWA and is applicable to all sections of
the CWA, including Section 404. The
establishment of vegetated buffers next
to streams and other open waters helps
maintain the chemical, physical, and
biological integrity of our waters. The
Corps believes that requiring vegetated
buffers along flowing streams and other
open waters is one of the most
important forms of compensatory
mitigation. Requiring the establishment
of vegetated buffers by the Corps, as
mitigation, is one of the best ways that
the Corps can ensure the CWA Section
101 goals are met. For all of these
reasons, the Corps is proposing to revise
General Condition 19 to allow a waiver
of this requirement of one-for-one
wetlands mitigation, in cases where the
Corps determines that some other form
of mitigation, such as establishment of
vegetated buffers, is more appropriate.
The Corps requests comments on this
proposed revision.
NEPA Compliance
The Corps recognizes that there has
been, and continues to be, substantial
interest by the public regarding the
potential environmental effects
associated with the implementation of
the Corps NWP Program. The Corps is
committed to ensuring that no more
than minimal adverse effects on the
aquatic environment, individually and
cumulatively, will occur and we will
continue to carefully evaluate potential
environmental effects of the program as
we move to reissue the NWPs. The
Corps has prepared Environmental
Assessments- (EA) for each issued or
reissued NWP in the past, including
those issued in 1996 and 2000. Those
EAs each resulted in a Finding of No
Significant Impact (FONSI). The Corps
will again prepare EAs for each
proposed reissuance of a NWP in this
proposal to determine whether an
Environmental Impact Statement (EIS)
should be prepared. These EAs will
consider the environmental effects of
each NWP from a national perspective
and each Corps District and Division
Engineer will supplement the EAs to
evaluate regional environmental effects.
Where more than minimal adverse
effects on the aquatic environment may
occur, Corps Division Engineers will
establish regional conditions to further
protect the aquatic environment and
ensure that any adverse effects will be
no more than minimal.
We are continuing to improve data
collection and monitoring efforts
, associated with the NWP Program. Our
efforts include accumulating
information on the verified uses of the
NWPs, acreage impacts, affected
resource types, the geographic location
of the activities, and the type of
mitigation provided. This information is
important, and was used as the Corps
made permitting and policy decisions
regarding the continued role of the
Corps NWP Program. The objective is to
ensure that the NWP Program continues
to authorize only those activities with
no more than minimal individual and
cumulative adverse effects on the
aquatic environment.
The Corps determined that
preparation of an EIS was not required,
in both 1996 and 2000, for issuing any
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Federal Register /Vol. 66, No. 154/Thursday, August 9, 2001/Notices
of the specific NWPs. In addition, the
Corps made a FONSI on June 23,1998,
for the NWP Program. This finding is
determined on the basis that the NWP
Program has limitations and procedures
that ensure the Corps authorizes only
those activities that have no more than
minimal adverse effects on the aquatic
environment, both individually and
cumulatively. This threshold (i.e. no
more than minimal adverse effects) is
lower than the threshold for requiring
an EIS (a copy of the FONSI is available
on our web page at http://
vnvw.usace.army.mil/inet/functions/cw/
cecwo/reg/mv98fons,htm).
The Corps is committed to ensuring
and demonstrating that the NWP
Program, as a whole, authorizes only
those activities that result in minimal
individual and cumulative adverse
effects on the aquatic environment.
Consistent with this commitment, in
March of 1999, the Corps began
preparation of a PEIS to evaluate
procedures and processes, provided
information on the overall
environmental impacts of the NWP
Program using available data from the
Corps databases, and evaluate how the
Corps uses NWPs, Regional General
Permits, Letters of Permission, or other
mechanisms to authorize projects. Thus,
environmental impacts, alternative
methods of operating the NWP Program,
as well as shifting authorizations that
are currently done under the NWP
Program to other permitting methods,
will be evaluated. The Corps recognizes
that the PEIS will provide information
useful to those commenting on the
proposed reissuance of the NWPs, and '
thus will make the draft PEIS available
for comment by July 31,2001, and will
provide for a 30 day overlap in the
comment periods of today's NWP
package and the draft PEIS. The draft
PEIS will be announced in the Federal
Register, and will be available on the
Corps Institute for Water Resources web
page AttpaVHwiv.iMT.usace.anny.nu7/
iwr/Regulatoiy/regulintrp.htm. We
anticipate final PEIS completion by
early 2002.
Executive Order 11988Floodplain
Management
The Corps believes that the NWP
Program, with its national, regional and
case-by-case limitations, procedures and
mitigation, fully complies with
Executive Order 11988. This includes
the "Floodplain Management
Guidelines for Implementing Executive
Order 11988" issued by the U.S. Water
Resources Council, and "Further Advice
on Executive Order 11988 Floodplain
Management" issued by the Interagency
Task Force on Floodplain Management.
"Further Advice on Executive Order
11988 Floodplain Management" states
that class review of repetitive actions
proposed in 100-year floodplains can be
conducted in full compliance with
Executive Order 11988. The Corps is
currently conducting a formal class
review of the NWPs and will summarize
the results of the review in the preamble
to the final rule.
Process for Reissuing the NWPs
The Corps is proposing to reissue all
NWPs, General Conditions, and
definitions with some modifications.
We are proposing to modify NWPs 14,
21, 27, 31, 37, 39,40, 42, and 43. In
addition, we are proposing to modify
General Conditions 4,~9,13,19, 21, 26,
and add a new General Condition 27.
The Corps reissued NWPs on
December 13,1996, with most of the
NWPs contained within that notice set
to expire February 11, 2002. On June 7,
2000, the Corps issued five new NWPs
to replace NWP 26, modified six
existing NWPs, modified six General
Conditions, and added two new General
Conditions. The five new and six
modified NWPs will expire five years
from their effective date of June 7, 2000.
In order to reduce the confusion
regarding when three separate sets of
NWPs expire, it is the Corps intent to
consolidate all issued, reissued and
modified NWPs, and General
Conditions contained within this notice
will become effective and expire on the
same date.
The reissuance process starts with
today's publication of the proposed
NWPs in the Federal Register and
concurrent release of public notices by
Corps District Offices for a 45-day
comment period. There will be a public
hearing in Washington, D.C. to solicit
comments on the proposed NWPs. We
will review the comments received in
response to this Federal Register notice
and the public hearing with a task force
that includes Corps Regulatory field
personnel. This process will take
approximately 60-days. Upon
completion of our initial review of the
comments, we will complete a draft of
the final NWPs and solicit comments
from interested Federal agencies. The
final version of the NWPs will be
published in the Federal Register by
November 13, 2001. The NWPs will
then become effective by February 11,
2002. This schedule provides a 90-day
period for the state 401/CZM agencies to
complete their certification decisions.
Also within this 90-day period, the
Corps will finalize its regional
conditions and certify that the NWPs,
with any regional conditions or
geographic revocations, will only
authorize activities with minimal
adverse effects on the aquatic
environment, both individually and
cumulatively. The NWPs will become
effective at die end of the 90-day period.
The Corps regional conditioning and
401/CZM certification processes are
discussed elsewhere in this notice.
Regional Conditioning of Nationwide
Permits
The Corps is committed to reissuing
NWPs that result in no more than
minimal adverse effects on the aquatic
environment. An important element in
achieving this goal is the successful
implementation of the regional
conditioning process. The coordinated
involvement of tribes, state and Federal
agencies, Corps Districts, and
solicitation of public comments, assist
the Corps in identifying appropriate
regional conditions on the reissued
NWPs. Moreover, effective regional
conditioning protects aquatic systems at
the local level and helps ensure that
Corps Districts remain in compliance
with statutory requirements that NWPs
have no more than minimal adverse
effects on the aquatic environment, both
individually and cumulatively.
There are two types of regional
conditions. Conditions added as a result
of states Section 401 Water Quality
Certification/Coastal Zone Management
Act (401/CZM) concurrence. Second, by
Corps Divisions, in coordination with
Corps Districts, state and Federal
agencies, tribes, and the public. In
accordance with Corps regulations at 33
CFR 330.5 (c) & (d), any state 401/CZM
conditions for an NWP become regional
conditions for that NWP. The Corps
District public notices concerning the
final NWPs must include any 401/CZM .
regional conditions. Division Engineers
will add Corps required regional
conditions to NWPs after a public notice
comment period.
Each Corps District will issue a public
notice for the proposed reissuance of
NWPs approximately concurrent with
this Federal Register notice. The public
notice will include (1) Corps proposed
regional conditions, if any, that are
applicable to any of the proposed
NWPs; and (2) the existing Corps
regional conditions, if any. This initial
public notice will also request
comments or suggestions for additional
Corps regional conditions for the NWPs.
The initial public notice may also
include, for informational purposes
only, any state or tribal 401/CZM
regional conditions. However, the
public does not have the opportunity to
comment, on the state or tribal 401/CZM
regional conditions through the Corps.
A separate state or tribal process
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42073
involves the public regarding state or
tribal 401/CZM certifications, including
401/CZM regional conditions. Each
Corp District will announce the final
state or tribal 401/CZM determinations,
including any 401/CZM regional
conditions in the final NWP public
notice.
The initial public notices will request
that the general public and other
agencies submit comments on the NWPs
and any regional conditions proposed
by the Corps. These comments should
suggest additional implementation of
Corps regional conditions in specific
watersheds or waterbodies, or possibly
suspending or revoking NWPs in certain
geographic areas, specific watersheds or
waterbodies. Comments should have
data to support the need to the extent
practicable.
Before the effective date of NWPs,
each Division Engineer will prepare
supplemental decision documents
addressing the regional conditions for
each NWP. Each decision document
will include a statement by the Division
Engineer, certifying that any Corps
regional conditions imposed on the
NWPs will ensure that those NWPs will
authorize only activities with minimal
adverse effects. After the Division
Engineer establishes the Corps regional
conditions, each Corps District will
issue final public notices announcing
the final 401/CZM determinations,
including 401/CZM regional conditions
and Corps regional conditions. Each
Corps District may propose additional
Corps regional condition in future
public notices, as they determine
necessary.
Corps regional Conditions can be
applied to large geographic areas.
Examples include a state or county,
particular watersheds or waterbody (e.g.
Lower Kaskaskia River basin or Carlyle
Lake), or a specific type of water of the
US (e.g., Meramec Spring) focusing on
issues relating to the aquatic
environment within each Corps District.
The regional conditions are used to
ensure that the effects of the NWP
Program on the aquatic environment are
minimal, both individually and
cumulatively. Examples of Corps
regional conditions that may be used by
Corps Districts to restrict the use of the
NWPs include:
Restricting the types of waters of
the US where the NWPs may be used
(e.g., fens, hemi-marshes, 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 areas covered by a Special
Area Management Plan, or an Advanced
Identification study with associated
Regional General Permits;
Adding "notification" requirements
to NWPs to require pre-construction
notification (PCN) for all work in certain
watersheds or certain types of waters of
the US, or lowering the PCN threshold;
Reducing the acreage thresholds in
certain types of waters of the US;
Revoking certain NWPs on a
geographic or watershed basis;
Restricting activities authorized by
NWPs to certain times of the year in
certain waters of the US, to minimize
the adverse effects of those activities on
areas used by fish or shellfish for
spawning, nesting wildlife, or other
ecologically cyclical events.
The Corps regional conditions
implemented by each Corps District do
not supersede the General Conditions of
the NWP Program. The General
Conditions address the Endangered
Species Act, the National Historic
Preservation Act of 1966, the Wild and
Scenic Rivers Act, Section 401 Water
Quality Certification, Coastal Zone
Management, navigation, and other
applicable laws. Given the extent of the
coordination already mandated by
Federal law, the addition of regional
conditions at the state, tribal, watershed,
or geographic level will help ensure that
important public interest factors are
considered when evaluating projects for
NWP authorization.
Comments on regional issues and
regional conditions must be sent to the
appropriate District Engi:
indicated below:
Alabama
Mobile District Engineer, ATTN: CESAM-
OP-S, 109 St. Joseph Street, Mobile, AL
36602-3630
Alaska. '
Alaska District Engineer, ATTN: CEPOA-
CO-R, P.O. Box 898, Anchorage, AK
99506-0898
Arizona
Los Angeles District Engineer, ATTN:
CESPL-CO-R, P.O. Box 2711, Los Angeles.
CA 90053-2325
Arkansas
Little Rock District Engineer, ATTN:
CESWL-CO-P, P.O. Box 867, Little Rock,
AR 72203-0867
California
Sacramento District Engineer, ATTN:
CESPK-CO-0,1325 J Street, Sacramento,
CA 95814-4794
Colorado
Albuquerque District Engineer, ATTN:
CESPA-CO-R. 4101 Jefferson Plaza NE,
Room 313, Albuquerque, NM 87109
neer, as
Connecticut
New England District Engineer, ATTN:
CENAE-OD-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-CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Georgia
Savannah District Engineer, ATTN: CESAS-
OP-F, P.O. Box 889, Savannah, GA
31402-0889
Hawaii
Honolulu District Engineer, ATTN: CEPOH-
ET-PO, Building 230. Fort Shafter,
Honolulu, HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN:
GENWW-OP-RF. 210 N. Third Street, City-
County Airport, Walla Walla, WA 99362-
1876
Illinois
Rock Island District Engineer, ATTN:
CEMVR-RD, P.O. Box 004, Rock Island, IL
61204-2004
Indiana
Louisville District Engineer, ATTN: CELRL-
OR-F, P.O. Box 59, Louisville, KY 40201-
0059
Iowa
Rock Island District Engineer, ATTN:
CEMVR-RD, P.O. Box 2004, Rock Island,
IL 61204-2004
Kansas
Kansas City District Engineer, ATTN:
CENWK-OD-P, 700 Federal Building, 601
E. 12th Street, Kansas City, MO 64106-
2896
, Kentucky
Louisville District Engineer, ATTN: CELRL-
OR-F, P.O. Box 59, Louisville, KY 40201-
0059
Lpuisana
New Orleans District Engineer, ATTN:
CEMVN-OD-S, P.O. Box 60267, New
Orleans, LA 70160-0267
Maine
New England District Engineer, ATTN:
CENAE-OD-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-OD-R, 696 Virginia Road,
Concord. MA 01742-2751
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Michigan
Detroit District Engineer, ATTN: CELRE-CO-
L, P.O. Box 1027, Detroit, MI 48231-1027
Minnesota
St. Paul District Engineer, ATTN: CEMVP-
CO-R, 190 Fifth Street East, St. Paul, MN
55101-1638
Mississippi
Vicksburg District Engineer, ATTN: CEMVK-
OD-F, 4155 Clay Street, Vicksburg, MS
39183-3435
Missouri
Kansas City District Engineer, ATTN:
CENWK-OD-P, 700 Federal Building, 601
E. 12th Street, Kansas City, MO 64106-
2896
Montana
Omaha District Engineer, ATTN: CENWO-
OP-R, 215 N. 17th Street, Omaha, NE
68102-4978
Nebraska
Omaha District Engineer, ATTN: CENWO-
OP-R, 215 N. 17th Street, Omaha, NE
68102-4978
Nevada
Sacramento District Engineer, ATTN:
CESPK-CO-0,1325 J Street, Sacramento,
CA 95814-2922
New Hampshire
Now England District Engineer, ATTN:
CENAE-OD-R, 696 Virginia Road,
Concord, MA 01742-2751
New Jersey
Philadelphia District Engineer, ATTN:
CENAP-OP-R, Wannamaker Building, 100
Perm Square East, Philadelphia, PA 19107-
3390
Now Mexico
Albuquerque District Engineer, ATTN:
CESWA-CO-R, 4101 Jefferson Plaza NE,
Room 313, Albuquerque, NM 87109
New York
New York District Engineer, ATTN: CENAN-
OP-R, 26 Federal Plaza, New York, NY
10278-9998
North Carolina
Wilmington District Engineer, ATTN:
CESAW-CO-R, P.O. Box 1890.
Wilmington, NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 215 North 17th Street, Omaha, NE
68102-4978
Ohio
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-OD-
R, P.O. Box 61, Tulsa, OK 74121-0061
Oregon
Portland District Engineer, ATTN: CENWP-
PE-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-OD-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-
OP-R, 215 North 17th Street, Omaha, NE
68102-4978
Tennessee
Nashville District Engineer, ATTN: CELRN-
OR-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-
OD-R, P.O. Box 17300, Ft. Worth, TX
76102-0300
Utah
Sacramento District Engineer, ATTN:
CESPK-CO-Q, 1325 J Street, CA 95814-
2922
Vermont
New England District Engineer, ATTN:
CENAE-OD-R, 696 Virginia Road,
Concord, MA 01742-2751
Virginia
Norfolk District Engineer, ATTN: CENAO-
OP-R, 803 Front Street, Norfolk, VA
23510-1096
Washington
Seattle District Engineer, ATTN: CENWS-
OP-RG, P.O. Box 3755, Seattle, WA 98124-
2255
West Virginia
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CEMVP-
CO-R, 190 Fifth Street East, St. Paul, MN
55101-1638
Wyoming
Omaha District Engineer, ATTN: CENWO-
OP-R, 215 North 17th Street, NE 68102-
4978
District of Columbia
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Pacific Territories
Honolulu District Engineer, ATTN: CEPOH-
ET-PO, Building 230, Fort Shafter,
Honolulu, HI 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970,
Jacksonville, FL 32202-4412
Tribal, State and CZM Certification of
Nationwide Permits
Tribal or state Water Quality
Certification pursuant to Section 401 of
the CWA, or waiver thereof, is required
' for activities authorized by NWPs which
may result in a discharge into waters of
the US. In addition, any state with a
Federally approved Coastal Zone
Management (CZM) 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 CZM plan. Section 401 Water
Quality Certifications and/or CZM
consistency determinations may be
conditioned, denied, or issued for parts
of the NWPs.
The Corps believes that, in general,
the activities authorized by the NWPs
will not violate tribal or state water
quality standards and will be consistent
with state CZM plans. The NWPs are
conditioned to ensure that adverse
environmental effects will be minimal
and are the types of activities that
would be routinely authorized, if
evaluated under the Individual Permit
process. The Corps recognizes that in
some tribes or states there will be a need
to add regional conditions, or individual
tribal or state review for some activities
to ensure compliance with water quality
standards or consistency with CZM.
plans. As a practical matter, the Corps
intends to work with tribes or states to
ensure that NWPs include the necessary
conditions so that the tribe or state can
issue 401 Water Quality Certifications or
CZM consistency agreements. Therefore,
each Corps District will initiate
discussions with their respective tribe
or state, as appropriate, following
publication of this proposal to discuss
issues of concern and identify regional
modification and other approaches to
the scope of waters, activities,
discharges, and "notification", as
appropriate, to resolve these issues.
Note some states have adopted State
Programmatic General Permits (SPGP)
and the NWPs have been wholly or
partially revoked. Concurrent with
today's proposal, Corps Districts may be
proposing modification or revocation of
the NWPs hi states where SPGPs will be
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42075
used in place of some or the entire NWP
Program.
Section 401 of the Clean Water Act
(CWA)
This Federal Register notice serves as
the Corps application to the tribes,
states, or EPA, where appropriate, for
Section 401 Water Quality Certification
of the activities authorized by these
NWPs. The tribes, states, and EPA,
where appropriate, are requested to
issue, deny, or waive certification
pursuant to 33 CFR 330.4(c) for these
NWPs.
If a state denies a Section 401 Water
Quality Certification for an NWP within
that state, then the Corps will deny
NWP authorization for the affected
activities within that state without
prejudice. 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. The Corps will notify the
applicant that they must obtain a project
specific Section 401 Water Quality
Certification, or waiver thereof, before .
starting work in waters of the US.
Anyone wanting to perform such
activities where a "notification" is not
required must first obtain a project
specific Section 401 Water Quality
Certification or waiver thereof from the
state 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 states' CZM Programs.
This determination is contingent upon
the addition of state CZM conditions
and/or regional conditions, or the
issuance by the state of an individual
consistency concurrence, where
necessary. The 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 states' coastal zone are not contingent
on such states' agreement or
disagreement with the Corps
consistency determinations.
If a state disagrees with the Corps
consistency determination for an NWP,
then the Corps will deny authorization
for the activities within or that would
affect the coastal zone without
prejudice. 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. The Corps will notify the
applicant that they must obtain a project
specific CZMA consistency
determination before starting work in
waters of the US. Anyone wanting to
perform such activities where
"notification" is not required must
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).
Discussion for Comment
Nationwide Permits
We are proposing to reissue, without
any changes to the terms and
conditions, all NWPs and NWP General
Conditions not discussed in the
following preamble. The following
discussion focuses only on specific
NWP or NWP General Condition
changes or modifications being
proposed for the reissued permits.
14. Linear Transportation Projects
The Corps is proposing to simplify
NWP 14. We are proposing to simplify
the terms and conditions for authorizing
discharges of dredged or fill material for
public and private projects in tidal and
non-tidal waters. We propose to treat
both public and private transportation
projects the same for tidal and non-tidal
waters. We believe that the impacts to
the aquatic environment for
transportation projects will be
essentially the same whether the project
is public or private, although on average
we would expect the private
transportation projects to be smaller.
However, we continue to believe that a
distinction needs to be made for such
projects concerning tidal and non-tidal
waters. Therefore, we are proposing to
retain the smaller acreage limit in the
existing permit for tidal waters. For all
linear transportation projects to non-
tidal waters, the acreage limit would be
Vz-acre, and for tidal waters, the acreage
limit would be Va-acre. This change
would allow private transportation
projects in non-tidal waters to have a
maximum acreage of Va-acre instead of
the current Va-acre. Our proposal will
simplify three categories of waters
(tidal, private, and public non-tidal) into.
two categories {tidal and non-tidal).
There would be no change in acreage
limits for other transportation projects.
To eliminate varying interpretations
of the 200 linear-feet prohibition, we are
proposing to remove this prohibition
from the NWP. Although we propose
simplifying the basis for use of this
permit, we do not anticipate any
significant practical effect from this
change as the limiting factor contained
in the terms and conditions of NWP 14
is generally the acreage limitation. The
"notification" threshold (i.e. Vio-acre. for
areas without special aquatic sites, and
all proposed projects that would involve
fill in special aquatic sites) allows the
Corps to do a case-by-case review. This
will ensure that any NWP 14 activity
that exceeds this threshold will have a
minimal adverse effect on the aquatic
environment. Very few projects
exceeding 200 linear-feet would remain
below the Vic-acre "notification"
threshold. For example, a 200" by 22"
wide transportation crossing would
impact 4,400 sq. ft. (i.e., Vio-acre).
Because the Corps will review, .case-by-
case, every project involving Vio-acre of
impact (and every project of any size
involving special aquatic sites), the 200
linear-foot prohibition is largely
superfluous. In a few isolated cases, it
may preclude use of the permit in
situations where impacts are minimal,
and for this reason (as well as
simplification) we are proposing to
remove it.
Some agencies have expressed
concern with development pressure in
coastal areas, and the importance of the
tidal ecosystems. We agree with the
importance of tidal ecosystems and we
are not proposing to increase acreage
thresholds in tidal waters. We do not
believe that standardizing acreage limits
for public and private projects in non-
tidal waters and removing the linear-feet
prohibition will cause more than
minimal adverse effect when considered
in conjunction with the Vio-acre
"notification" provision contained in
the terms and conditions of the NWP.
We believe that this "notification"
requirement and the NWP General
Conditions, to addition to other
mechanisms such as regional conditions
developed by Corps Districts, will
ensure that authorized impacts have no
more than minimal adverse effect on the
aquatic environment.
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Features of the proposed work that are
integral to the linear transportation
project, such as interchanges,
stormwater detention basins, rail spurs
or water quality enhancement measures,
may also be authorized by this permit.
This permit may not be used to
authorize non-linear features commonly
associated with transportation projects,
such as vehicle maintenance or storage
buildings, parking lots, train stations, or
hangars.
For all linear transportation projects,
the Corps has the authority to assert
discretionary authority when evaluating
the magnitude of adverse effects on the
aquatic environment (33 CFR 330.1(d),
330.4(e) & 330.5). The Corps Districts
will determine on a case-by-case basis
whether this NWP may be used for a
single and complete project, or whether
an Individual Permit may be required.
The definition of the term "single and
complete project" for linear projects can
be found at 33 CFR 330.2(i). Corps
Districts may also exercise discretionary
authority over any project that, in the
determination of the District Engineer,
has the potential to result in more than
minimal impact on the aquatic
environment, after considering any
mitigation. The Corps request comments
on raising the acreage threshold to Vz-
acre for private roads in non-tidal
waters, and removing the 200 linear-foot
prohibition.
21. Surface Coal Mining Activities
. The Corps is proposing two changes
to this NWP to ensure the proper focus.
of the NWP and to ensure adequate
mitigation will be required resulting in
no more than minimal adverse effects
on the aquatic environment. Both of
those changes will increase protection of
the aquatic environment. First, the
Corps is proposing to require a specific
determination by the District Engineer
on a case-by-case basis that the activity
complies with the terms and conditions
of this NWP and that adverse
environmental effects are minimal both
individually and cumulatively after
consideration of any required mitigation
before any project can he authorized.
Second, the Corps is also proposing to
add clarification to NWP 21 that the
Corps will require mitigation when .
evaluating surface coal mining
activities, in accordance with General
Condition 19. In addition, the Corps
Section 404 review will address the
direct and indirect effects to the aquatic
environment from the regulated
discharge of fill material.
The existing permit relies primarily
on any state-required mitigation under
the Surface Mining Control and
Reclamation Act (SMCRA) to address .
impacts to the aquatic environment. The
Corps has determined that this is not
appropriate, as the requirements of
SMCRA differ form those of the CWA
and reliance on SMCRA authorization
may not result in adequate mitigation of
adverse aquatic impacts. Therefore, the
reissued permit provides for Corps
determination of appropriate mitigation
in accordance with General Condition
19. Corps review is limited to the direct,
indirect, and cumulative effects of fills
in waters of the US. In order to ensure
that appropriate mitigation is
performed, and that no activities are
authorized that result in greater than
minimal adverse impacts, either
individually or cumulatively, the
revised permit also requires not only
notification, but also explicit
authorization by the Corps before the
activity can proceed. The Corps believes
that both of these changes will
strengthen environmental protection for
projects authorized by this permit. The
Corps request comments on these
proposed changes.
Definition of Fill: On April 20, 2000,
the Corps and EPA issued a joint
proposal to revise the definition of fill
found at 33 CFR 323.2(e) and 40 CFR
232.2. The proposed revision would
clarify that fill material means material
(including, but not limited to rock, sand
and earth) that has the effect of: (i)
Replacing any portion of water of the
US with dry land; or (ii) Changing the
bottom elevation of any portion of a
water of the US.
The proposed "Rule" would clarify
that placement of coal mining
overburden in waters of the US is
considered a discharge of fill material.
The agencies received approximately
seventeen thousand comments on the
proposed rule and are still evaluating
these comments; Unless and/or until a
final "Rule" is issued, the scope of
coverage of this permit is determined by
the current regulations and any changes
to those regulations would affect only
the scope of covered discharges, not the
terms and conditions of the permit
itself.
Bragg Settlement Agreement: On
December 23,1998, a settlement
agreement in litigation that challenged
the use of NWPs in West Virginia to
regulate so-called "valley fills"
associated with certain types of coal
mining in that state. Bragg v. Robertson,
Civil Action No. 2:98-0636 (S.D. W.Va).
That agreement was approved by the
Court on June 17,1999. 54F.Supp. 2d
653. While on appeal, the Fourth Circuit
Court of Appeals vacated a subsequent
decision issued by the District Court
addressing SMCRA claims in the case
(see 248 F.3d 275), that "decision left
intact the 1998 settlement agreement.
See 248 F.3d at 288, n.l (noting District
Court's approval of the settlement
agreement). A portion of the settlement
agreement states that excess rock
resulting from a surface coal mining and
reclamation operation which would
bury a stream segment draining a
watershed of 250 acres or more will
generally be considered to have more
than minimal adverse effects on waters
of the US. Consistent with the terms of
this agreement, to which the Corps is a
party, the Corps will generally use its
discretionary authority to require
Individual Permits for coal mining
activities in West Virginia that exceed
the 250-acre watershed threshold. The
Corps notes that this agreement was
negotiated among various Federal
agencies and the State of West Virginia,
and relates to certain types of coal
mining operations in that state. The
Corps believes there are many different
types of coal mining operations in other
parts of the country and that the
conditions of the settlement agreement
may not be applicable to many of these
other operations. For this reason, the
terms of the agreement have not been
incorporated into the permit, which by
definition is nationwide in scope.
Further, we are gathering data to
better understand the effects of valley
fills on the aquatic environment.
Therefore, at this time we are not adding
additional conditions from the
agreement to the NWP itself. As
. additional scientific data is gathered,
the terms of the agreement and/or may
be revised. Thus, we do not believe that
we should add specific conditions from
the settlement agreement to this NWP
which has a term of five years. However,
the Corps wishes to reiterate that.it will
abide by all terms of the agreement as
long as it remains in effect.
It is important to the Corps that
surface coal mining activities authorized
by this NWP do not cause more than
minimal adverse effects to the aquatic
environment after considering
mitigation. As such, the District
Engineer will ensure that the discharge
of fill material in waters of the US
associated with coal mining activities
are having no more than minimal
adverse effects on the aquatic
environment. The Corps requests
comments on the proposal to reissue
this NWP with two additional
provisions to strengthen environmental
protection. The Corps also specifically
solicits comment on the appropriate of
establishing environmental thresholds
for determining the applicability of
NWP 21, such as the acres of the
watershed impacted, the nature and
length of the streams, and the
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42077
environmental functions and values of
the streams, among other things.
27. Wetland and Riparian Restoration
and Creation Activities
The Corps is not proposing any
substantive change to the terms and
conditions or the types of activities
authorized by this NWP; we are only
proposing to simplify the four categories
of lands covered into three. We are
proposing to combine two provisions;
(a)(2) Any Federal land and (a)(4) Any
private or public land. The two
provisions would be listed as provision
(a)(3) Any other public, private or tribal
land. Initially, these two provisions
were meant to cover cases which (a)(l)
& (3) did not. The current structure of
this NWP resulted when all Federal and
privately owned lands were included in
die December 13,1996, Federal Register
Notice (61 FR 65874-65922). The notice
should have combined (a)(2) and (a)(4)
at that time. Provision (a)(3) Reclaimed
surface coal mine lands will be listed as
provision (a)(2). This change will not
affect how or if any activities will be
authorized by this NWP.
31. Maintenance of Existing Flood
Control Facilities
The Corps is proposing to modify
NWP 31 to clarify Corps policy and
requirements regarding mitigation for
maintenance activities. We intend to
clarify documentation requirements for
the baseline determination, and allow
maintenance of areas that are a part of
the flood control facility without
constructed channels provided that the
Corps approves Best Management
Practices (BMPs) to ensure that
environmental effects are minimal.
The Corps policy is that temporary
impacts due to routine maintenance
activities generally do not require
mitigation to ensure that the impacts
will be minimal. Although, in some
cases, mitigation for maintenance
activities is necessary to ensure that
impacts will be minimal. However, it is
neither necessary nor appropriate to
impose recurring mitigation
requirements for discharges of dredged
or fill material associated with cyclic
maintenance activities in flood control
facilities. Cyclic maintenance is .
inherent in the continued operation of
flood control facilities, and regulated
discharges of dredged or fill material
will inevitably occur as a result of this
activity. In recognition of these facts, we
propose to revise NWP 31 to explicitly
authorize such discharges, and to
proactively prescribe mitigation for such
reasonably foreseeable, but unspecified,
discharges associated with routine
maintenance. We propose to accomplish
this by establishing the prerequisite
approval of a "maintenance baseline" as
a threshold requirement for NWP 31
eligibility in all cases other than
emergency situations. The
"maintenance baseline" is a description
of the physical characteristics (e.g.,
dimensions, configuration, etc.) of the
flood control facility and attendant
features, within which regulated
discharges associated with maintenance
activities that will not increase those
physical characteristics are eligible for
authorization under NWP 31. The
maintenance baseline will include all
constructed channels and features, and
areas in which no construction has
occurred but which have been
incorporated, as is, in the design of the
flood control facility.
We are proposing to clarify that
mitigation requirements should be
determined and imposed as part of the
approval of the maintenance baseline.
Such requirements will be based on the
identification and assessment of
recurring discharges associated with
routine maintenance, and of reasonably
foreseeable temporary discharges.
Recurring discharges associated with
permanent features of a flood control
project may only be authorized under
this NWP as part of the approval of the
original maintenance baseline, or as part
of the approval of a revised maintenance
baseline. In these cases, mitigation that
specifically offsets the adverse effects of
the recurring discharge in waters of the
US should be required.
In addition, it is possible that future
maintenance operations will require
non-recurring discharges for temporary
features such as staging areas, access
fills for maintenance equipment, and
interim storage areas for debris and
excavated materials. To the extent that
the need for such temporary discharges
can reasonably be anticipated, a generic
assessment of adverse effects should be
conducted, and commensurate
mitigation should be required as part of
the approval of the maintenance
baseline. We are proposing that minor
discharges associated with such
projects, such as drippings and small
volume soil disturbances from
excavation or earth-moving equipment,
or from vehicle tires or tracks, are
adequately mitigated by BMPs, and no
additional mitigation will be required
concerning such discharges. Note that
some such discharges may meet the
definition of "incidental fallback" and
are not regulated under Section 404 of
theCWA.
Flood control facilities are, by nature,
intended to avoid or reduce the effects
of floods on life and property. Thus, we
are proposing to revise the permit to
allow the use of this NWP in emergency
situations to authorize discharges
associated with maintenance activities
in flood control facilities for which no
.maintenance baseline has been
approved. Emergency situations are
those that 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, we are proposing that
the determination of mitigation
requirements may be-deferred until the
emergency maintenance is
accomplished. However, in such cases a
maintenance baseline will be
determined and appropriate mitigation
required once the emergency has
passed. The emergency exception is not
intended to be a substitute for advanced
planning of maintenance activities.
Such planning generally allows the
activities to be conducted in a manner
that reflects appropriate flood control
needs and eliminates unnecessary
adverse impacts to aquatic resources.
Factors such as the functions and values
of the aquatic resource impacted and the
maintenance history of the facility will
be considered hi determining whether
emergency maintenance can be
authorized under this NWP. In cases
where use of this permit is determined
to be inappropriate, the Corps retains'
discretion to authorize emergency
activities through an Individual Permit
under its existing regulations.
In proposing these modifications of
NWP 31, we are reflecting existing
Corps policy regarding the maintenance
of Corps-constructed Civil Works flood
control projects and ecosystem
restoration projects. Two key features of
the Corps Civil Works project policy are
to acknowledge that routine
maintenance activities and resultant
discharges are inherent parts of the
project operation, and to address all
foreseeable adverse effects through the
establishment of "one-time" mitigation
requirements as part of the initial
authorization process. Consistent with
this policy, we are proposing to modify
NWP 31. We are proposing to require
the approval of a maintenance baseline
and determine a one-tune mitigation
requirement as appropriate at the time
an original maintenance baseline is
approved, or when any revision of the
maintenance baseline is approved. In
some cases, the District Engineer may
determine that mitigation is not
necessary for such projects in order to
ensure minimal adverse impacts. In
situations where mitigation
requirements were considered but not
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required, the discharges associated with
any subsequent maintenance activities,
provided they do not exceed the
maintenance baseline, will not require
mitigation.
The Corps also is proposing to clarify
the documentation required for a
determination of a maintenance
baseline. In the past, our District offices
and the flood control agencies have not
been certain of the requirements to
document the maintenance baseline. We
have clarified that the flood control
agency needs to document the physical
characteristics and design capacity of
the existing flood control facility. This
can be done by submitting as-built or
approved drawings and evidence of the
flood control facility design capacities
for approval as the maintenance
baseline.
The NWP 31 will allow floodways
that do not have constructed channels to
be maintained. However, the flood
control agency would need to establish
BMPs to ensure that the adverse effects
on the aquatic environment would be
minimal. These areas are a part of the
overall flood control project and need to
be maintained despite the absence of
constructed channels or hard surfaces.
We believe that by establishing BMPs as
part of the maintenance baseline for
these areas we can ensure that these
maintenance activities have minimal
impacts. The Corps requests comments
on the proposed changes to this NWP.
This NWP 31 does not establish a
need for a Corps permit where a need
does not otherwise exist. For example,
some flood control projects may qualify
for exemptions under Section
404(f)(l)(B) of the CWA. The 404(fJ(l)(B)
exemption provides for the
"maintenance, including the emergency
reconstruction of recently damaged
parts, of currently serviceable structures
such as dikes, dams, levees, groins, rip
rap, breakwaters, causeways, and bridge
abutments or approaches, and
transportation structures."
37. Emergency Watershed Protection
and Rehabilitation
This NWP is limited to Natural
Resource Conservation Service (NRCS)
and U.S. Forest Service (USFS)
Programs. We received a request from
the Department of the Interior (DOI) to
include the Wildland Fire Management
Burned Area Emergency Stabilization
and Rehabilitation Program (DOI
Manual, Part 620, Ch. 3) to this NWP.
Their letter stated, "the Department of
the Interior has similar responsibilities
as the Forest Service, such as
suppression of wildland fires and the
rehabilitation of the burned land." The
letter went on to also state "that the
Department of the Interior operated both
jointly and independently of the Forest
Service, concerning emergency
rehabilitation of public land."
As such, the Corps is proposing to
modify this NWP to authorize work
conducted or funded by the DOI
emergency wildland fire rehabilitation
Program. Including the different bureaus
of the DOI that are included in this
program (i.e. Bureau of Land
Management (BLM), Bureau of Indian
Affairs (BIA), National Park Service
(NFS), US Fish and Wildlife Service
(USFWS), Bureau of Reclamation (BOR))
will allow for effective management of
public lands when conducting
emergency wildland fire rehabilitation
work. Including the DOI in this NWP
allows the option for authorization of
their emergency rehabilitation work that
is conducted independently of the
existing USFS Program.
In addition, NRCS is currently
developing a PEIS which will result in
modification of the existing Emergency
Watershed Protection Program
regulations. At this stage in the PEIS
development, specific terminology is
not finalized. Therefore, NRCS has
recommended that the NWP 37
language be made more general by
deleting the term "exigency," which
may be changed in the NRCS
regulations. This will ensure that the
permit language remains consistent with
the NRCS terminology and that
necessary activities will continue to be
authorized during recovery efforts
caused by national disasters.
39. Residential, Commercial, and
Institutional Developments
The Corps is proposing these changes
to this NWP: (1) Simplify the
subdivision provision, without
substantively changing its effects, (2)
delete the one-cfs restriction on stream
impacts, and (3) allow a project specific
wavier of the 300 linear-feet prohibition
following a written determination by the
Corps that any adverse environmental
effects would be no more than minimal
(discussed separately in the context of
all affected permits below). We are
proposing to reduce confusion
associated with the "subdivision"
The current subdivision provision is
confusing and difficult to implement.
We propose simplifying the language to
read, "for residential subdivisions, the
aggregate total loss of waters of the US
associated with NWP 39 can not exceed
Va-acre. This includes any loss of waters
associated with the development of
individual lots within the subdivision."
The impacts and full extent of fill
needed for residential subdivisions
including any fill for all the lots within
the subdivision will be considered
initially to avoid any piecemealing
approach by developers. In evaluating
proposed residential community
developments under NWP 39, the Corps
will review the overall development
plan. Where the Corps determines that
total impact, including all platted lots,
would clearly exceed the Vz-acre limit,
the Corps will require an Individual
Permit. NWP 39 may be used more than
once for a project, but the aggregate total
impacts authorized may not exceed Vz-
acre. For example, if NWP 39 were used
for the roads, utilities and one lot fill,
and the aggregate total impacts were V»-
acre, then the total of any subsequent
use of NWP 39 within that subdivision
(e.g. for individual lot fills by a
subsequent homeowner) could not
exceed 'A-acre.
If additional land is purchased
adjacent to the authorized residential
subdivision, and future development is
proposed (i.e., an additional phase or
unit) then that second phase would be
considered a separate project. NWP 39
could be used on this second phase (an
additional new subdivision with
independent utility from the first
subdivision) as it was on phase one (i.e.,
a maximum of Vz-acre of impacts could
be authorized for phase two). However,
if the Corps determines that the
"phasing" of a project has been
deliberately structured in advance to
avoid exceeding the Vz-acre limit, it will
prohibit the use of this NWP for
subdivisions that result in the loss of
more than Vz-acre of waters in total.
The Corps believes that a provision of
NWP 39 (Part k) regarding stream
impacts downstream of the point on a
stream where the average annual flow is
one-cfs unnecessarily limits the use of
this permit in some cases where impacts
are still minimal (e.g., a stream that has
been severely degraded by livestock
grazing). The Corps receives a
"notification" for all activities involving
Vio-acre impact, for any project effecting
more than 300 linear-feet of stream bed
and all projects affecting open waters.
Collectively, these provisions make it
unlikely that a project affecting a stream
with flow exceeding one-cfs will escape
notification and individual review. The
Corps believes its case-by-case review of
these projects will ensure protection of
the aquatic environment. As such, we
are proposing to remove this provision
from NWP 39. The Corps requests
comment on the proposed revisions.
42. Recreational Facilities
In addition to the proposed change
discussed below regarding this NWP
(see next section), we are requesting
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42079
suggestions regarding criteria, standards
and BMPs that should be applied to this
NWP for recreational facilities.
Suggestions that will be considered
must ensure that adverse effects on the
aquatic environment are minimal and
will integrate the recreational facility
into the natural landscape. We will
consider adopting such criteria,
standards, or BMPs, where appropriate
into flie permit itself or through
implementation of guidance. These
suggestions may be generic for all
recreational facilities or may be for
specific types of recreation facilities.
Project Specific Wavier of 300-Linear
Feet Prohibition in NWPs 39, 40,42,
and 43
For these four permits, the Corps is
proposing to allow a waiver, on a case-
by-case basis, of the prohibition on
impacts exceeding 300 linear-feet of
streambed provided the Corps
determines that the impacts to the
aquatic environment will be minimal.
To understand why, it is important to
realize that the CWA's geographic
. jurisdiction extends to the uppermost
portions of tributary systems. Some
streams extend for thousands of feet, but
are extremely small. For example, a
stream may consist of a drainage-way
(which may have been straightened in
the past by human activity) that is a six-
inch wide by one-inch deep area
running for several thousand feet
throughout a grassy upland field. Such
a stream may only have water flowing
for a few days after a rain event. In some
cases, this type of stream provides few,
if any, aquatic functions and loss of
more than 300 linear-feet of such a
stream would not constitute more than
minimal impacts. This is especially true
if the District Engineer has reviewed the
project and required appropriate
mitigation measures, which ensure that
the project does not have more than
minimal adverse effect on the aquatic
environment. In cases where the Corps
is aware or becomes aware of areas that
provide higher level of aquatic
functions, the Corps will ensure proper
protection of the aquatic environment.
As a result, the Corps believes the 300
linear-foot prohibition for activities
involving residential, commercial, and
institutional developments, relocation
of existing serviceable drainage ditches
constructed in non-tidal streams,
recreation facilities, discharges or
excavation for the construction of new
stormwater management facilities, or for
the maintenance of existing stormwater
management facilities could in some
cases'unnecessarily restrict
authorization of an otherwise minimal
impact activity. Therefore, we are
proposing to allow a waiver of the 300
linear-foot prohibition on a project
specific basis.
To make use of this waiver, the .
applicant must first notify the Corps in
accordance with the "notification"
General Condition that the applicant
would like to exceed the 300 linear-foot
limitation on impacts to streambeds.
The District Engineer may waive the
prohibition and authorize impacts
exceeding 300 linear-feet to streams, but
only if the District Engineer determines
the that the activity complies with the
other terms and conditions of the NWP,
and the adverse environmental effects
on the aquatic environment will be
minimal both individually and
cumulatively. In making this
determination, the District Engineer will
consider factors such as the length of
stream impacted and then- water quality
conditions, functions, and designations,
the size of the watershed drained by
those streams, potential impacts to flood
retention/desynchronization functions,
biological resources, known public
concern, and any required mitigation.
The Corps believes that Individual
Permits will usually be required for
projects that exceed the 300-foot
limitation, and will track the exercise of
the wavier provision. Note that this
waiver provision is more restrictive than
the notification required in other NWPs,
because following notification, the
Corps must make a case-specific
determination that any impacts will be
minimal, and notify the project
proponent in writing of this
determination. If the written verification
by the Corps is not received, the project
is not authorized.
Allowing a case-specific waiver of the
prohibition provides flexibility where
the adverse effects are minimal as
discussed above. Given the Corps
limited human resources and an
increasing demand for aquatic resource
protection, this flexibility allows
efficiency in processing proposed
projects with impacts to aquatic areas
that are relatively low value, such as
degraded waters of the US. This waiver
provision is not intended to "relax"
aquatic resource protection. It is
intended to allow the Corps to focus
limited resources more intensively on
areas of higher quality aquatic
ecosystems, or areas where impacts are
likely to be more than minimal.
Although the Corps is proposing to
allow a limited project-specific waiver
of the 300 linear-foot prohibition on
stream impacts, other conditions restrict
some streambed impacts such as,
channelization, special aquatic site, and
shellfish beds. We continue to
discourage extensive channelizing or
relocation of streambeds because of
potential adverse effects on the stream
and the potential to intensify
downstream flooding. The District
Engineers will evaluate on a case-by-
case basis the need for requested
authorizations to channelized or
relocate streambeds for extensive
lengths. Channelization of streams can
have adverse impacts downstream,
which under General Condition 21 must
be reduced to the minimum necessary
and mitigated. If it is determined by die
District Engineer that the project will
result in more than minimal adverse
effect on the aquatic environment, the
District Engineer will not grant a waiver
and an Individual Permit will be
required.
Nationwide Permits General Conditions
4. Aquatic Life Movements
Recently, there has been confusion on
the part of some members of the public
over the meaning of this General
Condition to suggest that if any portion
of waters of the US are filled, then that
would substantially disrupt the
movement of aquatic life. Such an
interpretation would have the effect of
prohibiting virtually all discharges of
dredged or fill material under NWPs.
This would defeat the entire purpose of
the NWP Program and that has never
been our intent. Thus, we propose to
clarify this General Condition.
It was not the Corps intent for this
condition to be interpreted as
prohibiting use of NWPs simply because
aquatic life can not move into an area
that was filled. Obviously, filled areas
will not be used by aquatic life as if they
were unfilled areas. Rather, it was
always the Corps intent that this
General Condition restrict the use of
NWPs when the discharge of dredged or
fill material into waters of US would
prevent the necessary life-cycle
movements of aquatic life to remaining
waters of the US. For example, fills
which block the movement of an
anadromous fish species to an area of
substantial importance as nursery
grounds for juveniles. Under this
General Condition, such fills would not
be authorized. Our concern is not with
preventing any movement within water,
but with preventing movement that
would substantially effect the life cycle
of the aquatic life.
The condition does not automatically
restrict all filling (i.e. fill placed in the
upper limits of a stream may be
authorized when the fill does not
interfere with necessary aquatic life
movement). Of course, if the loss of
such waters of the US would have more
than minimal adverse effects on die '
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aquatic environment, then NWPs could
not be used to authorize such fills.
However, in such cases, the decision to
require an Individual Permit would not
be cased on this General Condition.
9. Water Qualify
The Corps is proposing to clarify this
condition as it relates to detailed studies
, and documentation requirements. The
changes will not reduce protection of
the aquatic environment. Although the
language of this condition could be
interpreted to require detailed studies
and design to develop water quality
plans for every permit action, that was
never our intent. While we do believe
that inclusion of water quality
management measures in project design
is very important, we do not believe that
comprehensive design and planning
should be a requirement of Corps NWPs,
except in a few cases.
In most cases, the Corps relies on state
or local water quality programs. Where
such programs do exist, the Corps will
normally review the project to ensure
that appropriate water quality features,
such as stormwater retention ponds, are
designed into the project. In some cases,
the Corps may require more extensive
design features to ensure that open
water and downstream water quality are
not substantially degraded. Normally,
we believe that the permittee will
comply with the requirements of this
condition by obtaining state or local
water quality approval or complying
with state or local water quality
practices, where such practices exist.
We are proposing to add language that
clarifies that permittees may meet the
requirement of this condition by
complying with state or local water
quality practices.
13. Notification
The Corps is proposing, under
Contents of Notification, to provide
applicants the option to provide
drawings, sketches or plans sufficient
for Corps review of the project to
determine if the project meets the terms
of a NWP. We do not intend this
supplemental documentation to be
detailed engineering drawings or plans.
Simply, this additional information is
for the Corps to review in order to
efficiently determine that the project
meats the terms and conditions of the
NWP. Often drawings or sketches can be
used to more clearly show that the
project complies with the terms of an
NWP. The Corps expects that most
"notifications" will include a sketch
that will expedite the Corps review.
Applicants are encouraged to supply
such drawings, but such drawings are
not required for a complete
"notification" unless the Corps
determines on a case-by-case .basis that
a sketch or drawing is necessary to show
that the activity complies with the terms
of the NWP.
We are proposing to add additional
language to the "notification"
requirement for NWPs 21, 39, 40, 42,
and 43. For all projects using NWP 21,
and for projects using NWPs 39,40,42,
and 43 that propose impacting
intermittent or perennial stream beds in
excess of 300 linear-feet, the Corps must
be notified and explicit authorization
obtained before the project can proceed.
In the case of NWP 21, this
authorization would be based on a
determination by the District Engineer
that the adverse effects of the project on
the aquatic environments were minimal,
both individually and cumulatively,
after considering mitigation. In the case
of NWPs 39, 40, 42, and 43, this
authorization would require a waiver of
the 300 linear-foot prohibition, again
based on a determination by the District
Engineer that adverse effects on the
aquatic environment are minimal,
individually and cumulatively. These
regulations are similar to the provision
under NWP 13 for Bank Stabilization, in
that the District Engineer must verify
that the project complies with the terms
and conditions of the NWP. The District
Engineer must also determine that the
adverse environmental effects to the
aquatic environment are minimal both
individually and cumulatively after
considering mitigation. If the applicant
has not received an explicit Corps
waiver in writing for the activity, then
impacts exceeding 300 linear-feet to
stream beds are not authorized by NWPs
39, 40, 42, and 43.
Although the Corps is proposing to
allow a waiver of the 300 linear-foot
prohibition Ito a "notification"
requirement], we still discourage
extensive channelizing or relocation of
stream beds because of potential adverse
effects on the stream and the potential
to intensify downstream flooding. The
District Engineers will evaluate on a
case-by-case basis the need for
requested authorizations to channelize
or relocate stream beds for extensive
lengths. More than minimal
channelization of streams can have
adverse impacts downstream and
therefore under General Condition 21
the impacts must be reduced to the
minimum necessary and mitigated. If
the District Engineer determines that the
project will result in more than minimal
adverse effect on the aquatic
environment, the District Engineer will
not issue a waiver and an Individual
Permit will be required.
We are also proposing to delete for
NWPs 12,14, 29, 39, 40, 42, 43, and 44
the requirement to provide
"notification" to the Corps for
permanent above grade fills in waters of
the US. This change is being proposed
to be consistent with the proposed
changes to General Condition 26 for
"Fills within 100-year Floodplains", as
discussed below. This "notification"
provision that the Corps is proposing to
remove is not needed because of
"notification" requirements elsewhere
in these NWPs that the Corps is
retaining.
19. Mitigation
We are proposing to revise this
condition to allow a case-by-case waiver
of the requirement of one-for-one
mitigation of adverse impacts to
wetlands. This change is intended to
allow Corps Districts to require the
mitigation for project impacts that best
protects the aquatic environment. In the
case of wetland destruction, one-for-one
replacement or restoration is often the
most environmentally appropriate form
of mitigation, and the Corps will
continue to require this form of
mitigation in the majority of cases.
However, the Corps believes the one-for-
one acreage requirement as currently
written is too restrictive in that it does
not allow the Corps to mitigate aquatic
impacts to streams and other non-
wetland aquatic resources.
Districts should have flexibility to
require mitigation ratios on a case-by-
case basis based on the aquatic
ecosystem needs of the area. In many
cases, authorized impacts may be in
relatively low quality wetlands and
opportunities may exist for protection,
restoration or enhancement of other,
higher quality aquatic resources.
Districts need the flexibility to
determine the best type and location for
environmentally effective compensatory
mitigation. In order to waive the one-
for-one requirement, the District
Engineer will need to determine that
another form of mitigation is more
environmentally appropriate.
The Corps is retaining in the proposed
General Condition the preference for
restoration of wetlands over
preservation, when one-for-one
mitigation of wetland losses is required.
However, the Corps is aware that some
researchers have questioned the premise
that restoration is generally preferable to
preservation and requests comment on
whether this preference should be
dropped, in order to further facilitate
consideration of the most
environmentally appropriate mitigation
on a project specific basis.
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42081
The aquatic environment must be
looked at in a holistic manner. The
decision on required mitigation should
factor in the total aquatic environmental
assets in an area. In many cases,
vegetated buffers may be more critical
than replacing wetland losses acre for
acre for maintaining the integrity of the
aquatic environment and addressing
water quality concerns. Use of vegetated
buffers is an acceptable and often a
better approach to protecting the
integrity of the overall waters of the US
in a particular area, rather than
mitigating only for wetland losses in-
kind. As discussed earlier in more
detail, the use of vegetated buffers may
be more beneficial as mitigation for
direct or secondary impacts to aquatic
resources associated with the regulated
activity, to some cases, it may be helpful
to evaluate mitigation measures needed
to offset the unavoidable impacts of a
permitted activity using a habitat
functional analysis program, such as the
Habitat Evaluation Program (HEP), the
hydrogeomorphic method (HGM), or
other appropriate model. The results of
the functional assessment may then be
considered in designing the project
mitigation plan. The Corps requests
comments on its proposal to allow a
case-by-case waiver of the one-for-one
wetlands mitigation requirement when
the District Engineer determines that
some other form of mitigation would be
more environmentally appropriate.
21. Management of Water Flows
The Corps is proposing to clarify this
condition. Authorized activities or
improvements to aquatic systems
typically will cause deviation from pre-
construction flow conditions. NWPs
authorize only those activities that will
have minimal adverse effect on the
aquatic system including water flows.
Typically, well-established design
features are included as part of projects
without a need for detailed engineering
studies. State or local agencies often
require these design features.
Consequently, we believe that detailed
studies and monitoring would not
normally be required by this condition.
Where appropriate, the Corps will
review projects to ensure that design
features that address flows are included,
such as limited channelization, proper
design for culverts, and retention ponds,
but generally will not require detailed
studies of post-project flow. However, in
some cases, detailed studies may be
required where there is a potential for
substantial impacts.
26. Fills Within the 100-year Floodplain
The Corps is proposing to modify this
condition to require that all projects
authorized by NWPs must comply with
any applicable Federal Emergency
Management Agency (FEMA) state or
local floodplain management
requirements. We are also proposing to
delete the "notification" requirement
and the requirement to document that
the project meets FEMA approved
requirements. The Corps has found that
requiring applicants to document that
they have met FEMA approved
requirements has done little to change
or enhance compliance with these
requirements. We believe that a General
Condition clearly requiring that
permittees comply with FEMA
approved requirements will be just as
effective. General Condition 26 is
applicable only to discharges of dredged
or fill material in the mapped FEMA
floodway or floodplain (mapping may
be by FEMA or a state or local
government under FEMA rules). For
purposes of this General Condition, 100-
year floodplains will be identified
through the existing or local Flood
Insurance Rate Maps or FEMA-approved
state or local floodplain maps.
For NWPs 12,14 and 29, we believe
that compliance with FEMA-approved
state or local floodplain management
requirements (i.e., part 26(c)),
compliance with General Condition 21
which addresses management of flows,
and case-by-case review by the Corps of
projects through the "notification"
process, will ensure that impacts in
floodplains are adequately addressed.
As such, we propose to remove the
prohibitions in 26(a) and 26(b) for these
three permits. Condition 26(a) prohibits
discharges resulting in above grade fills
in the floodplain below the headwaters,
and 26(b) prohibit discharges resulting
in above grade fills in the floodway
(which is narrower than the floodplain).
We believe District Engineers need
flexibility to address above grade fills in
the floodway/ floodplain for projects
using these three NWPs on a project-
specific basis. The Corps requests
comments on its proposed changes to
this General Condition.
We have retained the prohibition
against using NWPs 39, 40, 42, and 44
in the mapped floodway above the
headwaters (26(b)). We have also
retained the prohibition against
authorizing above grade fills in the
mapped floodplains by NWPs 39, 40,
42,43, and 44 below the headwaters
(26(a)). However, we believe that some
activities authorized by these NWPs
provide additional flood storage
inherent in the project design (e.g., golf
courses). As such, we believe that for
projects increasing flood storage
capacity, some discretion should be
used in the floodplain below
headwaters. We are requesting
comments on allowing projects to
proceed under this condition below
headwaters where the project provides
additional flood storage.
As we have stated earlier in the
preamble, we believe the NWP Program,
with its national, regional and case-by-
case limitations, procedures and
mitigation, and the expanded
requirements that all projects in the
floodplain comply with FEMA
approved management requirements,
fully complies with Executive Order
11988. This includes the "Floodplain
Management Guidelines for
Implementing Executive Order 11988"
' issued by the U.S. Water Resources
Council, and "Further Advice on
Executive Order 11988 Floodplain
Management" issued by the Interagency
Task Force on Floodplain Management.
"Further Advice on Executive Order
11988 Floodplain Management" states
that class review of repetitive actions
proposed in 100-year floodplains can be
conducted in full compliance with
Executive Order 11988. The Corps is
currently conducting a formal review of
the NWPs, and will summarize the
results of this review in the preamble to
the final rule.
27. Construction Period
The NWPs authorize many activities
that have no more than minimal adverse
effects on the aquatic environment and
generally involve projects that need a
relatively short period for construction.
For some projects, obtaining a Corps
permit is one of the many steps
necessary to complete that project. It
may be two, three or more years after
obtaining the Corps permit before the
work can be completed. Under the
existing NWPs, if such projects obtain a
Corps NWP verification near the
expiration date of the NWP, the
permittee can not necessarily rely on
that permit to continue in effect through
the lengthy and costly process of
developing and planning the project.
This causes uncertainty regarding the
NWP authorization for the project
because the construction phase was not
completed before the NWP
authorization expired. Many logistical
issues may delay construction projects
sometimes for considerable periods.
Corps regulations at 33 CFR 330.6(b)
provide that those construction
activities commenced or that are under
contract to commence while an NWP is
in effect will remain authorized,
provided the activity is completed
within 12-months from the date the
NWPs have expired, been modified, or
revoked. This approach was developed
for non-reporting NWP activities to
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provide a period that permittees could
rely on and finish a project that
qualified for a NWP without notifying
the Corps. It was also developed at a
time when NWPs were issued with little
or no changes. The Corps believes that
this provision does not adequately
address NWPs for which the permittee
notifies the Corps before project
commencement.
We are proposing a new General
Condition for activities for which the
Corps has received notification and a
construction schedule has been
reviewed, and verification issued by the
Corps. The condition allows the Corps
to establish project completion dates
beyond the expiration of the NWPs.
District Engineers may extend
authorization of an activity by a NWP
for a reasonable period to allow for
project completion, however always
maintaining discretionary authority
provided in accordance with 33 CFR
330.4(e) and 330.5(c), or (d). If no pre-
approyed construction period is
established then all work must be
c completed before the NWP expires, or is
modified, or revoked, or by 12-months
after if project was commenced or under
contract to commence by that date.
This condition helps eliminate
needless financial or logistical burden to
the regulated public. NWP time limits
unnecessarily restrict authorization to
what may be unreasonable periods for
completion of many construction
activities near the end of the permit
cycle, with no beneficial effects for
protecting the aquatic environment. The
Corps expects each District Engineer to
assess each pre-approved construction
period to identify aquatic areas and/or
activities where the approval of an
extended schedule could lead to
substantial impacts with more than
minimal adverse effects on the aquatic
environment. In cases where approval of
an extended schedule would lead to a
greater than minimal adverse impacts,
an extended schedule will not be
approved. The Corps requests comment
on this new General Condition.
Executive Order 13212Actions To
Expedite Energy-Related Projects
President George W. Bush signed
Executive Order 13212 (66 FR 28357-
28358, May 22,2001) on May 18, 2001,
directing new policy actions to expedite
*the increased supply and availability of
energy to our Nation. This policy
applies to all executive departments and
agencies. The order directs all agencies
to take appropriate actions, to Ihe extent
consistent with applicable law, to
expedite projects that will increase
energy production, transmission, or
conservation of energy, while
maintaining protection of the
environment. For energy-related
projects, agencies shall expedite their
review of permits, or take other actions
as necessary to accelerate the
completion of such projects, while
maintaining safety, public health and
environmental protections. Agencies
shall take such actions to the extent
permitted by law and regulation, and
where appropriate.
General Permits, such as NWPs or
Regional Permits provide us the
opportunity to expeditiously permit
activities that have minimal adverse
effect, both individually and
cumulatively, on .the aquatic
environment. As such, the Corps is
requesting comments to modify or
change the proposed NWPs contained
within this notice, in reference to
Executive Order 13212. We will
consider adopting such modifications or
changes, where appropriate. These
suggestions may be generic to all NWPs,
or for a specific NWP.
Executive Order 13211Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use (Statement of
Energy Effects)
The NWP Program is designed to
regulate certain activities having
minimal impacts with little, if any,
delay or paperwork. NWPs allow
smaller, repetitive, low impact projects
with minimal effects on the aquatic
environment, to be reviewed and
authorized in a shorter period than
larger complex projects that require an
Individual Permit review. Many energy
related projects, such as petroleum
pipelines and electric utility lines, are
expeditiously authorized by Nationwide
Permits. The changes the Corps is
proposing to the Nationwide Permits
will maintain the expedited process for
these energy related projects. Therefore,
the Corps concludes that the proposed
NWPs will not significantly affect the
supply, distribution, and use of energy
and fully complies with Executive
Order 13211.
Accordingly, the Corps is proposing
to reissue the existing Nationwide
Permits and general conditions with
minimal modifications as follows:
Dated: July 23, 2001.
Hans A. Van Winkle,
Major General, U.S. Army, Director of Civil
Works.
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 Maintenance
8. Oil and Gas Structures
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. Hy dropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Stream and Wetland Restoration
Activities
28. Modifications of Existing Marinas
29. Single-family Housing
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. Residential, Commercial, and
Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stonnwater Management Facilities
44. Mining Activities
Nationwide Permit General Conditions
1. Navigation .
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Use of Multiple Nationwide Permits.
16. Water Supply Intakes
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42083
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of WaterFlows
22. Adverse Effects From Impoundments
23. Waterfowl Breeding Areas
24. Removal of Temporary Fills
25. Designated Critical Resource Waters
26. Fills Within 100-year Floodplains
27. Construction Period
Further Information
Definitions
Best Management Practices (BMPs)
Compensatory Mitigation
Creation
Enhancement
Ephemeral Stream
Farm Tract
Flood Fringe
Floodway
Independent Utility
Intermittent Stream
Loss of Waters of the US
Non-tidal Wetland
Open Water.
Perennial Stream
Permanent Above-grade Fill
Preservation
Restoration
Riffle and Pool Complex'
Single and Complete Project
Stormwater Management
Stormwater Management Facilities
Stream Bed
Stream Channelization
Tidal Wetland
Vegetated Buffer
Vegetated Shallows
Waterbody
A. Nationwide Permits
I. 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
(USCG) (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 navigable water of the US
has been previously authorized (see 33
CFR 322.5(g)). (Section 10)
3. Maintenance. Activities related to:
(i) 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 which are necessary to make
repair, rehabilitation, or replacement are
permitted, provided the adverse
environmental effects resulting from
such repair, rehabilitation, or
replacement are minimal. Currently
serviceable means useable as is or with
some maintenance, but not so degraded
as to essentially require reconstruction.
This NWP 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.
(ii) Discharges of dredged or fill
material, including excavation, into all
waters of the US to remove accumulated
sediments and debris in the vicinity of,
and within, existing structures (e.g.,
bridges, culverted road crossings, water
intake structures, etc.) and the
placement of new or additional riprap to
protect the structure, provided the
permittee notifies the District Engineer
in accordance with General Condition
13. 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. The placement of rip
rap must be the minimum necessary to
protect the structure or to ensure the
safety of the structure. All excavated
materials must be deposited and
retained in an upland area unless
otherwise specifically approved by the
District Engineer under separate
authorization. Any bank stabilization
measures not directly associated with
the structure will require a separate
authorization from the District Engineer.
(iii) Discharges of dredged or fill
material, including excavation, into all
waters of the US for activities associated
with the restoration of upland'areas
damaged by a storm, flood, or other
discrete event, including the
construction, placement, or installation
, of upland protection structures and
minor dredging to remove obstructions
in a water of the US. (Uplands lost as
a result of a storm, flood, or other
discrete event can be replaced without
a Section 404 permit provided the
uplands are restored to their original
pre-event location. This NWP is for the
activities in waters of the US associated
with the replacement of the uplands:)
The permittee must notify the District
Engineer, in accordance with General
Condition 13, within 12-months of the
date of the damage and the work must
commence, or be under contract to
commence, within two years of the date
of the damage. The permittee should
provide evidence, such as a recent
topographic survey or photographs, to
justify the extent of the proposed
restoration. The restoration of the
damaged areas cannot exceed the
contours, or ordinary high water mark,
that existed before the damage. 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
permit. Minor dredging to remove
obstructions from the adjacent
waterbody is limited to 50 cubic yards
below the plane of the ordinary high
water mark, and is limited to the
amount necessary to restore the pre-
existing bottom contours of the
waterbody. The dredging may not be
done primarily to obtain fill for any
restoration activities. The discharge of
dredged or fill material and all related
work needed to restore the upland must
be part of a single and complete project.
This permit cannot be used in
conjunction with NWP 18 or NWP 19 to
restore damaged upland areas. This
permit cannot be used to reclaim
historic lands lost, over an extended
period, to normal erosion processes.
This permit does not authorize
maintenance dredging for the primary
purpose of navigation and beach
restoration. This permit does not
authorize new stream channelization or
stream relocation projects. Any work
authorized by this permit must not
cause more than minimal degradation of
water quality, more than minimal
changes to the flow characteristics of the
stream, or increase flooding (See
General Conditions 9 and 21). (Sections
10 and 404)
Note: This NWP authorizes the repair,
.rehabilitation, or replacement of any
previously authorized structure or fill that
does not qualify for the Section 404(f)
exemption for maintenance. For example, the
repair and maintenance of concrete-lined
channels are exempt from Section 404 permit
requirements.
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, clam
and oyster digging; and small fish
attraction devices such as open water
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fish concentrators (sea kites, etc.). This
NWP authorizes shellfish seeding
provided this activity does not occur in
wetlands or 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.).
This NWP does not authorize artificial
reefs or jmpoundments and semi-
impoundments of waters of the US 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 gages, water recording
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 and further for
discharges of 10 to 25 cubic yards
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition.
(Sections 10 and 404)
6. Survey Activities. Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore holes, soil survey,
sampling, and historic resources ,
surveys. 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 is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pads
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 CWA. (Sections 10
and 404) >
7. Outfall Structures and
Maintenance. Activities related to:
(i) construction of outfall structures
and associated intake structures where
tha effluent from the outfall is
authorized, conditionally authorized, or
specifically exempted, or are otherwise
in compliance with regulations issued
under the National Pollutant Discharge
Elimination System Program (Section
402 of the CWA), and
(ii) maintenance excavation,
including dredging, to remove
accumulated sediments blocking or
restricting outfall and intake structures,
, accumulated sediments from small
impoundments associated with outfall
and intake structures, and accumulated
sediments from canals associated with
outfall and intake structures, provided
that the activity meets all of the
following criteria:
a. The permittee notifies the District
Engineer in accordance with General
Condition 13;
b. The amount of excavated or
dredged material must be the minimum
necessary to restore die outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., depth and width);
c. The excavated or dredged material
is deposited and retained at an upland
site, unless otherwise approved by the
District Engineer under separate
authorization; and
d. Proper soil erosion and sediment
control measures are used to minimize
reentry of sediments into waters of the
US.
The construction of intake structures
is not authorized by this NWP, unless
they are directly associated with an
authorized outfall structure. For
maintenance excavation and dredging to
remove accumulated sediments, the
notification must include information
regarding the original design capacities
and configurations of the facility and
the presence of special aquatic sites
(e.g., vegetated shallows) in the vicinity
of the proposed work. (Sections 10 and
404)
8. Oil and Gas Structures. 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
DOI, Minerals Management Service
(MMS). 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(1).
(Where such limits have not been
designated, or where changes are
anticipated, District Engineers will
consider asserting discretionary
authority in accordance with 33 CFR
330.4(e) and will also review such
proposals to ensure they comply with
the provisions of the fairway regulations
in 33 CFR 322.5(1). Any Corps review
under this permit 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 hi EPA or Corps designated
dredged material disposal areas.
(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 USCG 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 and repair of utility lines
and associated facilities in waters of the
US as follows:
(i) Utility lines: 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 US, provided there is no
change in preconstruction 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
(see Note 1, below). Material resulting
from trench excavation may be
temporarily sidecast (up to three
months) into waters of the US, provided
that 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 not to exceed a total of 180 days,
where appropriate. In wetlands, the top
6" to 12" of the trench should normally
be backfilled with topsoil from the
trench. Furthermore, the trench cannot
be constructed in such a manner as to
drain waters of the US (e.g., backfilling
with extensive gravel layers, creating a
french drain effect). For example, utility
line trenches can be backfilled with clay
blocks to ensure that the trench does not
drain the waters of the US through
which the utility line is installed. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line crossing of
each waterbody.
(ii) Utility line substations: The
construction, maintenance, or
expansion of a substation facility
associated with a power line or utility
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42085
line in non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, provided the activity
does not result in the loss of greater than
Vz-acre of non-tidal waters of the US.
(iii) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility line
towers, poles, and anchors in all waters
of the US, 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.
{iv) Access roads: 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,
US, excluding non-tidal wetlands
adjacent to tidal waters, provided the
discharges do not cause the loss of
greater than Vz-acre of non-tidal waters
of the US. Access roads shall be the
minimum width necessary (see Note 2,
below). Access roads must be
constructed so that the length of the
road minimizes the adverse effects on
waters of the US and as near as possible
to preconstruction contours and
elevations (e.g., at grade corduroy roads
or geotextile/gravel roads). Access roads
constructed above preconstruction
contours and elevations in waters of the
US must be properly bridged or
culverted to maintain surface flows.
The term "utility line" does not
include activities which drain a water of
the US, such as drainage tile, or french
drains; however, it does apply to pipes
conveying drainage from another area.
For the purposes of this NWP, the loss
of waters of the US includes the filled
area plus waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. Activities authorized by
paragraph (i) and (iv) may not exceed a
total of Vz-acre loss of waters of the US.
Waters of the US temporarily affected by
filling, flooding, excavation, or drainage,
where the project area is restored to
preconstruction contours and elevation,
is not included in the calculation of
permanent loss of waters of the US. This
includes temporary construction mats
(e.g., timber, steel, geotextile) used
during construction and removed upon
completion of the work. Where certain
functions and values of waters of the US
are permanently adversely affected,
such as the conversion of a forested
wetland to a herbaceous wetland in the
permanently maintained utility line
right-of-way, mitigation will be required
to reduce the adverse effects of the
project to the minimal level.
Mechanized land clearing necessary
for the construction, maintenance, or
repair of utility lines and the
construction, maintenance and
expansion of utility line substations,
foundations for overhead utility lines,
and access roads is authorized, provided
the cleared area is kept to the minimum
necessary and preconstruction contours
are maintained as near as possible. The
area of waters of the US that is filled,
excavated, or flooded must be limited to
the minimum necessary to construct the '
utility line, substations, foundations,
and access roads. Excess material must
be removed to upland areas
immediately upon completion of
construction. This NWP may authorize
utility lines in or affecting navigable
waters of the US even if there is no
associated discharge of dredged or fill
material (See 33 CFR Part 322).
Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13,
if any of the following criteria are met:
(a) Mechanized land clearing in a
forested wetland for the utility line
right-of-way;
(b) A Section 10 permit is required;
(c) The utility line in waters of the
US, excluding overhead lines, exceeds
500 feet;
(d) The utility line is placed within a
jurisdictional area (i.e., water of the US),
and it runs parallel to a stream bed that
is within that jurisdictional area;
(e) Discharges associated with the
construction of utility line substations
that result in the loss of greater than
Vic-acre of waters of the US; or
(f) Permanent access roads
constructed above grade in waters of the
US for a distance of more than 500 feet.
(g) Permanent'access roads
constructed in waters of the US with
impervious materials. (Sections 10 and
404)
Note 1: 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;'except
for pipes or pipelines used to transport
gaseous, liquid, liquescent, or slurry
substances over navigable waters of the US,
which are considered to be bridges, not
utility lines, and may require a permit from
the USCG pursuant to Section 9 of the Rivers
and Harbors Act of 1899. However, any
discharges of dredged or fill material
associated with such pipelines will require a
Corps permit under Section 404.
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 and
the area restored to preconstruction contours,
elevations, and wetland conditions.
Temporary access roads for construction may
be authorized by NWP 33.
Note 3: Where the proposed utility line is
constructed or installed in navigable waters
of the US (i.e., Section 10 waters), copies of
the PCN 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.
13. Bank Stabilization. Bank
stabilization activities necessary for
erosion prevention provided the activity
meets all of the following criteria:
a. No material is placed more than the
minimum needed for erosion protection;
b. The bank stabilization activity is
less than 500 feet in length;
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;
d. No material is placed in any special
aquatic site, including wetlands;
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 wetland area;
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 part of a single and
complete project.
Bank stabilization activities in excess
of 500 feet in length or greater than an
average of one cubic yard per running
foot may be authorized if die permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition 13 and the District
Engineer determines the activity
complies with the other terms and
conditions of the NWP and the adverse
environmental effects are minimal both
individually and cumulatively. This
NWP may not be used for the
channelization of waters of the US.
(Sections 10 and 404)
14. Linear Transportation Projects.
Activities required for the construction,
expansion, modification, or
improvement of linear transportation
crossings (e.g., highways, railways,
'trails, airport runways, and taxiways) in
waters of the US, including wetlands, if
the activity meets the following criteria:
a. This NWP is subject to the
following acreage limits:
(1) For linear transportation projects
in non-tidal waters, provided the
discharge does not cause the loss of
greater wan Vz-acre of waters of the US;
(2) For linear transportation projects
in tidal waters, provided the discharge
does not cause the loss of greater than
'Va-acre of waters of the US.
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b. The permittee must notify the
District Engineer in accordance with
General Condition 13 if any of the
following criteria are met:
(1) The discharge causes the loss of
greater than Vio-acre of waters of the US;
or
(2) There is a discharge in a special
aquatic site, including wetlands;
c. The notification must include a
compensatory mitigation proposal to
offset permanent losses of waters of the
US to ensure that those losses result
only in minimal adverse effects to the
aquatic environment and a statement
describing how temporary losses will be
minimized to the maximum extent
practicable;
d. For discharges in special aquatic
sites, including wetlands, and stream
riffle and pool complexes, the
notification must include a delineation
of the affected special aquatic sites;
e. The width of the fill is limited to
the minimum necessary for the crossing;
f. This permit does not authorize
stream channelization, and the
authorized activities must not cause
more than minimal changes to the
hydraulic flow characteristics of the
stream, increase flooding, or cause more
than minimal degradation of water
quality of any stream (see General
Conditions 9 and 21);
g. This permit 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; and
h. The crossing is a single and
complete project for crossing waters of
the US. Where a road segment (i.e., the "
shortest segment of a road with
independent utility that is part of a
larger project) has multiple crossings of
streams (several single and complete
projects) the Corps will consider
whether it should use its discretionary
authority to require an Individual
Permit. (Sections 10 and 404)
Note: Some discharges for the construction
of form roads, forest roads, or temporary
roads for moving mining equipment may be
ollgiblo for an exemption from the need for
a Section 404 permit (see 33 CFR 323.4).
15. U.S. Coast Guard Approved
Bridges. Discharges of dredged or fill
material incidental to the construction
of bridges across navigable waters of the
US, including cofferdams, abutments,
foundation seals, piers, and temporary
construction and access fills provided
such discharges have been authorized
by the USCG as part of the bridge
permit. Causeways and approach fills
are not included in this NWP and will
require an individual or regional
Section 404 permit. (Section 404)
16. Return Water From Upland
Contained Disposal Areas. Return water
from upland, contained dredged
material disposal area. The dredging
itself may require a Section 404 permit
(33 CFR 323.2(d)), but will require a
Section 10 permit if located in navigable
waters of the US. 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.
(Section 404)
17. Hydropower Projects. Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where the project,
which includes the fill, are licensed by
the Federal Energy Regulatory
Commission (FERC) under the Federal
Power Act of 1920, as amended; and has
a total generating capacity of not more
than 5000 kW; and the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition; or (b) hydropower
projects for which the FERC has granted
an exemption from licensing 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; provided the
permittee notifies the District Engineer
in accordance with the "Notification"
General Condition. (Section 404)
18. Minor Discharges. Minor
discharges of dredged or fill material
into all waters of the US if 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, including any
excavated area, will not cause the loss
of more than Vjo-acre of a special
aquatic site, including wetlands. For the
purposes of this NWP, the acreage
limitation includes the filled area and
excavated area plus special aquatic sites
that are adversely affected by flooding
and special aquatic sites that are
drained so that they would no longer be
a water of the US as a result of the
project;
c. If the discharge, including any
excavated area, exceeds 10 cubic yards
below the plane of the ordinary high
water mark or the high tide line or if the
discharge is in a special aquatic site,
including wetlands, the permittee
notifies the District Engineer in
accordance with the "Notification"
General Condition. For discharges in
special aquatic sites, including
wetlands, the notification must also
include a delineation of affected special
aquatic sites, including wetlands (also
see 33 CFR 330.1(e)); and
d. The discharge, including all
attendant features, both temporary and
permanent, is part of a.single and
complete project and is not placed for
the purpose of a stream diversion.
(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 US (i.e., Section
10 waters) as part of a single and
complete project. 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 US (see 33 CFR
322.5(g)). (Sections 10 and 404)
20. Oil Spill Cleanup. Activities
required for the containment and
cleanup of oil and hazardous substances
which are subject to the National Oil
and Hazardous Substances Pollution
Contingency Plan (40 CFR part 300)
provided that the work is done in
accordance with the Spill Control and
Countermeasure Plan required by 40
CFR part 112.3 and any existing state
contingency plan and provided that the
Regional Response Team (if one exists
in the area) concurs with the proposed
containment and cleanup action.
(Sections 10 and 404)
21. Surface Coal Mining Activities.
Discharges of dredged or fill material
into waters of the US associated with
surface coal mining and reclamation
operations provided the coal mining
activities are authorized by the DOI,
Office of Surface Mining (OSM), or by
states with approved programs under
Title V of the Surface Mining Control
and Reclamation Act of 1977 and
provided the permittee notifies the
District Engineer hi accordance with the
"Notification" General Condition. In
addition, to be authorized by this NWP,
the District Engineer must determine
that the activity complies with the terms
and conditions of the NWP and that the
adverse environmental effects are
minimal both individually and
cumulatively and must notify the
project sponsor of this determination in
writing. The Corps, at the discretion of
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42087
the District Engineer, may require a
bond to ensure success of the
mitigation, if no other Federal or state
agency has required one. For discharges
in special aquatic sites, including
wetlands, and stream riffle and pool
complexes, the notification must also
include a delineation of affected special
aquatic sites, including wetlands, [also
see 33 CFR 330.1(e))
Mitigation: In determining the need
for as well as the level and type of
mitigation, the District Engineer will
ensure no more than minimal adverse
effects to the aquatic environment
occur. As such. District Engineers will
determine on a case-by-case basis the
requirement for adequate mitigation to
ensure the effects to aquatic systems are
minimal. In cases where OSM or the
state has required mitigation for the loss
of aquatic habitat, the Corps may
consider this in determining appropriate
mitigation under Section 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 the removal of
vessels listed or determined eligible for
listing on the National Register of
Historic Places unless the District
Engineer is notified and indicates that
there is compliance with the "Historic
Properties" General Condition. This
NWP does not authorize maintenance
dredging, shoal removal, or riverbank
snagging. Vessel disposal in waters of
the US may need a permit from EPA
(see 40 CFR 229.3). (Sections 10 and
404)
23. Approved Categorical Exclusions.
Activities undertaken, assisted,
authorized, regulated, funded, or
financed, in whole or in part, by another
Federal agency or department where
that agency or department has
determined, pursuant to the Council on
Environmental Quality Regulation for
Implementing the Procedural Provisions
of the National Environmental Policy
Act (NEPA) (40 CFR part 1500 et sea.),
that the activity, work, or discharge 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 the Office
of the Chief of Engineers (ATTN:
CECW-OR) has been furnished notice of
the agency's or department's application
for the categorical exclusion and
concurs with that determination. Before
approval for purposes of this NWP of
any agency's categorical exclusions, the
Chief of Engineers will solicit public
comment. In addressing these
comments, the Chief of Engineers may
require certain conditions for
authorization of an agency's categorical
exclusions under this NWP. (Sections
10 and 404)
24. State Administered Section 404
Program. Any activity permitted by a
state administering its own Section 404
permit program pursuant to 33 U.S.C.
1344(gMl) is permitted pursuant to
Section 10 of the Rivers and Harbors Act
of 1899. Those activities that do not
involve a Section 404 state 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 322.3(a)(2)).
(Section 10)
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 US. (Section
404)
26. [Reserved]
27. Stream and Wetland Restoration
Activities. Activities in waters of the US
associated with the restoration of former
waters, the enhancement of degraded
tidal and non-tidal wetlands and
riparian areas, the creation of tidal and
non-tidal wetlands and riparian areas,
and the restoration and enhancement of
non-tidal streams and non-tidal open
water areas as follows:
(a) The activity is conducted on:
(1) Non-Federal public lands and
private lands, in accordance with the
terms and conditions of a binding
wetland enhancement, restoration, or
creation agreement between the
landowner and the U.S. Fish and
Wildlife Service (FWS) or the Natural
Resources Conservation Service (NRCS)
or voluntary wetland restoration,
enhancement, and creation actions
documented by the NRCS pursuant to
NRCS regulations; or
(2) Reclaimed surface coal mine
lands, in accordance with a Surface
Mining Control and Reclamation Act
permit issued by the OSM or the
applicable state agency (the future
reversion does not apply to streams or
wetlands created, restored, or enhanced
as mitigation for the mining impacts,
nor naturally due to hydrologic or
topographic features, nor for a
mitigation bank); or
(3) Any other public, private or tribal
lands;
(b) Notification: For activities on any
public or private land that are not
described by paragraphs (a)(l) or (a)(2)
above, the permittee must notify the
District Engineer in accordance with
General Condition 13; and
(c) Planting of only native species
should occur on the site.
Activities authorized by this NWP
include, but are not limited to: the
removal of accumulated sediments; the
installation, removal, and maintenance
of small water control structures, dikes,
and berms; the installation of current
deflectors; the enhancement,
restoration, or creation of riffle and pool
stream structure; the placement of in-
stream habitat structures; modifications
of the stream bed and/or banks to
restore or create 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; activities needed to
reestablish vegetation, including
plowing or discing for seed bed
preparation; mechanized land clearing
to remove undesirable vegetation; and
other related activities.
This NWP does not authorize the
conversion of a stream to another
aquatic use, such as the creation of an
impoundment for waterfowl habitat.
This NWP does not authorize stream
channelization. This NWP does not
authorize the conversion of natural
wetlands to another aquatic use, such as
creation of waterfowl impoundments
where a forested wetland previously
existed. However, this NWP authorizes
the relocation of non-tidal waters,
including non-tidal wetlands, on the
project site provided there are net gains
in aquatic resource functions and
values. For example, this NWP may
authorize the creation of an open water
impoundment in a non-tidal emergent
wetland, provided the non-tidal
emergent wetland is replaced by
creating that wetland type on the project
site. 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 creation projects
conducted under paragraphs (a)(3), this
NWP does not authorize any future
discharge of dredged or fill material
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associated with the reversion of the area
to its prior condition. In such cases a
separate permit would be required for
any reversion. For restoration,
enhancement, and creation projects
conducted under paragraphs (a)(l) and
(a)(2), 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 creation
activities). The reversion must occur
within five years after expiration of a
limited term wetland restoration or
creation agreement or permit, even if the
discharge occurs after this NWP expires.
This NWP also authorizes the reversion
of wetlands that were restored,
enhanced, or created on prior-converted
cropland that has not been abandoned,
in accordance with a binding agreement
between the landowner and NRCS or
FWS (even though the restoration,
enhancement, or creation activity did
not require a Section 404 permit). The
five-year reversion limit does not apply
to agreements without time limits
reached under paragraph (a)(l). 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 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 will be at that future date.
(Sections 10 and 404)
Note: Compensatory mitigation'is not
required for activities authorized by this
NWP, provided the authorized work results
in a net increase hi aquatic resource
functions and values in the project area. This
NWP can be used to authorize compensatory
mitigation projects, including mitigation
banks, provided the permittee notifies the
District Engineer in accordance with General
Condition 13, and the project includes
compensatory mitigation for impacts to
waters of the US caused by the authorized
work. However, this NWP does not authorize
the reversion of an area used for a
compensatory mitigation project to its prior
condition. NWP 27 can be used to authorized
impacts at a mitigation bank, but only in
circumstances where it has been approved
under the Interagency Federal Mitigation
Bank Guidelines.
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 land within
waters of the US is authorized by this
NWP. (Section 10)
29. Single-family Housing: Discharges
of dredged or fill material into non-tidal
waters of the US, including non-tidal
wetlands for the construction or
expansion of a single-family home and
attendant features (such as a garage,
driveway, storage shed, and/or septic
field) for an Individual Permittee
provided that the activity meets all of
the following criteria:
a. The discharge does not cause the
loss of more than Vs-acre of non-tidal
waters of the US, including non-tidal
wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition;
c. The permittee has taken all
practicable actions to minimize the on-
site and off-site impacts of the
discharge. For example, the location of
the home may need to be adjusted on-
site to avoid' flooding of adjacent
property owners;
d. The discharge is part of a single
and complete project; furthermore, that
for any subdivision created on or after
November 22,1991, the discharges
authorized under this NWP may not
exceed an aggregate total loss of waters
of the US of Vi-acre for the entire
subdivision;
e. An individual may use this NWP
only for a single-family home for a
personal residence;
f. This NWP may be used only once
per parcel;
g. This NWP may not be used in
conjunction with NWP 14 or NWP 18,
for any parcel; and,
h. Sufficient vegetated buffers must be
maintained adjacent to all open water
bodies, streams, etc., to preclude water
quality degradation due to erosion and
sedimentation.
For the purposes of this NWP, the
acreage of loss of waters of the US
includes the filled area previously
permitted, the proposed filled area, and
any other waters of the US that are
adversely affected by flooding,
excavation, or drainage as a result of the
project. This NWP authorizes activities
only by individuals; for this purpose,
the term "individual" refers to a natural
person and/or a married couple, but
does not include a corporation,
partnership, or similar entity. For the
purposes of this NWP, a parcel of land
is defined as "the entire contiguous
quantity of land in possession of,
recorded as property of, or owned (in
any form of ownership, including land
owned as a partner, corporation, joint
tenant, etc.) by the same individual
(and/or that individual's spouse), and
comprises not only the area of wetlands
sought to be filled, but also all land
contiguous to those wetlands, owned by
the individual (and/or that individual's
spouse) in any form of ownership."
(Section 10 and 404)
30. Moist Soil Management for
Wildlife. Discharges of dredged or fill
material and maintenance activities that
are associated with moist soil
management for wildlife performed on
non-tidal Federally-owned or managed
and state-owned or managed property,
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: The
repair, maintenance or replacement of
existing water control structures; the
repair or maintenance of dikes; and
plowing or discing to impede
succession, prepare seed beds, or
establish fire breaks. Sufficient
vegetated buffers must be maintained
adjacent to all open water bodies,
streams, etc., to preclude water quality
degradation due to erosion and
sedimentation. This NWP does not
authorize the construction of new dikes,
roads, water control structures, etc.
associated with the management areas.
This NWP does not authorize converting
wetlands to uplands, impoundments or
other open water bodies. (Section 404)
31. Maintenance of Existing Flood
Control Facilities. Discharge of dredge
or fill material resulting from activities
associated with the maintenance of
existing flood control facilities,
including debris basins, retention/
detention basins, and channels that
(i) were previously authorized by the
Corps by Individual Permit, General
Permit, by 33 CFR 330.3, or did not
require a permit at the time it was
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. Activities
including the discharges of dredged or
fill materials, associated with
maintenance activities in flood control
facilities in any watercourse that has
previously been determined to be
within the. maintenance baseline, are
authorized under this NWP. The NWP
does not authorize the removal of
sediment and associated vegetation from
the natural water courses except to die
extent that these have been included in
the maintenance baseline. All dredged
material must be placed hi an upland
site or an authorized disposal site in
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42089
waters of the US, and proper siltation
controls must be used. (Activities of any
kind that result in only incidental
fallback, or only the cutting and
removing of vegetation above the
ground, e.g., mowing, rotary cutting,
and chainsawing, where the activity
neither substantially disturbs the root
system nor involves mechanized
pushing, dragging, or other similar
activities that redeposit excavated soil
material, do not require a Section 404
permit in accordance with 33 CFR
323.2(d)(2)(ii)).
Notification: After the maintenance
baseline is established, and before any
maintenance work is conducted, the
permittee must notify the District
Engineer in accordance with the
"Notification" General Condition. The
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.
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. If no evidence of the
constructed capacity exist, the approved
constructed capacity will be used. 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 design capacities
of the flood control facility. The
documentation will also include BMPs
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 can not 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 permit
does not authorize maintenance of a
flood control facility 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 BMPs as appropriate.
Emergency Situations: In emergency
situations, this NWP may be used to
authorize maintenance activities in
flood control facilities for which no
maintenance baseline has been
approved. Emergency situations are
those which would result in an
unacceptable hazard to life, a significant
loss of property, or an immediate,
unforeseen, and significant economic
hardship if action is not taken before a
maintenance baseline can be approved.
In such situations, the determination of
mitigation requirements, if any, may be
deferred until the emergency has been
resolved. Once the emergency has
ended, a maintenance baseline must be
established expeditiously, and
mitigation, including mitigation for
maintenance conducted during the
emergency, must be required as
appropriate. (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 CWA 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 CWA, provided that:
a. The unauthorized activity affected
no more than 5 acres of non-tidal
wetlands or 1 acre of tidal wetlands;
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 U.S.
under Section 404 of the CWA and/or
Section 10 of the Rivers and Harbors Act
of 1899. For either (i) or (ii) above,
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 or fails to complete the work
by the specified completion date. 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 USCG,
or for other construction activities not
subject to the Corps or USCG
regulations. Appropriate measures must
be taken to maintain near normal
downstream flows and to minimize
flooding. Fill must be of materials, and
placed in a manner, that will not be
eroded by expected high flows. The use
of dredged material may be allowed if
it is determined by the District Engineer
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that it will not cause more than minimal
adverse effects on aquatic resources.
Temporary fill must be entirely removed
to upland areas, or dredged material
returned to its original location,
following completion of the
construction activity, and the affected
areas must be restored to the pre-project
conditions. Cofferdams cannot be used
to dewater wetlands or other aquatic
areas to change their use. Structures left
in place after cofferdams are removed
require a Section 10 permit if located in
navigable waters of the US (See 33 CFR
part 322). The permittee must notify the
District Engineer in accordance with the
"Notification" General Condition. The
notification must also include a
restoration plan of reasonable measures
to avoid and minimize adverse effects to
aquatic resources. The District Engineer
will add Special Conditions, where
necessary, to ensure environmental
adverse effects is minimal. Such
conditions may include: limiting the
temporary work to the minimum
necessary; requiring seasonal
restrictions; modifying the restoration
plan; and requiring alternative
construction methods (e.g. construction
mats in wetlands where practicable.).
(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 provided that the activity
meets all of the following criteria:
a. The cumulative total acreage of
disturbance per cranberry production
operation, including but not limited to,
filling, flooding, ditching, or clearing,
does not exceed 10 acres of waters of the
US, including wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition. The
notification must include a delineation
of affected special aquatic sites,
including wetlands; and,
c. The activity does not result in a net
Ibss 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. (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.
Additionally, dredging boat slips to
previously authorized depths or
dredging to controlling depths for
ingress/egress, provided the dredged
material is disposed of at an upland site
and proper siltation controls are used.
(Section 10)
36. Boat Ramps. Activities required
for the construction of boat ramps
provided:
a. The discharge into waters of the US
does not exceed 50 cubic yards of
concrete, rock, crushed stone or gravel
into forms, or placement of pre-cast
concrete planks or slabs, (unsuitable
material that causes unacceptable
chemical pollution or is structurally
unstable is not authorized);
b. The boat ramp does not exceed 20
feet in width;
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.
Another NWP, Regional General
Permit, or Individual Permit may
authorize dredging to provide access to
the boat ramp after obtaining a Section
10 if located in navigable waters of the
US. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation. Work done by or
funded by:
a. The NRCS which is a situation
requiring immediate action under its
emergency Watershed Protection
Program (7 CFR part 624); and
b. Work done or funded by the USFS
under its Burned-Area Emergency
Rehabilitation Handbook (FSH 509.13);
or
c. Work done or funded by the DOI for
wildland fire management burned area
emergency stabilization and
rehabilitation (DOI Manual Part 620, Ch.
3);
For all of the above provisions, the
District Engineer must be notified in
accordance with the General Condition
13. (Also, see 33 CFR 330.1(e)).
(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
provided the permittee notifies the
District Engineer in accordance with the
"Notification" General Condition. For
discharges in special aquatic sites,
including wetlands, the notification
must also include a delineation of
affected special aquatic sites, including
wetlands. 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. 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 CWA or
Section 10 of the Rivers and Harbors
Act. (Sections 10 and 404)
39. Residential, Commercial, and
Institutional Developments. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of residential,
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,
stormwater management facilities, and
recreation facilities such as
playgrounds, playing fields, and golf
courses (provided the golf course is an
integral part of the residential
development). The construction of new
ski areas or oil and gas wells is not
authorized by this NWP.
Residential developments include
multiple and single unit developments.
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 activities
listed above are authorized, provided
the activities meet all of the following
criteria:
a. The discharge does not cause the
loss of greater 'than Vio-acre of non-tidal
waters of die US, excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless this criterion is
waived in writing pursuant to a
determination by the District Engineer,
as specified below, that the project
complies with all terms and conditions
of this NWP and that any adverse
impacts of the project on the aquatic
environment are minimal, both
individually and cumulatively;
c. The permittee must notify the
District Engineer in accordance with
General Condition 13, if any of the
following criteria are met:
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(l) The discharge causes the loss of
greater than Vio-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
(2) The discharge causes the loss of
any open waters, including perennial or
intermittent streams, below the ordinary
high water mark (see Note, below); or
13) The discharge causes the loss of
greater than 300 linear feet of perennial
or intermittent stream bed. hi such case,
to be authorized the District Engineer
must determine that the activity
complies with the other terms and
conditions of the NWP, determine
adverse environmental effects are
minimal both individually and
cumulatively, and waive the limitation
on stream impacts in writing before the
permittee may proceed;
d. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
e. The discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable. The notification,
when required, must include a written
statement explaining how avoidance
and minimization of losses of waters of
the US were achieved on the project
site. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. (See General
Condition 19.) The notification must
also include a compensatory mitigation
proposal for offsetting unavoidable
losses of waters of the US. If an
applicant asserts that the adverse effects
of the project are minimal without
mitigation, then the applicant may
submit justification explaining why
compensatory mitigation should not be
required for the District Engineer's
consideration;
g. When this NWP is used in
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding Vic-acre requires
that the permittee notify the District
Engineer in accordance with General
Condition 13;
h. Any work authorized by this NWP
must not cause more than minimal
degradation of water quality or more
than minimal changes to the flow
characteristics of any stream (see
General Conditions 9 and 21);
i. For discharges causing the loss of
Vio-acre or less of waters of the US, the
permittee must submit a report, within
30 days of completion of the work, to
the District Engineer that contains the
following information: (1) The name,
address, and telephone number of the
permittee; (2) The location of the work;
(3) A description of the work; (4) The
type and acreage of the loss of waters of
the US (e.g., Viz-acre of emergent
wetlands); and (5) The type and acreage
of any compensatory mitigation used to
offset the loss of waters of the US (e.g.,
Viz-acre of emergent wetlands created
on-site); and
j. If there are any open waters or
streams within the project area, the
permittee will establish and maintain, to
the maximum extent practicable,
wetland or upland vegetated buffers
next to those open waters or streams
consistent with General Condition 19.
Deed restrictions, conservation
easements, protective covenants, or
other means of land conservation and
preservation are required to protect and
maintain the vegetated buffers
established on the project site.
Only residential, commercial, and
institutional activities with structures
on the foundation(s) or building pad(s),
as well as the attendant features, are
authorized by this NWP. The
compensatory mitigation proposal that
is required in paragraph (e) of this NWP
may be either conceptual or detailed.
The wetland or upland vegetated buffer
required in paragraph (i) of this NWP
will be determined On a case-by-case .
basis by the District Engineer for
addressing water quality concerns. The
required wetland or upland vegetated
buffer is part of the overall
compensatory mitigation requirement
for this NWP. If the project site was
previously used for agricultural
purposes and the farm owner/operator
used NWP 40 to authorize activities in
waters of the US to increase production
or construct farm buildings, NWP 39
cannot be used by the developer to
authorize additional activities. This is
more than the acreage limit for NWP 39
impacts to waters of the US (i.e., the
combined acreage loss authorized under
NWPs 39 and 40 cannot exceed Vz-acre,
see General Condition 15).
SUBDIVISIONS: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed Vz-acre. This includes any
loss of waters associated with
development of individual subdivision
lots. (Sections 10 and 404)
Note: Areas where wetland vegetation is
not present should be determined hy the
presence or absence of an ordinary high
water mark or bed and bank. Areas that are
waters of the US based on this criterion
would require a PCN although water is
infrequently present in the stream channel
(except for ephemeral waters, which do not
require PCNs).
40. Agricultural Activities, Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for
improving agricultural production and
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 US; and similar
activities, provided the permittee
complies with the following terms and
conditions:
a. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is an United
States Department of Agriculture
(USDA) Program participant:
(1) The permittee must obtain a
categorical minimal effects exemption,
minimal effect exemption, or mitigation
exemption from NRCS in accordance
with the provisions of the Food Security
Act of 1985, as amended (16 U.S.C. 3801
et seq.);
(2) The discharge into non-tidal
wetlands does not result in the loss of
greater than Vz-acre of non-tidal
wetlands on a farm tract;
(3) The permittee must have NRCS-
certified wetland delineation;
(4) The permittee must implement an
NRCS-approved compensatory
mitigation plan that fully offsets
wetland losses, if required; and
(5) The permittee must submit a
report, within 30 days of completion of
the authorized work, to the District
Engineer that contains the following
information: (a) The name, address, and
telephone number of the permittee; (b)
The location of the work; (c) A
description of the work; (d) The type
and acreage (or square feet) of the loss
of wetlands (e.g., Va-acre of emergent
wetlands); and (e) The type, acreage (or
square feet), and location of
compensatory mitigation (e.g. Va-acre of
emergent wetland on farm tract; credits
purchased from a mitigation bank); or
b. For discharges into non-tidal
wetlands to improve agricultural
production, the following criteria must
be met if the permittee is not a USDA
Program participant (or a USDA
Program participant for which the
proposed work does not qualify for
authorization under paragraph (a) of this
NWP):
(1) The discharge into non-tidal
wetlands does not result in the loss of
greater than Vz-acre of non-tidal
wetlands on a farm tract;
(2) The permittee must notify the
District Engineer in accordance with
General Condition 13, if the discharge
results in the loss of greater than
Vio-acre of non-tidal wetlands;
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(3) The notification must include a
delineation of affected wetlands; and
(4) The notification must include a
compensatory mitigation proposal to
offset losses of waters of the US; or
c. For the construction of building
pads for farm buildings, the discharge
does not cause the loss of greater than
Vi-acre of non-tidal wetlands that were
in agricultural production prior to
December 23,1985, (i.e., farmed
wetlands) and the permittee must notify
the District Engineer in accordance with
General Condition 13; and
d. Any activity in other waters of the
US is limited to the relocation of
existing serviceable drainage ditches
constructed in non-tidal streams. This
NWP does not authorize the relocation
of greater than 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless the District
Engineer waives this criterion in
writing, and the District Engineer has
determined that the project complies
with all terms and conditions of this
NWP, and that any adverse impacts of
the project on the aquatic environment
are minimal, both individually and
cumulatively. For impacts exceeding
300-linear feet of impacts to existing
serviceable ditches, the permittee must
notify the District Engineer in
accordance with the "Notification"
General Condition 13; and
e. The term "farm tract" refers to a
parcel of land identified by the Farm
Service Agency. The Corps will identify
other waters of the US on the farm tract.
NRCS will determine if a proposed
agricultural activity meets the terms and
conditions of paragraph a. of this NWP,
except as provided below. For those
activities that require notification, the
District Engineer will determine if a
proposed agricultural activity is
authorized by paragraphs b., c., and/or
d. of this NWP. USDA Program
participants requesting authorization for
discharges of dredged or fill material
into waters of the US authorized by
paragraphs (c) or (d) of this NWP, in
addition to paragraph (a), must notify
the District Engineer in accordance with
General Condition 13 and the District
Engineer will determine if the entire
single and complete project is
authorized by this NWP. Discharges of
dredged or fill material into waters of
the US associated with completing
required compensatory mitigation are
authorized by this NWP. However, total
impacts, including other authorized
impacts under this NWP, may not
exceed the Va-acre limit of this NWP.
This NWP does not affect, or otherwise
regulate, discharges associated with
agricultural activities when the
discharge qualifies for an exemption
under Section 404(f) of the CWA, even
though a categorical minimal effects
exemption, minimal effect exemption,
or mitigation exemption from NRCS
pursuant to the Food Security Act of
1985, as amended, may be required.
Activities authorized by paragraphs a.
through d. may not exceed a total of Vz-
acre on a single farm tract. If the site was
used for agricultural purposes and the
farm owner/operator used either
paragraphs a., b., or c. of this NWP to
authorize activities in waters of the US
to increase agricultural production or
construct farm buildings, and the
current landowner wants to use NWP 39
to authorize residential, commercial, or
industrial development activities in
waters of the US on the site, the
combined acreage loss authorized by
NWPs 39 and 40 cannot exceed Vz-acre
(see General Condition 15). (Section
404)
41. Reshaping Existing Drainage
Ditches. Discharges of dredged or fill
material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, to modify the cross-
sectional configuration of currently
serviceable drainage ditches constructed
in waters of the US. The reshaping of
the ditch cannot increase drainage
capacity beyond the original design
capacity. Nor can it expand the area
drained by the ditch as originally
designed (i.e., the capacity of the ditch
must be the same as originally designed
and it cannot drain additional wetlands
or other waters of the US).
Compensatory mitigation is not required
because the work is designed to improve
water quality (e.g., by regrading the
drainage ditch with gentler slopes,
which can reduce erosion, increase
growth of vegetation, increase uptake of
nutrients and other substances by
vegetation, etc.).
Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13 if
greater than 500 linear feet of drainage
ditch will be reshaped. Material
resulting from excavation may not be
permanently sidecast into waters but
may be temporarily sidecast (up to three
months) into waters of the US, 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
sidecasting not to exceed a total of 180
days, where appropriate. This NWP
does not apply to reshaping drainage
ditches constructed in uplands, since
these areas are not waters of the US, and
thus no permit from the Corps is
required, or to the maintenance of
existing drainage ditches to their
original dimensions and configuration,
which does not require a Section 404
permit (see 33 CFR 323.4(a)(3)). This
NWP does not authorize the relocation
of drainage ditches constructed in
waters of the US; the location of die
centerline of the reshaped drainage
ditch must be approximately the same
as the location of the centerline of the
original drainage ditch. This NWP does
not authorize stream channelization or
stream relocation projects. (Section 404)
42. Recreational Facilities. Discharges
of dredged or fill material into non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters, for the
construction or expansion of
recreational facilities, provided the
activity meets all of the following
criteria:
a. The discharge does not cause the
loss of greater than Vz-acre of non-tidal
waters of the US, excluding non-tidal
wetlands adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless this criterion is
waived in writing pursuant to a
determination by the District Engineer,
as specified below, that the project
complies with all terms and conditions
of this NWP and that any adverse
impacts of the project on the aquatic
environment are minimal, both
individually and cumulatively;
c. The permittee notifies the District
Engineer in accordance with the
"Notification" General Condition 13 for
discharges exceeding 300 linear feet of
impact to perennial or intermittent
stream beds, hi such cases, to be
authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine the adverse
environmental effects are minimal both
individually and cumulatively, and
waive this limitation in writing before
the permittee may proceed;
d. For discharges causing the loss of
greater than 1/10-acre of non-tidal
waters of the US, the permittee notifies
the District Engineer in accordance with
General Condition 13;
e. For discharges hi special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites;
f. The discharge is part of a single and
complete project; and
g. Compensatory mitigation will
normally be required to offset the losses
of waters of the US. The notification
must also include a compensatory
mitigation proposal to offset authorized
losses of waters of the US.
For the purposes of this NWP, the
term "recreational facility" is defined as
a recreational activity that is integrated
into the natural landscape and does not
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42093
substantially change preconstruction
grades or deviate from natural landscape
contours. For the purpose of this permit,
the primary function of recreational
facilities does not include the use of
motor vehicles, buildings, or impervious
surfaces. Examples of recreational
facilities that may be authorized by this
NWP include hiking trails, bike paths,
horse paths, nature centers, and
campgrounds (excluding trailer parks).
This NWP may authorize the
construction or expansion of golf
courses and the expansion of ski areas,
provided the golf course or ski area does
riot substantially deviate from natural
landscape contours. Additionally, these
activities are designed to minimize
adverse effects to waters of the US and
riparian areas through the use of such
practices as integrated pest
management, adequate stormwater
management facilities, vegetated buffers,
reduced fertilizer use, etc. The facility
must have an adequate water quality
management plan in accordance with
General Condition 9, such as a
stormwater management facility, to
ensure that the recreational facility
results in no substantial adverse effects
to water quality. 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. This
NWP does not authorize other
buildings, such as hotels, restaurants,
etc. The construction or expansion of
playing fields (e.g., baseball, soccer, or
football fields), basketball and tennis
courts, racetracks, stadiums, arenas, and
the construction of new ski areas are not
authorized by this NWP. (Section 404)
43. Stormwater Management
Facilities. Discharges of dredged or fill
material into non-tidal waters of the US,
excluding non-tidal wetlands adjacent
to tidal waters, for the construction and
maintenance of stormwater management
facilities, including activities for the
excavation of stormwater ponds/
facilities, detention basins, and
retention basins; the installation and
maintenance of water control structures,
outfall structures and emergency
spillways; and the maintenance
dredging of existing stormwater
management ponds/facilities and
detention and retention basins,
provided the activity meets all of the
following criteria:
a. The discharge for the construction
of new stormwater management
facilities does not cause die loss of
greater than Va-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters;
b. The discharge does not cause the
loss of greater than 300 linear-feet of a
stream bed, unless this criterion is
waived in writing pursuant to a
determination by the District Engineer,
as specified below, that the project
complies with all terms and conditions
of this NWP and that any adverse
impacts of the project on the aquatic
environment are minimal, both
individually and cumulatively;
c. For discharges causing the loss of
greater than 300 linear feet of perennial
or intermittent stream beds, the
permittee notifies the District Engineer
in accordance with the "Notification"
General Condition 13. In such cases, to
be authorized the District Engineer must
determine that the activity complies
with the other terms and conditions of
the NWP, determine the adverse
environmental effects are minimal both
individually and cumulatively, and
waive this limitation in writing before
the permittee may proceed;
d. The discharges of dredged or fill
material for the construction of new
stormwater management facilities in
perennial streams is not authorized;
e. For discharges or excavation for the
construction of new stormwater
management facilities or for the
maintenance of existing stormwater
management facilities causing the loss
of greater than Vio-acre of non-tidal
waters, excluding non-tidal wetlands
adjacent to tidal waters, provided the
permittee notifies the District Engineer
in accordance with the "Notification"
General Condition 13. In addition, the
notification must include:
(1) A maintenance plan. The
maintenance plan should be in
accordance with state and local
requirements, if any such requirements
exist;
(2) For discharges in special aquatic
sites, including wetlands and
submerged aquatic vegetation, the
notification must include a delineation
of affected areas; and
(3) A compensatory mitigation
proposal that offsets the loss of waters
of the US. Maintenance in constructed
areas will not require mitigation
provided such maintenance is
accomplished in designated
maintenance areas and not within
compensatory mitigation areas (i.e.,
District Engineers may designate non-
maintenance areas, normally at the
downstream end of the stormwater
management facility, in existing
stormwater management facilities). (No
mitigation will be required for activities
that are exempt from-Section 404 permit
requirements);
i. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable, and the notification
must include a written statement to the
District Engineer detailing compliance
with this condition (i.e. why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved);
g. The stormwater management
facility must comply with General
Condition 21 and be designed using
BMPs and watershed protection
techniques. Examples may include
forebays (deeper areas at the upstream
end of the stormwater management
facility that would be maintained
through excavation), vegetated buffers,
and siting considerations to minimize
adverse effects to aquatic resources.
Another example of a BMP would be
bioengineering methods incorporated
into the facility design to benefit water
quality and minimize adverse effects to
aquatic resources from storm flows,
especially downstream of the facility,
that provide, to the maximum extent
practicable, for long term aquatic
resource protection and enhancement;
h. Maintenance excavation will be in
accordance with an approved
maintenance plan and will not exceed
the original contours of the facility as
approved and constructed; and
i. The discharge is part of a single and
complete project. (Section 404)
44. Mining Activities. Discharges of
dredged or fill material into:
(i) Isolated waters; streams where the .
annual average flow is 1 cubic foot per
second or less, and non-tidal wetlands
adjacent to headwater streams, for
aggregate mining (i.e., sand, gravel, and
crushed and broken stone) and
associated support'activities;
(ii) Lower perennial streams,
excluding wetlands adjacent to lower
perennial streams, for aggregate mining
activities (support activities in lower
perennial streams or adjacent wetlands
are not authorized by this NWP); and/
or
(iii) Isolated waters and non-tidal
wetlands adjacent to headwater streams,
for hard rock/mineral mining activities
(i.e., extraction of metalliferous ores
from subsurface locations) and
associated support activities, provided
the discharge meets the following
criteria:
a. The mined area within waters of
the US, plus the acreage loss of waters
of the US resulting from support
activities, cannot exceed Vi-acre;
b. The permittee must avoid and
minimize discharges into waters of the
US at the project site to the maximum
extent practicable, and the notification
must include a written statement
detailing compliance with this
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condition (i.e., why the discharge must
occur in waters of the US and why
additional minimization cannot be
achieved);
c. In addition to General Conditions
17 and 20, activities authorized by this
permit must not substantially alter the
sediment characteristics of areas of
concentrated shellfish beds or fish
spawning areas. Normally, the
mandated water quality management
plan should address these impacts;
d. The permittee must implement
necessary measures to prevent increases
in stream gradient and water velocities
and to prevent adverse effects (e.g., head
cutting, bank erosion) to upstream and
downstream channel conditions;
e. Activities authorized by this permit
must not result in adverse effects on the
course, capacity, or condition of
navigable waters of the US;
f. The permittee must use measures to
minimize downstream turbidity;
g. Wetland impacts must be
compensated through mitigation
approved by the Corps;
h. Beneficiation and mineral
processing for hard rock/mineral mining
activities may not occur within 200 feet
of the ordinary high water mark of any
open waterbody. Although the Corps
does not regulate discharges from these
activities, a CWA Section 402 permit
may be required;
i. All activities authorized must
comply with General Conditions 9 and
21. Further, the District Engineer may
require modifications to the required
water quality management plan to
ensure that the authorized work results
in minimal adverse effects to water
quality;
j. Except for aggregate mining
activities in lower perennial streams, no
aggregate mining can occur within
stream beds where the average annual
flow is greater than 1 cubic foot per
second or in waters of the US within
100 feet of the ordinary high water mark
of headwater stream segments where the
average annual flow of the stream is
greater than 1 cubic foot per second
(aggregate mining can occur in areas
immediately adjacent to the ordinary
high water mark of a stream where the
average annual flow is 1 cubic foot per
second or less);
k. Single and complete project: The
discharge must be for a single and
complete project, including support
activities. Discharges of dredged or fill
material into waters of the US for
multiple mining activities on several
designated parcels of a single and
complete mining operation can be
authorized by this NWP provided the
%-acre limit is not exceeded; and
1. Notification: The permittee must
notify the District Engineer in
accordance with General Condition 13.
The notification must include: (1) A
description of waters of the US
adversely affected by the project; (2) A
written statement to the District
Engineer detailing compliance with
paragraph (b), above (i.e., why the
discharge must occur in waters of the
US and why additional minimization
cannot be achieved); (3) A description of
measures taken to ensure that the
proposed work complies with
paragraphs (c) through (f), above; and (4)
A reclamation plan (for aggregate
mining in isolated waters and non-tidal
wetlands adjacent to headwaters and
hard rock/mineral mining only).
This NWP does not authorize hard
rock/mineral mining, including placer
mining, in streams. No hard rock/
mineral mining can occur in waters of
the US within 100 feet of the ordinary
high water mark of headwater streams.
The term's "headwaters" and "isolated
waters" are defined at 33 CFR 330.2(d)
and (e), respectively. For the purposes
of this NWP, the term "lower perennial
stream" is defined as follows: "A stream
in which the gradient is low and water
velocity is slow, there is no tidal
influence, some water flows throughout
the year, and the substrate consists
mainly of sand and mud." (Sections 10
and 404)
C. Nationwide Permit General
Conditions
The following General Conditions
must be followed in order for any
authorization by an NWP to be valid:
1. Navigation. No activity may cause
more than a minimal adverse effect on
navigation.
2. Proper Maintenance. Any structure
or fill authorized shall be properly
maintained, including maintenance to
ensure public safety. ,
3. 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.
4. 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.
5. Equipment. Heavy equipment
working in wetlands must be placed on
mats, or other measures must be taken
to minimize soil disturbance.
6. 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)).
Additionally, any case specific
conditions added by the Corps or by the
state or tribe in its Section 401 Water
Quality Certification and Coastal Zone
Management Act consistency
determination:
7. 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 in the area
(e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management,
U.S. Fish and Wildlife Service).
8. 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.
9. Water Quality, (a) In certain states
and tribal lands an individual 401 Water
Quality Certification must be obtained
or waived (See 33 CFR 330.4(c)j.
(b) For NWPs 12,14,17,18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (eidier
genetically or individually) does not
require or approve water quality
management measures, the permittee
must provide water quality management
measures that will ensure that the
authorized work does not result in more
than minimal degradation of water
quality (or the Corps determines .that
compliance with state or local
standards, where applicable, will ensure
no more than minimal adverse effect on
water quality). An important component
of water quality management includes
stormwater management that minimizes
. degradation of the downstream aquatic
system, including water quality (refer to
General Condition 21 for stormwater
management requirements). Another
important component of water quality
management is the establishment and
.maintenance of vegetated buffers next to
open waters, including streams (refer to
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42095
General Condition 19 for vegetated
buffer requirements for the NWPs).
This condition is only applicable to
projects that have the potential to affect
water quality. While appropriate
measures must be taken, in most cases
it is not necessary to conduct detailed
studies to identify such measures or to
require monitoring.
10. Coastal Zone Management. In
certain states, an individual state coastal
zone management consistency
concurrence must be obtained or waived
(see Section 330.4(d)).
11. Endangered Species, (a) No
activity is authorized under any NWP
which is likely to 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
destroy or adversely modify the critical
habitat of such species. 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 is located in the 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 may affect Federally-listed
endangered or threatened species or
designated critical habitat, the
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.
(b) 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 USFWS or the NMFS, both
lethal and non-lethal "takes" of
protected species are in violation of the
ESA. Information on the location of
threatened and endangered species and
their critical habitat can be obtained
directly from the offices of the USFWS
and NMFS or their world wide web
pages at http://www.fws.gov/r9endspp/
endspp.html and http://www.nfms.gov/
prot_res/esahome.html respectively.
12. Historic Properties. No activity
which may affect historic properties
listed, or eligible for listing, in the
National Register of Historic Places is
authorized, until the District Engineer
has complied with the provisions of 33
CFR Part 325, Appendix C. The
prospective permittee must notify the
District Engineer if the authorized
activity may affect any historic
properties listed, determined to be
eligible, or which the prospective
permittee has reason to believe may be
eligible for listing on the National
Register of Historic Places, and shall not
begin the activity until notified by the
District Engineer that the requirements
of the National Historic Preservation Act
have been satisfied and that the activity
is authorized. Information on the
location and existence of historic
resources can be obtained from the State
Historic Preservation Office and the
National Register of Historic Places (see
33 CFR 330.4(g)J. For activities that may
affect historic properties listed in, or -
eligible for listing in, the National
Register of Historic Places, the
notification must state which historic
property may be affected by the
proposed work or include a vicinity
map indicating the location of the
historic property.
13. Notification. .
(a) Timing; where required by the
terms of the NWP, the prospective
permittee must notify the District
Engineer with a preconstruction
notification (PCN) as early as possible.
The District Engineer must determine if
the notification is complete within 30
days of the date of receipt and can
request additional information
; necessary for the evaluation of the PCN
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 notification is still
incomplete and the PCN review process
will not commence until all of the
requested information has been received
by the District Engineer. The
prospective permittee shall not begin
the activity:
(1) Until 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) If notified in writing by the District
or Division Engineer that an Individual
Permit is required; or
(3) Unless 45 days have passed from
the District Engineer's receipt of the
complete notification and the
prospective permittee has not received-
written notice from the District or
Division Engineer. 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 Notification: The
notification 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) Brief 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.
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 result in a quicker
decision.); and
(4) For NWPs.7,12,14,18, 21, 34, 38,
39, 41, 42, and 43, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
13(f));
(5) For NWP 7 (Outfall Structures and
Maintenance), the PCN must include
information regarding the original
design capacities and configurations of
those areas of the facility where
maintenance dredging or excavation is
proposed.
(6) For NWP 14 (Linear
Transportation Crossings), The PCN
must include a compensatory mitigation
proposal to offset permanent losses of
waters of the US and a statement
describing how temporary losses of
waters of the US will be minimized to
the maximum extent practicable.
(7) For NWP 21 (Surface Coal Mining
Activities), the PCN must include an
Office of Surface Mining (OSM) or state-
approved mitigation plan, if applicable.
18) For NWP 27 (Stream and Wetland
Restoration), the PCN must include
documentation of the prior condition of
the site that will be reverted by the
permittee.
(9) For NWP 29 (Single-Family
Housing), the PCN must also include:
(i) Any past use of this NWP by the
Individual Permittee and/or the
permittee's spouse;
(ii) A statement that the single-family
housing activity is for a personal
residence of the permittee;
(iii) A description of the entire parcel,
including its size, and a delineation of
wetlands. For the purpose of this NWP,
parcels of land measuring Vt-acre or less
will not require a formal on-site
delineation. However, the applicant
shall provide an indication of where the
wetlands are and the amount of
wetlands that exists on the property. For
parcels greater than Vi-acre in size,
formal wetland delineation must be
prepared in accordance with the current
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method required by the Corps. (See
paragraph 13(1));
(iv) A written description of all land
(including, if available, legal
descriptions) owned by the prospective
permittee and/or the prospective
permittee's spouse, within a one mile
radius of the parcel, in any form of
ownership (including any land owned
as a partner, corporation, joint tenant,
co-tenant, or as a tenant-by-the-entirety)
and any land on which a purchase and
sale agreement or other contract for sale
or purchase has been executed;
(10) For NWP 31 (Maintenance of
Existing Flood Control Projects), the
prospective permittee must either notify
the District Engineer with a PCN prior
to each maintenance activity or submit
a five year (or less) maintenance plan.
In addition, the PCN must include all of
the following:
(i) Sufficient baseline information
identifying the approved channel
depths and configurations and existing
facilities. Minor deviations are
authorized, provided the approved flood
control protection or drainage is not
increased;
(ii) A delineation of any affected
special aquatic sites, including
wetlands; and,
(iii) Location of the dredged material
disposal site.
(11) For NWP 33 (Temporary
Construction, Access, and Dewatering),
the PCN must also include a restoration
plan of reasonable measures to avoid
and minimize adverse effects to aquatic
resources.
(12) For NWPs 39, 43 and 44, the PCN
must also include a written statement to
the District Engineer explaining how
avoidance and minimization for losses
of waters of the US were achieved on
the project site.
(13) For NWP 39 and NWP 42, the
PCN must include a compensatory
mitigation proposal to offset losses of
waters of the US or justification
explaining why compensatory
mitigation should not be required.
(14) For NWP 40 (Agricultural
Activities), the PCN must include a
compensatory mitigation proposal to
offset losses of waters of the US.
(15) For NWP 43 (Stormwater
Management Facilities), the PCN must
include, for the construction of new
stormwater management facilities, a
maintenance plan (in accordance with
state and local requirements, if
applicable) and a compensatory
mitigation proposal to offset losses of
waters of the US.
(16) For NWP 44 (Mining Activities),
the PCN must include a description of
all waters of the US adversely affected
by the project, a description of measures
taken to minimize adverse effects to
waters of the US, a description of
measures taken to comply with the
criteria of the NWP, and a reclamation
plan (for all aggregate mining activities
in isolated waters and non-tidal
wetlands adjacent to headwaters and
any hard rock/mineral mining
activities).
(17) For activities that may adversely
affect Federally-listed endangered or
threatened species, the PCN must
include the name(s) of those endangered
or threatened species that may be
affected by the proposed work or utilize
the designated critical habitat that may
be affected by the proposed work.
(18) For activities that may affect
historic properties listed in, or eligible
for listing in, the National Register of
Historic Places, 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.
(c) Form of Notification: The standard
Individual Permit application form
(Form ENG 4345) may be used as the
, notification but must clearly indicate
that it is a PCN and must include all of
the information required in (b) (1)-(18)
of General Condition 13. A letter
containing the requisite information
may also be used.
(d) District Engineer's Decision: 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. The prospective permittee may
submit a proposed mitigation plan with
the PCN to expedite the process. The
District Engineer will consider any
proposed compensatory mitigation the
applicant has included hi the proposal
in determining whether the net adverse
environmental effects to the aquatic
environment of the proposed work are
minimal. 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 is required
to submit a compensatory mitigation
proposal with the PCN, the proposal
may be either conceptual or detailed. 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 days of receiving a complete
PCN and determine whether the
conceptual or specific 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.
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 proposal 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 proposal
that would reduce the adverse effects on
the aquatic environment to the minimal
level. When conceptual mitigation is
included, or a mitigation plan is
required under item (2) above, no work
in waters of the US will occur until the
District Engineer has approved a
specific mitigation plan.
(e) Agency Coordination: 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.
For activities requiring notification to
the District Engineer that result in the
loss of greater than V2-acre of waters of
the US, the District Engineer will
provide immediately (e.g., via facsimile
transmission, overnight mail, or other
expeditious manner) a copy to the
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42097
appropriate Federal or state offices
(USFWS, state natural resource or water
quality agency, EPA, State Historic
Preservation Officer (SHPO), 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 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 notification that the resource
agencies' concerns were considered. As
required by Section 305(b)(4)(B) of the
Magnuson-Stevens Fishery
Conservation and Management Act, the
District Engineer will provide a
response to NMFS within 30 days of
receipt of any Essential Fish Habitat
conservation recommendations.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification.
(f) Wetland Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Corps (For NWP 29 see
paragraph (b)(9)(iii) for parcels less than
Vi-acre in size). The permittee may ask
the Corps to delineate the special
aquatic site. There may be some delay
if the Corps does the delineation.
Furthermore, the 45-day period will not
start until the wetland delineation has
been completed and submitted to the
Corps, where appropriate.
14. Compliance Certification. Every
permittee who has received NWP
verification from the Corps will submit
a signed certification regarding the
completed work and any required
mitigation. The certification will be
forwarded by the Corps with the
authorization letter and will include: (a)
A statement that the authorized work
was done in accordance with the Corps
authorization, including any general or
specific conditions; (b) A statement that
any required mitigation was completed
in accordance with the permit
conditions; and (c) The signature of the
permittee certifying the completion of
the work and mitigation.
15. 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 US authorized by the
NWPs does not exceed the acreage limit
of the NWP with the highest specified
acreage limit (e.g. 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 US for the
total project cannot exceed 1/3-acre).
16. Water Supply Intakes. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
the proximity of a public water supply
intake except where the activity is for
repair of the public water supply intake
structures or adjacent bank stabilization.
17. Shellfish Beds. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may occur in
areas of concentrated shellfish
populations, unless the activity is
directly related to a shellfish harvesting
activity authorized by NWP 4.
18. Suitable Material. No activity,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, may consist
of unsuitable material (e.g., trash,
debris, car bodies, asphalt, etc.) and
material used for construction or
discharged must be free from toxic
pollutants in toxic amounts (see Section
307oftheCWA).
19. Mitigation. The District Engineer
will consider the factors discussed
below when determining the
acceptability of appropriate and
practicable mitigation necessary to
offset adverse effects on the aquatic
environment that are more than
minimal.
(a) The project must be designed and
constructed to avoid and minimize
adverse effects to waters of the US to the
maximum extent practicable at the
project site (i.e., on site).
(o) 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 impacts
requiring a PCN, 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. Consistent with National
policy, the District Engineer will
establish a preference for restoration of
wetlands when permittees are required
to meet the one-for-one compensatory
mitigation ratio, with preservation used
only hi exceptional circumstances.
(d) Compensatory mitigation (i.e.,
replacement or substitution of aquatic
resources for those impacted) will not
be used to increase the acreage losses
allowed by the acreage limits of some of
the NWPs. For example, Vi-acre of
wetlands cannot be created to change a
3/4-acre loss of wetlands to a Vi-acre loss
associated with NWP 39 verification.
However, Vis-acre of created wetlands
can be used to reduce the impacts of a
Vi-acre loss of wetlands to the minimum
impact level in order to meet the
minimal impact requirement associated
with NWPs.
(e) To be practicable, the mitigation
must be available and capable of being
done considering costs, existing
technology, and logistics in light of the
overall project purposes. Examples of
mitigation that may be appropriate and
practicable include, but are not limited
to: reducing the size of the project;
establishing and maintaining wetland or
upland vegetated buffers to protect open
waters such as streams; and replacing
losses of aquatic resource functions and
values by creating, restoring, enhancing,
or preserving similar functions and
values, preferably in the same
watershed.
(f) Compensatory mitigation plans for
projects hi or near streams or other open
waters will normally include a
requirement for the establishment,
maintenance, and legal protection (e.g.,
easements, deed restrictions) of
vegetated buffers to open waters. In
many cases, vegetated buffers will be
the only compensatory mitigation
required. Vegetated buffers should
consist of native species. The width of
the vegetated buffers required will
address documented water quality or
aquatic habitat loss concerns. Normally,
the vegetated buffer will be 25 to 50 feet
wide on each side of the stream, but the
District Engineers may require slightly
wider vegetated buffers to address
documented water quality or habitat
loss concerns. Where both wetlands and
open waters exist on the project site, the
Corps will determine the appropriate
compensatory mitigation (e.g., stream
buffers or wetlands compensation)
based on what is best for the aquatic
environment on a watershed basis. In
cases where vegetated buffers are
determined to be the most appropriate
form of compensatory mitigation, the
District Engineer may waive the
mitigation requirement for wetland
inipacts*
(g) Compensatory mitigation
proposals submitted with the
"notification" may be either conceptual
or detailed. If conceptual plans are
approved under the verification, then
the Corps will condition the verification
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to require detailed plans be submitted
and approved by the Corps prior to
construction of the authorized activity
in waters of the US.
(h) Permittees may propose the use of
mitigation banks, in-lieu fee
arrangements or separate activity-
specific compensatory mitigation. In all
cases that require compensatory
mitigation, the mitigation provisions
will specify the party responsible for
accomplishing and/or complying with
the mitigation plan.
20. Spawning Areas. Activities,
including structures and work in
navigable waters of the US or discharges
of dredged or fill material, in spawning '
areas during spawning seasons must be
avoided to the maximum extent
practicable. Activities that result in the
physical destruction (e.g., excavate, fill,
or smother downstream by substantial
turbidity) of an important spawning area
are not authorized.
21. Management of Water Flows. To
the maximum extent practicable, the
activity must be designed to maintain
preconstruction downstream flow
* conditions (e.g., location, capacity, and
flow rates). Furthermore, the activity
must not permanently restrict or impede
the passage of normal or expected high
flows (unless the primary purpose of the
fill is to impound waters) and the
structure or discharge of dredged or fill
material must withstand expected high
flows. The activity must, to the
maximum extent practicable, provide
for retaining excess flows from the site,
provide for maintaining surface flow
rates from the site similar to
preconstruction conditions, and provide
for not increasing water flows from the
project site, relocating water, or
redirecting water flow beyond
preconstruction conditions. Stream
channelizing will be reduced to the
minimal amount necessary, and the
activity must, to the maximum extent
practicable, reduce adverse effects such
as flooding or erosion downstream and
upstream of the project site, unless the
activity is part of a larger system
designed to manage water flows. In most
cases, it will not be a requirement to
.conduct detailed studies and monitoring
of water flow.
This condition is only applicable to
projects that have the potential to affect
waterflows. While appropriate measures
must be taken, it is not necessary to
conduct detailed studies to identify
such measures or require monitoring to
ensure their effectiveness. Normally, the
Corps will defer to state and local
authorities regarding management of
water flow.
22. Adverse Effects From
Impoundments. If the activity creates an
impoundment of water, adverse effects
to the aquatic system due to the
acceleration of the passage of water,
and/or the restricting its flow shall be
minimized to the maximum extent
practicable. This includes structures
and work in navigable waters bf the US,
or discharges of dredged or fill material.
23. Waterfowl Breeding Areas.
Activities, including structures and
work in navigable waters of the US or
discharges of dredged or fill material,
into breeding areas for migratory
waterfowl must be avoided to the
maximum extent practicable.
24. Removal of Temporary Fills. Any
temporary fills must be removed in their
entirety and the affected areas returned
to their preexisting elevation.
25. Designated Critical Resource
Waters. Critical resource waters include,
NOAA-designated marine sanctuaries,
National Estuarine Research Reserves,
National Wild and Scenic Rivers,
critical habitat for Federally listed
threatened and endangered species,
coral reefs, state natural heritage sites,
and outstanding national resource
waters or other waters officially
designated by a state as having
particular environmental or ecological
significance and identified by the
District Engineer after notice and
opportunity for public comment. The
District Engineer may also designate
additional critical resource waters after
notice and opportunity for comment.
(a) Except as noted below, discharges
of dredged or fill material into waters of
the US are not authorized by NWPs 7,
12,14,16,17, 21, 29, 31, 35, 39,40,42,
43, and 44 for any activity within, or
directly affecting, critical resource
waters, including wetlands adjacent to
such waters. Discharges of dredged or
fill materials into waters of the US may
be authorized by the above NWPs in
National Wild and Scenic Rivers if the
activity complies with General
Condition 7. Further, such discharges
may be authorized in designated critical
habitat for Federally listed threatened or
endangered species if the activity
complies with General Condition 11 and
the USFWS or the NMFS has concurred
in a determination of compliance with
this condition.
(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 13,
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.
26. Fills Within 100-Year Floodplains.
For purposes of this General Condition,
100-year floodplains will be identified
through the existing Federal Emergency
Management Agency's (FEMA) Flood
Insurance Rate Maps or FEMA-approved
local floodplain maps.
(a) Discharges in Floodplain; Below
Headwaters. Discharges of dredged or
fill material into waters of the US within
the mapped 100-year floodplain, below
headwaters (i.e. five cfs), resulting in
permanent above-grade fills, are not
authorized by NWPs 39,40, 42, 43, and
44.
(b) Discharges in Floodway; Above
Headwaters. Discharges of dredged or
fill material into waters of the US within
the FEMA or locally mapped floodway,
resulting in permanent above-grade fills,
are not authorized by NWPs 39,40,42,
and 44.
(c) The permittee must comply with
any applicable FEMA-approved state or
local floodplain management
requirements.
27. Construction Period. For activities
that have not been verified by the Corps
and the project was commenced or
under contract to commence by the
expiration date of the NWP (or
modification or revocation date), the
work must be completed within 12-
months after such date (including any
modification that affects the project).
For activities that have been verified
and the project was commenced or
under contract to commence within the
verification period, the work must be
completed by the date determined by
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date may be
requested. This request must be
submitted at least one month before the
previously approved completion date.
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):
BMPs are policies, practices,
procedures, or structures implemented
to mitigate the adverse environmental
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42099
effects on surface water quality resulting
from development. BMPs are
categorized as structural or non-
structural. A BMP policy may affect the
limits on a development.
Compensatory Mitigation: For
purposes of Section 10/404,
compensatory mitigation is the
restoration, creation, enhancement, or in
exceptional circumstances, preservation
of wetlands and/or other aquatic
resources for the purpose of
compensating for unavoidable adverse
impacts which remain after all
appropriate and practicable avoidance
and minimization has been achieved.
Creation: The establishment of a
wetland or other aquatic resource where
one did not formerly exist.
Enhancement: Activities conducted in
existing wetlands or other aquatic
resources that increase one or more
aquatic functions.
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.
Farm Tract: A unit of contiguous land
under one ownership that is operated as
a farm or part of a farm.
Flood Fringe: That portion of the 100-
year floodplain outside of the floodway
(often referred to as "floodway fringe").
Floodway: The area regulated by
Federal, state, or local requirements to
provide for the discharge of the base
flood so the cumulative increase in
water surface elevation is no more than
a designated amount (not to exceed one
foot as set by the National Flood
Insurance Program) within the 100-year
floodplain.
Independent Utility: A test to
determine what constitutes a single and
complete 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 US: Waters of
the US that include the filled area and
other waters that are permanently
adversely affected by flooding,
excavation, or drainage because of the
regulated activity. Permanent adverse
effects include permanent above-grade,
at-grade, or below-grade fills 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 US is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP. It is
not the net threshold calculated after
considering compensatory mitigation
used to offset losses of aquatic functions
and values. The loss of stream bed
includes the linear feet of perennial or
intermittent stream that is filled or
excavated. Waters of the US temporarily
filled, flooded, excavated, or drained,
but restored to ^reconstruction contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US.
Non-tidal Wetland: A non-tidal
wetland is a wetland (i.e., a Water of the
US) 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: An area that, during a
year with normal patterns of
precipitation, has standing or flowing
water for sufficient duration to establish
an ordinary high water mark. Aquatic
vegetation within the area of standing or
flowing water is non-emergent,
vegetated shallows, sparse, or absent.
This term includes rivers, streams,
lakes, and ponds.
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.
Permanent Above-grade Fill: A
discharge of dredged or fill material into
waters of the US, including wetlands,
that results in a substantial increase in
ground elevation and permanently
converts part or all of the waterbody to
dry land. Structural fills authorized by
NWPs 3, 25, 36, etc. are not included.
Preservation: The protection of
ecologically important wetlands or other
aquatic resources in perpetuity through
the implementation of appropriate legal
and physical mechanisms. Preservation
may include protection of upland areas
adjacent to wetlands as necessary to
ensure protection and/or enhancement
of the overall aquatic ecosystem.
Restoration: Re-establishment of
wetland and/or other aquatic resource
characteristics and function(s) at a site
where they have ceased to exist, or exist
in a substantially degraded state.
Riffle and Pool Complex: Riffle and
pool complexes are special aquatic sites
under the 404(b)(l) 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.
Single ana Complete Project: 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 '
(see definition of independent utility).
For linear projects, the "single and
complete project" (i.e., a single and
complete crossing) will apply to each
crossing of a separate water of the US
(i.e., a single waterbody) at that location.
An exception is 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.
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 BMPs, 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
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Federal Register/Vol. 66, No. 154/Thursday, August 9, 2001/Notices
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 channel to
increase the rate of water flow through
the stream channel. Manipulation may
include deepening, widening,
straightening, armoring, or other
activities that change the stream cross-
SQCtion or other aspects of stream
channel geometry to increase the rate of
water flow through the stream channel.
A channelized stream remains a water
of the US, despite the modifications to
increase the rate of water flow.
Tidal Wetland: A tidal wetland is a
wetland (i.e., water of the US) 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 (i.e., spring high tide line) and are
inundated by tidal waters two times per
lunar month, during spring high tides.
Vegetated Buffer: A vegetated upland
or wetland area next to rivers, streams,
lakes, or other open waters which
separates the open water from
developed areas, including agricultural
land. Vegetated buffers provide a variety
of aquatic habitat functions and values
(e.g., aquatic habitat for fish and other
aquatic organisms, moderation of water.
temperature changes, and detritus for
aquatic food webs) and help improve or
maintain local water quality. A
vegetated buffer can be established by
maintaining an existing vegetated area
or planting native trees, shrubs, and
herbaceous plants on land next to open-
waters. Mowed lawns are not
considered vegetated buffers because
they provide little or no aquatic habitat
functions and values. The establishment
and maintenance of vegetated buffers is
a method of compensatory mitigation
that can be used in conjunction with the
restoration, creation, enhancement, or
preservation of aquatic habitats to
ensure that activities authorized by
NWPs result in minimal adverse effects
to the aquatic environment. (See
General Condition 19.)
Vegetated Shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(l) 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: A waterbody is any area
that in a normal year has water flowing
or standing above ground to the extent
that evidence of an ordinary high water
mark is established. Wetlands
contiguous to the waterbody are
considered part of the waterbody.
[FR Doc. 01-19841 Filed 8-8-01; 8:45 am]
BILLING CODE 3710-92-P
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