Tuesday,
January 15, 2002
Part H
Department of
Defense
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits; Notice
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Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Issuance of Nationwide Permits;
Notice
AGENCY: Army Corps of Engineers, DoD.
ACTION; Final notice.
SUMMARY: The Corps of Engineers is
reissuing all the existing Nationwide
Permits (NWPs), General Conditions,
and definitions with some
modifications, and one new General
Condition. These final NWPs will be
effective on March 18, 2002. All NWPs
except NWPs 7,12,14, 27, 31, 40, 41,
42,43, and 44 expire on February 11,
2002. Existing NWPs 7,12,14, 27, 31,
40,41, 42,43, and 44 expire on March
18, 2002. In order to reduce the
confusion regarding the expiration of
the NWPs and the administrative
burden of reissuing NWPs at different
times, we are issuing all NWPs on the
same date so that they expire on the
same date. Thus, all issued, reissued
and modified NWPs, and General
Conditions contained within this notice
will become effective on March 18, 2002
and expire on March 19, 2007.
DATES: All NWPs and general conditions
will become effective on March 18,
2002. All NWPs have an expiration date
of March 19, 2007.
ADDRESSES: HQUSACE, ATTN: CECW-
OR, 441 "G" Street, NW., Washington,
DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson, at (703) 428-7570, Mr.
Rich White, at (202) 761-4599, or Mr.
Kirk Stark, at (202) 761-4664 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:
Background
In the August 9, 2001 (66 FR 42070),
Federal Register the Corps proposed to
reissue all the existing Nationwide
Permits (NWPs), General Conditions,
and definitions with some
modifications, and one new General
Condition. We proposed to modify
NWPs 14, 21, 27, 31, 37, 39,40, 42, and
43, General Conditions 4,9,13,19, 21,
26, and add a new General Condition
27.
The proposal intended to simplify
and clarify permits that have no more
than minimal effect on the environment,
add additional requirements that will
enhance protection of the aquatic
environment, increase flexibility for the
Corps field staff to target resources
where most needed to protect the
aquatic environment, reduce
unnecessary burdens on the regulated
public, and retain the key protections
for the aquatic environment that were
added last year (e.g. acreage limit of Vz
acre of impact per project, the
requirement for the Corps to be notified
of any impacts over Via acre, and
important limits on impacts within
mapped floodplains).
As a result of the comments received
in response to the August 9, 2001,
Federal Register notices and the public
hearing on September 26, 2001, the
Corps has made a number of changes to
the proposed NWPs and General
Conditions that are designed to further
clarify the permits and strengthen
environmental protection. These
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. hi the March
9, 2000, Federal Register notice (65 FR
1281812899), 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, and
40) would have expired five years from
their effective date of June 7, 2000.
Today the Corps of Engineers is
reissuing all the existing Nationwide ,
Permits (NWPs), General Conditions,
and definitions with some
modifications, and one new General
Condition. These final NWPs will be
effective on March 18, 2002. All NWPs
except NWPs 7, 12,14, 27, 31, 40, 41,
42, 43, and 44 expire on February 11,
2002. Existing NWPs 7,12,14, 27, 31,
40, 41, 42, 43, and 44 expire on March
18, 2002. In order to reduce the
confusion regarding the expiration of
the NWPs and the administrative
burden of reissuing NWPs at different
times, we are issuing all NWPs on the
same date so that they expire on the
same date. Thus, all issued, reissued
and modified NWPs, and General
Conditions contained within this notice
will become effective on March 18, 2002
and expire on March 19, 2007.
Grandfather Provision for Expiring
NWPs at 33 CFR 330.6
Activities authorized by the current
NWPs issued on December 13,1996,
(except NWPs 7,12,14, 27, 31, 40, 41,
42,43, and 44), that have commenced
or are under contract to commence by
February 11, 2002, will have until
February 11, 2003 to complete the
activity. Activities authorized by NWPs
7,12,14, 27, 31, 40, 41, 42, 43, and 44,
that were issued on March 9, 2000, that
are commenced or under contract to
commence by March 18, 2002, will have
until March 18, 2003 to complete the
activity.
Clean Water Act Section 401 Water
Quality Certification (WQC) and
Coastal Zone Management Act (CZMA)
Consistency Agreement
In the August 9, 2001, Federal
Register notice and concurrent with
letters from Corps Districts to the
appropriate state agencies, the Corps
requested 401 certification and CZM
consistency agreement. This began the
Clean Water Act section 401 water
quality certification (WQC) and Coastal
Zone Management Act (CZMA)
consistency agreement processes.
Today's Federal Register notice
provides a 60-day period for the states
to complete the Clean Water Act section
401 water quality certification (WQC)
and Coastal Zone Management Act
(CZMA) consistency agreement
processes. On August 9, 2001, we
proposed to increase the normal 60-day
period to complete the WQC and CZMA
processes to 90 days. However, due to
a majority of the NWPs expiring
February 11, 2001, and schedule delays,
we have had to keep the WQC and
CZMA processes to 60 days. Also during
this 60-day period, Corps divisions and
districts will finalize their regional
conditions for the new and modified
NWPs.
Discussion of Public Comments
I. Overview
In response to the August 9, 2001,
Federal Register notice, we received
more than 2,100 comments. We
reviewed and fully considered all
comments received in response to that
notice.
Many commenters expressed
opposition to the proposed NWPs, but a
few commenters indicated support for
these NWPs. Most of the comments in
opposition of the NWPs were two
versions of identical post cards and a
form letter that objected to proposed
changes to general conditions 19 and 26,
opposed the removal of linear limits for
NWPs 21, 39, 40, 42, 43, and 44, and
requested the withdrawal of NWP 21.
Other commenters said that the NWPs
were too difficult for the public to use,
the NWPs exceeded the Corps
jurisdiction, and the acreage and linear
limits were too low for the NWPs to be
useful. One commenter indicated that
few changes proposed in the August 9,
2001, Federal Register notice will result
in decreased workload for the Corps.
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After considering the comments
received in response to the August 9,
2001, Federal Register notice, we made
several changes to the NWPs, general
conditions, and definitions. These
changes are discussed in detail in the
preamble discussion for each NWP,
general condition, and definition. We do
not agree that the NWPs are too difficult
for the regulated public to use. We have
retained the Vz acre limit for many of
the NWPs, to ensure that those NWPs
authorize only activities with minimal
adverse effects on the aquatic
environment, individually and
cumulatively. We have not adopted the
proposed waiver process for the 300
linear foot limit for perennial streams in
NWPs 39, 40, 42, and 43. We did adopt
the waiver for intermittent streams in
NWPs 39, 40, 42, and 43. NWPs 21 and
44 do not currently have a linear foot
limitation, so the waiver does not apply.
We believe that the changes to the
NWPs will allow the Corps to more
effectively authorize activities with
minimal adverse effects on the aquatic
environment. :
//. General Comments
Many commenters objected to the
NWP proposal, stating that it will place
citizens at risk from flooding, promote
wetland and stream destruction,
degrade water quality, and result in the
loss of critical habitat. Another
commenter indicated that the NWPs
need to be strengthened to ensure that
marine, riparian, and riverine habitats,
and the fish species that depend on
those habitats, are adequately protected
under the NWP process. One
commenter said that the NWPs should
authorize only those activities that have
minimal impacts on water quality. This
commenter said that the NWPs will lead
to piecemealing and result in
cumulative impacts detrimental to
particular waterbodies. A commenter
objected to the NWPs, stating that the
NWPs authorize activities that expand
existing developments. Another
commenter said that the proposed
NWPs will only benefit the
development community and the Corps,
while exposing the public and
environment to unnecessary harm. One
commenter stated that the Corps
proposal to modify the NWPs would
significantly weaken wetlands
protection and severely hamper the
ability of State fish and wildlife
agencies to conserve wetlands and
watersheds.
The terms and conditions of the
NWPs, including the general conditions,
ensure that the activities authorized by
NWPs result in no more than minimal
adverse effects on the aquatic
environment, including wetlands and
streams. General Condition 26, Fills
Within 100-year Floodplains, addresses
the use of certain NWPs to authorize
activities in 100-year floodplains and
ensures that such activities comply with
FEMA-approved State and local
floodplain management requirements.
General Condition 11, Endangered
Species, ensures that activities
authorized by NWPs comply with the
Endangered Species Act. Water quality
certification is required for NWP
activities authorized under section 404
of the Clean Water Act. In addition,
district engineers can require water
quality management measures to ensure
that NWP activities result in no more
than minimal adverse effects on water
quality. NWPs authorize single and
complete projects, and do not result in
piecemealing of projects. District
engineers consider cumulative adverse
effects when reviewing requests for
NWP verifications, including activities
that result in the expansion of existing
developments. The NWPs do not
impede the efforts of State fish and
wildlife agencies to conserve wetlands
and watersheds.
Several commenters asserted that the
NWP program contradicts the clear
intent of Congress to establish a
streamlined general permit process for
activities with minimal adverse effects
on the aquatic environment. A couple of
commenters said that the NWPs regulate
activities that are exempt from the Clean
Water Act and its implementing
regulations. These commenters
requested more consistency between the
NWPs and these statutory exemptions.
One commenter stated that drainage
districts are generally exempt from
permit requirements, including pre-
construction notification (PCN)
requirements. This commenter said that
the NWP conditions and notification
requirements are too costly and could
impair the ability of drainage districts to
meet their obligations to protect citizens
from flooding, and that the drainage
ditches should be exempt from these
regulations. One commenter stated that
the Corps should recognize the
important differences between wetland
landscapes and the protection of non-
aquatic areas that are dominated by
ephemeral drainage systems in the
desert regions of the southwest United
States.
The NWPs provide an expedited
review process for activities in waters of
the United States that result in no more
than minimal individual and
cumulative adverse effects on the
aquatic environment. Although the
NWP program has undergone
substantial changes in recent years, we
believe those changes were necessary to
ensure compliance with section 404(e)
of the Clean Water Act. Section 404(e)
authorizes the Corps to issue general
permits, including NWPs. General
permits authorize activities that are
similar in nature and result in no more
than minimal adverse effects on the
aquatic environment, individually and
cumulatively. The lower acreage limits
and more restrictive terms and
conditions of the NWPs are necessary to
comply with section 404(e).
The NWPs do not regulate activities
that are exempt from the permit
requirements of the Clean Water Act.
Certain activities that are conducted by
drainage districts, such as the
maintenance of drainage ditches, may
be eligible for section 404(f) exemptions
and therefore may not require
authorization from the Corps. The
construction of new drainage ditches
may require a Department of the Army
(DA) permit, if the proposed work
involves discharges of dredged or fill
material into waters of the United States
and/or work in Section 10 waters. The
NWPs do not change the section 404(fJ
exemptions. The NWPs authorize
certain activities that require a DA
permit pursuant to section 10 of the
Rivers and Harbors Act and/or section
404 of the Clean Water Act. Some
NWPs, such as NWPs 3 and 14, contain
references to the section 404(f)
exemptions. Project proponents can
contact district engineers to determine
whether specific activities qualify for
the section 404(f) exemptions.
The NWPs allow district engineers
flexibility when reviewing activities that
involve discharges of dredged or fill
material into ephemeral streams.
Division engineers can regionally
condition the NWPs to restrict or
prohibit specific activities that result in
the loss of ephemeral stream beds, or
require project proponents to notify
district engineers prior to construction
for case-by-case review. The waiver
process for the 300 linear foot limit for
NWPs 39, 40, 42, and 43 allows district
engineers to issue NWP verifications for
activities that result in the loss of greater
than 300 linear feet of intermittent (but
not perennial) stream bed and have no
more than minimal adverse effects on
the aquatkTenvironment.
Several commenters indicated that the
proposed changes to the NWP program
fails to address the significant problems
with the new and modified NWPs that
were published hi the March 9, 2000,
Federal Register (65 FR 12818). Two
commenters stated that the restrictions
in those NWPs have resulted in large
burdens on the transportation
construction industry and planning
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officials. One commenter said that the
elimination of the NWP 26 has resulted
in large increases in delays associated
with obtaining individual permits for
transportation activities that were
authorized by NWP 26. One commenter
stated that these NWPs will result in
longer delays and greater expenses for
simple projects. This commenter said
that NWP 26 should be reinstated to
replace these cumbersome NWPs. One
commenter asserted that the NWPs
result in substantial burdens on the
regulated public. Two commenters
recommended that the Corps improve
the NWP program by increasing acreage
limits, increasing PCN thresholds, and
reducing PCN information
requirements.
The replacement of NWP 26 with
activity-specific NWPs was necessary to
ensure compliance with section 404(e)
of the Clean Water Act. The terms and
conditions of the NWPs published in
the March 9,2000, Federal Register
notice were intended to ensure that the
NWPs authorize only those activities
that result in no more than minimal
adverse effects on the aquatic
environment. We recognize that certain
activities that were previously
authorized by NWPs now require
individual permits, and that it takes
more time to authorize those activities,
including some'transportation projects.
We do not agree that the acreage limits
and PCN thresholds of the NWPs should
be increased, because the lower limits
and thresholds ensure that the NWPs
authorize only activities with no more
than minimal adverse environmental
effects.
One commenter stated that the Corps
data shows that the number of acres of
wetlands created under the mitigation
requirements of the NWP program
exceeds the number of acres permitted
under the program. This commenter
asked why the Corps has failed to do
more to carry out the policies
established in section I01(f) of the Clean
Water Act to minimize paperwork, seek
the best uses of manpower and funds,
and to prevent needless delays at all
levels of government.
The NWP program complies with the
requirements of section 101{fJ of the
Clean Water Act, by providing an
effective means of authorizing activities
with no more than minimal individual
and cumulative adverse effects on the
aquatic environment.
Implementation
One commenter objected to the
NWPs, stating that these permits remove
the public, resource agencies, and the
Corps from the permit review process.
Another commenter said that NWP
activities should be coordinated with
natural resource agencies and the
public. One commenter said that it is
not appropriate for the Corps to rely on
discretionary authority, regional
conditions, and the PCN process to
reduce the adverse impacts to the
aquatic environment to a minimal level.
This commenter stated that regional
conditions are not consistently
implemented across the country or to
the degree necessary to ensure minimal
effects.
The NWPs authorize minor activities
that are usually not controversial and
would result in little or no public or
resource agency comment if they were
reviewed through the standard permit
process. Conducting full public interest
reviews for NWP activities would
substantially increase the Corps
workload without substantial added
value for the aquatic environment. NWP
activities that require notification to the
district engineer and result in the loss
of greater than Vfe acre of waters of the
United States are coordinated with the
appropriate Federal and state agencies
(see paragraph (e) of General Condition
13). Discretionary authority, regional
conditions, and the PCN process are
essential elements of the NWP program,
to ensure that NWP activities result in
no more than minimal adverse effects
on the aquatic environment. In response
to a PCN, a district engineer can add
special conditions to the NWP
authorization to ensure that the activity
will result in no more than minimal
adverse effects on the aquatic
environment. If the proposed work will
result in more than minimal adverse
effects on the aquatic environment,
district engineers can exercise
discretionary authority to require an
individual permit. Regional conditions
are not consistent throughout the
country, because they address
differences.in aquatic resource functions
and values in watersheds or other types
of geographic regions.
One commenter stated that in order to
ensure that the NWPs authorize only
activities with minimal adverse effects
on the aquatic environment, the NWPs
should include a new general condition.
This.general condition would require
public notices in all cases where
notification is required and the
submission of surveys of terrestrial and
aquatic species and cultural and historic
resources that may be affected by the
NWP activity.
We do not agree that the general
condition proposed in the previous
paragraph is practical or necessary.
General Condition 11, Endangered
Species, addresses compliance with the
Endangered Species Act. General
Condition 12, Historic Properties,
addresses compliance with the
requirements of the National Historic
Preservation Act. Project proponents
may be required to provide surveys of
endangered species or cultural resources
to ensure compliance with these general
conditions.
One commenter asserted that there is
an unsubstantiated presumption that
compensatory mitigation in any form
effectively offsets the individual or
cumulative adverse effects of NWP
activities. One commenter indicated
that, due to the small NWP acreage
limits, the Corps has lost the ability to
direct mitigation toward areas that
would provide the most benefits on a
watershed basis. One commenter said
that mitigation should not be used to
ensure that NWP activities result in
minimal adverse effects on the aquatic
environment. This commenter suggested
that avoidance and practicable
alternatives should be emphasized.
Compensatory mitigation is an
important mechanism to ensure that the
activities authorized by NWPs result in
no more than minimal adverse effects
on the aquatic environment,
individually and cumulatively.
Compensatory mitigation can be
provided through individual aquatic
resource restoration, creation,
enhancement, or in exceptional
circumstances, preservation projects, as
well as mitigation banks, in lieu fee
programs, and other types of
consolidated mitigation efforts. General
Condition 19 discusses mitigation for
NWP activities, including the
requirement for project proponents to
avoid and minimize adverse effects on
waters of the United States to the
maximum extent practicable on die
project site.
One commenter objected to the
NWPs,' stating that conditions imposed
on the NWPs are rarely monitored for
compliance. This commenter suggested
that the Corps commit to an aggressive
monitoring and enforcement program
for activities authorized by NWPs.
Another commenter said that the lack of
compliance inspections has resulted in
numerous instances where activities
authorized by NWPs have resulted,
through implementation failures and
intentional violations, in substantial
adverse effects. This commenter
suggested that each NWP should be
subject to a statistically sufficient
number of compliance inspections to
determine whether compliance is being
achieved, and whether the NWP
activities are resulting in more than
minimal individual or cumulative
adverse effects. One commenter said
that enforcement efforts should not be
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weakened. One commenter, stated that
the Corps needs to monitor, and enforce
the national and regional conditions of
theNWPs.
We are committed to strong
enforcement and compliance efforts for
1 activities authorized by DA permits,
including NWPs, but the amount of time
dedicated to enforcement and
compliance is dependent upon the
value of the impacted resource and the
available amount of district resources.
The Corps is increasing its compliance
efforts to further improve compliance.
In consultation with other Federal
agencies, the Corps is currently
finalizing guidance that will address the
need for improved compliance.
One commenter asserted ;that Corps
personnel rarely verify the information
provided in NWP verification requests,
and speculated that projectproponents
may under-report the amount of impacts
to waters of the United States to qualify
for NWP authorization. This commenter
suggested that the Corps commit to
independent verification of the
, information submitted in NWP
verification requests or verify the
information for randomly selected
subsets of verification requests. One
commenter suggested that Corps
produce educational brochures and web
pages that describe the basic
information that must be submitted in
order to ensure that a NWP request is
considered complete.
District personnel review requests for
NWP verifications to determine if the
information provided by the project
proponents is accurate. The level of
review is dependent on the amount of
impacts proposed by the applicant and
the resources available to Cbrps
personnel. Site visits cannot be
conducted for all NWP verification
requests. District personnel utilize their
knowledge of local conditions when
reviewing NWP verification requests to
assess whether the information
provided in the NWP verification
request is accurate. The Corps
Headquarters homepage, see address
above, and Corps district homepages
contain information on the NWPs,
including the NWPs, general conditions,
regional conditions, state 401 and CZM
conditions, and decision documents.
The text of General Condition 13,
Notification, lists the information
necessary for a complete PGN. Several
districts also provide brochures to assist
project proponents who are preparing
permit applications or NWP verification
requests. District home pages on the
Internet also have other information that
is useful for permit applicants.
Acreage Limits
Three cpmmenters suggested that
higher acreage limits should be adopted
for impacts to non-wetland waters and
that district engineers should have the
authority to issue project-specific
waivers to NWP acreage limits. One
commenter said that there should be
higher acreage limits for master planned
communities or similar planned
development projects. One commenter
said that a 500 linear foot limit for
stream impacts should be added to the
NWPs.
We do not agree that higher acreage
limits should be implemented for NWP
activities that result in the loss of non-
wetland waters, or for master planned
development projects. Open waters,
such as streams, ponds, lakes, estuaries,
. and the oceans, are important
components of the overall aquatic
environment and provide valuable
functions and environmental benefits.
We also do not agree that a waiver
process should be implemented for the
acreage limits of NWPs. We do not
believe it is necessary to impose a 500
linear foot limit on all losses of stream
bed authorized by NWPs. The 300 linear
foot limit for NWPs 39, 40, 42, and 43,
and the waiver process for intermittent
streams will ensure that those NWPs
authorize no more than minimal
impacts to stream beds. And such a
limit is not necessary for the other
NWPs. to addition, these acreage limit
suggestions would require notice and
comment, before they could be adopted.
One commenter stated that the
standard permit process does not
necessarily result in additional
avoidance, minimization, or
compensatory mitigation, but causes
substantial project delays, higher costs,
and increased risks to public safety.
Two commenters suggested that the
Co'rps implement an NWP program that
imposes the acreage limits of the 1996
NWPs (i.e., 3 acres) on the activity-
specific NWPs published in the March
9, 2000, Federal Register. A number of
commenters recommended reissuing
NWP 26. One commenter said that the
NWPs are too restrictive and they add
unnecessary administrative burdens
while providing questionable
environmental benefits. Two
commenters said that there is nothing in
the administrative record that indicates
the need for the Vz acre limit. Three
commenters stated that the acreage
limits and PCN thresholds are arbitrary
and capricious and unsupported by
sound science.
The standard permit process can
result in additional avoidance and
minimization because of the Section
404(b)(l) guidelines analysis required
for those standard permit activities that
involve discharges of dredged or fill
material into waters of the United
States. The terms and conditions of the
NWPs, including the Vz acre limit for
many of the NWPs, are necessary to
ensure that the NWPs authorize only
those activities with no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. We do not agree that
NWP 26 should be reinstated, because
the replacement of NWP 26 was
necessary to ensure compliance with
section 404(e) of the Clean Water Act.
One commenter stated that the Vz acre
limit for certain NWPs has dramatically
expanded the scope of the regulatory
program, leading to increased costs and
delays with few demonstrated
environmental benefits. One commenter
asserted that the acreage limits of the
NWPs do not decrease losses of
wetlands because projects are designed
to impact the maximum amount to
avoid the individual permit process.
Several commenters said that the NWP
program is no longer useful to industry
and other regulated entities because the
strict terms and conditions of the NWPs
provide no incentives for project.
proponents to design projects to qualify
for NWP authorization. This commenter
said that there should be more reliance
on regional conditions to ensure that
there is no more than minimal adverse
environmental effects, instead of
unnecessarily restrictive national
conditions. A number of commenters
indicated that impacts on the
environment will increase since few
projects qualify for NWP authorization.
The Vz acre limit for certain NWPs has
not increased the scope of the regulatory
program, although it may result in more
activities requiring individual permits.
The terms and conditions of the NWPs
are necessary to ensure that the NWPs
authorize only those activities that
result in no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. Division
engineers can add regional conditions to
the NWPs to address important aquatic
resource functions and values in
particular geographic areas, but the
terms and national general conditions of
the NWPs are necessary to address
national concerns for the aquatic
environment. The NWP program
encourages avoidance and minimization
of impacts to wetlands, and most project
proponents do not request NWP
authorization to fill the maximum
amount of wetlands under the NWP
acreage limits. General Condition 29
requires project proponents to avoid and
minimize impacts to waters of the
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United States to the maximum extent
practicable on the project site. We
believe that many project proponents
will continue to design their projects to
qualify for authorization under the
NWPs, including avoiding and
minimizing impacts to aquatic resources
on the project site.
Pro-construction Notification Process
One commenter requested that the
Corps reinstate the Va acre PCN
threshold, or demonstrate that a lower
notification threshold is necessary to
ensure that adverse effects on the
aquatic environment are minimal.
The Vio acre PCN threshold for
several of the NWPs is necessary so that
district engineers can review those
activities to ensure that they result in no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. Therefore, we have
retained the Via acre PCN threshold for
certain NWPs. Additionally, the Corps
does not believe the PCN requirements
impose a significant burden on most
project proponents.
A few commenters stated that NWPs
are complex and the PCN process
requires too much time. One commenter
said that the time limit for determining
if a PCN is complete is longer than the
15 day period for determining if a
standard permit application is complete.
This commenter recommended that the
Corps delete the 30 day completeness
review for PCNs. This commenter said
that increasing the PCN review period to
45 days does not comply with the goal
for an expedited permit process, and
makes the NWP process resemble the
standard permit process. One
commenter said that the PCN review
process provides disincentives for
project proponents to design their
projects to qualify for NWP
authorization.
The 45 day PCN review period is
necessary to allow district engineers to
adequately review those activities that
require PCNs. However, most NWP
verifications do not take the full 45
days. The average time to verify a NWP
activity is 19 days. Although the 30 day
completeness review period for PCNs is
less than the 15 day completeness
review period for standard permit
applications, the PCN process allows
more effective authorization of activities
with no more than minimal adverse
effects on the aquatic environment. An
individual activity authorized by an
NWP does not require a public notice or
the same level of review required for a
standard permit activity. Project
proponents requesting NWP
verifications generally receive their
authorizations more quickly than they
would receive standard permits. The 45
day PCN review period includes the 30
day completeness review, and we do not
agree that the 30 day completeness
review period should be deleted. The
completeness review period makes the
PCN process more efficient by requiring
district engineers to request additional
information early in the PCN process. If
a district engineer receives a complete
PCN, then the decision to verify that the
activity is authorized by NWP or
exercise discretionary authority must be
made within 45 days. We do not agree
that the PCN process discourages project
proponents from designing their
projects to qualify for NWP
authorization, because the NWP process
is faster than the standard permit
process.
Compliance With Section 404(e) of the
Clean Water Act and the National
Environmental Policy Act
Several commenters said that the
NWPs do not comply with section
404(e) of the Clean Water Act because
they authorize activities with more than
minimal adverse effects on the aquatic
environment. One commenter asserted
that the NWPs should be limited to
specific uses. Numerous commenters
stated that the NWPs do not comply
with the "similar in nature"
requirement of section 404(e) of the
Clean Water Act.
The terms and conditions of the
NWPs, including the acreage limits and
PCN review process, ensure that the
NWPs authorize only those activities
with no more than minimal individual
and cumulative adverse effects on the
aquatic environment. The NWPs
undergo a thorough review process
every five years to ensure compliance
with the requirements of section 404(e)
of the Clean Water Act. Each of the
NWPs complies with the requirement
for general permits to authorize
activities that are "similar in nature."
One commenter indicated that the
database may not be adequate enough to
warrant the proposed changes to. the
NWPs and said that the Corps cannot
assure the public that the proposed
changes will not result in greater
impacts to waters of the United States.
Another commenter said that the
database to justify the proposed changes
is small compared to the overall age of
the permit program. A few commenters
suggested that the regulations should be
modified to require each Corps district
office to furnish quarterly reports to
each state agency in the district that
would summarize the number, type, and
impacts of activities in waters of the
United States for all NWP verifications
issued. Several commenters said that
the Corps needs to improve its database
for the regulatory program.
The proposed changes to the NWPs
published in the August 9, 2001,
Federal Register will not result in more
than minimal adverse effects on the
aquatic environment. The proposed
modifications are intended to improve
the efficiency of the NWP program, and
enhance protection of important aquatic
resources. We do not agree that it is
necessary to change the Corps
regulations to require districts to
provide states with quarterly reports
concerning the impacts authorized by
all NWP verifications. Corps
headquarters is developing a new data
collection and reporting system to
replace the current system. The new
system will improve data collection for
the regulatory program, and will help
the Corps compile summary data and
evaluate trends. The new data collection
system will improve the reliability of
regulatory program data.
One commenter said that the Corps
has not adequately assessed cumulative
impacts and that virtually no mitigation
has been required because of the smaller
individual impacts of these NWPs.
Another commenter objected to the
NWPs, stating that district engineers
cannot determine the magnitude of
individual and cumulative
environmental impacts. One commenter
said that the NWPs should not be
reissued because cumulative impacts
have not been addressed at a regional or
national level.
We maintain our position that
assessing cumulative impacts across the
nation is not possible or appropriate.
We believe that no assessment of
individual and cumulative impacts can
be made a national level, because the
functions and values of aquatic
, resources vary considerably across the
country. Assessment of cumulative
impacts is more appropriately
conducted by Corps districts on a
watershed basis, because they have
better understanding of local conditions
and processes. However, the NWP
program is designed programmatically
to ensure no more than minimal adverse
effects, individually and cumulatively.
This is accomplished through acreage
limits, the PCN process, regional
conditioning, and the exercise of
discretionary authority to require
.individual permits. Each district
generally tracks losses of waters of the
United States authorized by Department
of the Army permits, including verified
NWPs, as well as required
compensatory mitigation achieved
through aquatic resource restoration,
creation, and enhancement. The
regional conditioning process, including
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2025
the preparation of supplemental
Environmental Assessments by division
engineers, also helps ensure that the
NWPs authorize activities with no more
than minimal adverse effects on the
aquatic environment,, individually and
cumulatively.
One commenter stated that National
Environmental Policy Act (NEPA)
requires the Corps to evaluate the
environmental impacts of every major
Federal action, such as the'issuance of
section 404 permits, that significantly
affects the quality of the human
environment. Several commenters said
that Environmental Impact Statements .
(EISs) are required for the NWPs, at both
the national and district levels. One of
these commenters asserted that these
EISs should examine all reasonable
alternatives to the NWPs, general
conditions, and regional conditions. ,
One commenter said that EISs should be
completed for NWPs 13, 29, 39, 40, 42,
and 44. Two commenters said that
regional conditions for the|NWPs
should not be finalized until an EIS oh
the NWPs is completed. One commenter
expressed disagreement with the
Finding of No Significant Impact
(FONSI) for the NWP program that was
issued on June 23,1998, which stated
that the Corps is not required to do an
EIS for the NWPs. One commenter said
that an EIS is required to demonstrate
compliance with section 404(e) of the ,
Clean Water Act.
We maintain our position that the
NWPs do not require an EIS, even
though we are in the process of
preparing a voluntary programmatic EIS
for the NWP program. Since the NWPs
authorize only those activities that have
no more than minimal adverse effects
on the aquatic environment, the NWP
program does not reach the significance
threshold required for the preparation of
an EIS. The NWPs are subjected to a
reissuance process every five years. This
reissuance process involves a public
notice and comment period, which
provides the Corps with information to
ensure that the NWPs continue to
authorize only those activities with no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. Again, the NWP
program does not reach the level of
significant impacts that requires the
preparation of an EIS. To comply with
NEPA, Corps headquarters,issues an
Environmental Assessment (EA) for
each NWP when it is issued, reissued,
or modified. These EAs consider the
environmental effects of each NWP from
a national perspective. Each Corps
division and district engineer will
supplement these EAs to evaluate
regional environmental effects of the
NWPs. For the reasons above, the NWP
program and the NWPs do not reach the
level of significant impacts that requires
the preparation of an EIS, and in fact are
far below that level.
We do not agree that regional
conditions for the NWPs should not be
finalized until an EIS on the NWPs is
completed. We also believe that the
FONSI for the NWP program that was
issued on June 23,1998, is still valid
despite the changes to the NWPs that
have occurred since the FONSI was
issued. There have been no substantial
changes to the NWP regulations at 33
CFR part 330 or to the implementation
of the NWP program since the FONSI
was issued. The FONSI discussed, in
general terms, the implementation of the
NWP program, including the procedures
used by the Corps to ensure that the
NWPs authorize only those activities
with no more than minimal individual
and cumulative adverse .effects on the
aquatic environment. The Corps is not
required to do an EIS to demonstrate
compliance with section 404(e) of the
Clean Water Act. The decision
. documents issued for each NWP address
compliance with the section 404(b)(l)
guidelines, which require an analysis
for the issuance of general permits (see
40 CFR 230.7). Finally, although not
required to prepare an EIS, the Corps is
preparing a voluntary Programmatic EIS
to assess the NWP Program to see if
there are changes to the NWP program
that would further ensure that there are
no more than minimal adverse effects to
the aquatic environment, individually
and cumulatively. The Programmatic
EIS is discussed below.
One commenter said that the Corps
can not limit its analyses to only those
effects of the NWPs that occur in
jurisdictiorial waters at the location of
the permitted activity. Another
commenter said that an EIS is required
each time an NWP is used to authorize
a private development project.
For the purposes of NEPA and the
Corps regulatory program, the scope of
analysis is limited to address the
impacts of the specific activity requiring
a DA permit and those portions of the
entire project over which the district
engineer has sufficient control and
responsibility to warrant Federal review
(see 33 CFR part 325, Appendix B,
paragraph 7(b)), We do not agree that an
EIS is warranted whenever an NWP is
used to authorize a private development
project, because the NWPs authorize
only those activities that occur within
the Clean Water Act section 404 limited
scope of review and that have no more
than minimal adverse effects on the
aquatic environment.
One commenter stated that the EAs
for the NWPs must contain current data.
Two commenters asserted that the
decision documents, including the EAs
and Statements of Finding, for the
NWPs should be subjected to an agency
coordination and public comment
period before they are finalized.
Another commenter said that the EAs
fail to consider alternatives to the
proposed NWPs. One commenter stated
that the EAs prepared for the NWPs do
not adequately describe or assess the
significant cumulative effects the NWP
program has on the environment. One
commenter recommended that the
Corps issue new EAs for each
nationwide permit to demonstrate
compliance with NEPA. One commenter
objected to the preliminary EAs, stating
that those documents do not
demonstrate an ecological rationale for
the proposed acreage limits of the
NWPs. One commenter stated that the
EAs do not adequately assess potentially
significant environmental impacts of the
NWPs.
We believe it was unnecessary to
make the revised EAs for the NWPs
proposed in the August 9, 2001, Federal
Register available for agency review and
public comment. The EAs for the new
and modified NWPs issued today
discuss, in general terms, the acreage
limits for these NWPs, the types of
waters subject to the new and modified
NWPs, and the functions of those
waters. The EAs also address projected
impacts to waters of the United States
that will occur through the use of these
NWPs. These projected impacts are
based on recent data. The EAs also
contain discussions of alternatives
analyses. Since aquatic resource
functions and values vary considerably
across the country, we cannot include
detailed ecological analyses to support
the acreage limits for these NWPs. In
addition, due to NEPA requirements
concerning the length of environmental
documentation, the EAs for the new and
modified NWPs must be limited to
general discussions of potential impacts.
Division engineers will be issuing
supplemental EAs that will address
regional issues at the district level. The
"Forty Most Frequently Asked
Questions" concerning NEPA developed
by the Council on Environmental
Quality (i.e., Question 36) and the Corps
regulations at 33 CFR part 325,
Appendix B, discuss the recommended
length of EAs. Finally, the changes in '
the new NWPs, relative to the existing
NWPs, are minimal and generally
designed to simplify the permits and
increase protection of the aquatic
environment. EAs for the existing
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permits have been publicly available
since these permits were issued.
A few commenters said that the Corps
must finalize the Programmatic
Environmental Impact Statement (PEIS)
for the NWPs before finalizing the NWP
proposal published in the August 9,
2001, Federal Register. One commenter
stated that the current NWPs should be
extended until the PEIS is completed.
One commenter stated that the draft
PEIS for the NWP program does not
address the specific effects of the NWPs
on listed species, critical habitat or any
other natural resources. Another
commenter said that the draft PEIS lacks
available data to assess the impacts of
the NWP program because the Corps
database is faulty. This commenter
assorted that there should be no
permitting until the Corps can
adequately assess the success or failure
of the regulatory program. One
commenter said that the NWP PEIS does
not provide sound scientific data that
demonstrates that .the NWPs have only
minimal impacts on the environment.
In March 1999 the Corps began
preparation of a voluntary PEIS to
evaluate procedures and processes for
the NWP program. The PEIS will not
address the impacts of any specific
NWPs. The PEIS is not a legally
required EIS. The Council of
Environmental Quality's regulations at
50 CFR1506.1 (c) do not prohibit the
Corps from issuing the NWPs prior to
completing the voluntary PEIS. The
issuance of the NWPs will not preclude
the ability of the Corps to modify the
NWP program or modify individual
NWPs in accordance with any need for
changes identified in the PEIS. The
Corps is in compliance with NEPA
because a FONSIfor the NWP program
was issued on June 23,1998, and the
Corps issues decision documents,
including EAs, for each NWP when the
NWP is issued, reissued, or modified.
Specific comments concerning the PEIS
will be addressed through the PEIS
process.
Jurisdictional Issues
In response to the August 9,2001,
Federal Register notice, we received
numerous comments concerning the
scope of the Corps regulatory authority.
These comments addressed issues such
as excavation activities in waters of the
United States, isolated waters, and
ephemeral streams as waters of the
United States.
One commenter stated that the'Corps
should develop regulations that
accurately reflect the regulatory
exemptions for excavation because all
maintenance activities associated with
any existing structures or fill are exempt
from Section 404 permit requirements.
One commenter stated that the
definition of "loss of waters of the
United States" in the NWPs should be
clarified to exclude excavation. As an
example, this commenter said that if an
activity involves non-jurisdictional
excavation and temporary stockpiling of
excavated material, those activities
should not be included in the
measurement of "loss of waters of the
United States".
In the January 17, 2001, issue of the
Federal Register (66 FR 4550), we
promulgated a final rule that revised the
Clean Water Act regulatory definition of
the term "discharge of dredged
material" to address recent Court
decisions. It is important to note that
not all excavation activities in waters of
the United States result only in
incidental fallback into waters of the
United States. Excavation activities that
result in the redeposit of dredged
-material into waters of the United
States, other than incidental fallback,
require a Section 404 permit. Excavated
material that is temporarily stockpiled
in waters of the United States before it
is removed to a permanent deposit area
requires a Section 404 permit. We have
retained the excavation language in the
new and modified NWPs .and the
definition of "loss of waters of the
United States" because some of these
activities may be authorized by NWPs.
All excavation activities in navigable
waters of the United States require
Section 10 permits, even if those
excavation activities result only in
incidental fallback into Section 10
waters. NWPs issued under Section 10
of the Rivers and Harbors Act may
authorize excavation activities in
navigable waters of the United States.
Two commenters indicated that the
NWPs should be modified to ensure
compliance with the recent Solid Waste
Agency of Northern Cook County v.
United States Army Corps of Engineers
et al. decision (U.S. Supreme Court No.
99-1178).
The Solid Waste Agency of Northern
Cook County v. United States Army
Corps of Engineers et al. decision
related to the scope of CWA jurisdiction
over non-navigable isolated intrastate
waters. The NWPs do not establish
jurisdiction that does not otherwise
exist. They only authorize activities that
require a permit. If an activity does not
require a permit, the NWPs do not
create a requirement for a permit. If an
activity does require a permit and
complies with the terms and conditions
of an NWP, that activity may be
authorized by the NWP.
A couple of commenters suggested
that the Corps needs to improve its
definition of ordinary high water mark
(OHWM) because the current definition,
which is based on physical evidence,
does not provide any criteria regarding
the frequency of flow necessary to
establish an OHWM. These commenters
stated that Corps personnel use the
outermost banks to identify OHWMs,
regardless of how frequently flows
actually inundate the area between
banks. Another commenter stated that
Congress did not intend to extend
Federal jurisdiction to discharges of
dredge or fill material into areas that are
ordinarily dry. This commenter
indicated that a Corps district is
asserting jurisdiction up to the limits of
the 25-year floodplain. This commenter
also suggested that the Corps limit its
jurisdiction to areas with an OHWM
within a less frequently flooded
floodplain and that areas outside of the
1 to 5 year floodplain should not be
considered to be within the OHWMs.
The Corps agrees that we should look
at improving the definition of the
OHWM. This will be the subject of a
separate review. However, no schedule
has been developed for this review. The
frequency and duration at which water
must be present to develop an OHWM
has not been established for the Corps
regulatory program. District engineers
will use their judgment on a case-by-
case basis to determine whether an
OHWM is present. The criteria used to
identify an OHWM are listed in 33 CFR
328.3(e).
Procedural Comments
One commenter said that it was
unreasonable to: (1) Expect the public to
travel to a public hearing to provide
comments on the August 9, 2001,
proposal in a government building in
Washington DC; (2) schedule only one
public hearing; (3) expect public
comments to reach the Corps in a timely
manner when the Federal Register
notice had only a physical address for
receiving public comments; and (4)
expect the public to receive updated
information regarding the rescheduling
of the public hearing because of
computer viruses and the absence of
phone numbers or e-mail addresses in
the Federal Register notice. This
commenter also stated that it was not
reasonable to expect public comments
on proposed NWP regional conditions
to be submitted in a timely manner
because the physical addresses
published in the August 9, 2001,
Federal Register notice contained
errors, the deadline for public comment
on the regional conditions was not
published in the Federal Register, and
the comment period for proposed
regional conditions preceded the
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2027
deadline for public comment published
in the Federal Register notice. This
commenter said that future public
notices by the Corps should include an
electronic mail address, a physical
address, and a telephone number for
submitting of non-electronic comments.
This commenter also asserted that
additional public hearings should be
conducted throughout the country to
provide adequate opportunities for the :
general public to provide public
comment'prior to the reissuance and
modification of the NWPs.
In response to the August 9, 2001,
Federal Register notice announcing the
proposed changes to the NWPs, we
received over 2,100 comments and had
19 people attend the public hearing in
Washington, DC. We believe that the
level of participation is consistent with
other proposals. We understand that the
events on September 11, 2001, has
affected the general public 'and we have
made reasonable efforts to accommodate
the public. In response.to these events, ;
we postponed and rescheduled the
September 12, 2001, public hearing and
extended the 45-day comment period by
15 days. The new date of tne public
hearing and the extension of the
comment period were announced on
our web page at http://
www.usace.army.mil/inet/functions/cw/
cecwo/reg and published in the
September 18, 2001 (66 FR 48121), and
September 21, 2001 (66 FR 48665),
issues of the Federal Register,
respectively. We believe thkt sufficient
time and notice was given to the public
to either participate in the public
hearing or submit written comments. A
physical address, web address that
allowed electronic submittal of
comments, and a telephone number
with a point of contact were included in
the August 9, 2001, September 18, 2001,
and September 21, 2001, issues of the
Federal Register. While some addresses
within the notice may have contained
zip code errors, we continue to provide
the best information possible. We
disagree that additional public hearings
need to be conducted and maintain our
position that we have fully ^complied
with the public hearing requirements of
the Clean Water Act.
One commenter said that the August
9, 2001, Federal Register notice
contained several significant changes to
the NWPs that were not discussed in the
preamble. This commenter Icited the
addition and removal of a particular
word or clauses that may narrow the
protection provided by the terms and
conditions of an NWP, the general
conditions, and the definitions. One
commenter said that NWPs should be
coordinated with state agencies and the
public and that any permit conditions
requested by state agencies should be
incorporated into the NWPs.
The preamble to the August 9, 2001,
Federal Register notice discussed the
substantive changes that we proposed
for the NWPs and general conditions.
We do not believe it was necessary to
explain all minor editing changes to the
NWPs, general conditions, and
definitions in the preamble. However,
there were a few errors in the proposal
that contained some substantive
changes that we did not intend to
propose as changes. These were not
discussed in the proposal and have been
changed back to the original March 9,
2000 language. These errors are
discussed in the discussion of the NWP,
general condition or definition where
they occurred. Each Corps district
issued public notices announcing the
publication of the August 9, 2001,
Federal Register notice for the proposal
to reissue and modify the NWPs. The
district public notice process included
coordination with state agencies and the
public, to solicit their comments on
regional issues related to the reissuance
and modification of the NWPs,
including any proposed regional
conditions. We do not agree that all
conditions requested by state agencies
should be incorporated into regional
conditions. Division engineers approve
only those regional conditions .that are
necessary to ensure that the NWPs
authorize activities with minimal
adverse effects on the aquatic
environment, individually and
cumulatively. However, state and Tribal
Section 401 water Quality Certification
and state Coastal Zone Consistency
conditions are included as conditions to
the NWPs
One commenter said that the August
9, 2001, proposal to reissue and modify
NWPs should have, had information
concerning the cost of administering the
NWP program. This commenter stated
that costs of administering the NWP
program can be reduced by requiring
individual permits for all NWP
activities that result in more than
minimal adverse effects on the aquatic
environment and require mitigation.
Another commenter asserted that the
August 9, 2001, Federal Register notice
should have included statistics on the
current NWP program, such as the .
number of activities authorized by
NWP, the amount of staff time expended
to process NWP verification requests,
and the amount of staff time used for
compliance and enforcement. .
We did not believe it was necessary
to discuss the costs of administering the
NWP program in the August 9, 2001,
Federal Register notice. Requiring
individual permits for all NWP
activities that may result in more than
minimal adverse environmental effects
before consideration of mitigation
would not reduce costs. The individual
permit process is more costly to
implement than the NWP process.
Increasing the number of individual
permits processed by the Corps would
increase the costs to implement the
Corps regulatory program. We do not
agree that it was necessary to include
statistics on the NWP program or the
amount of staff time expended to
implement the NWP program in the
August 9, 2001, notice.
Discretionary Authority
A few commenters objected to the
NWPs because they place a large part of
the responsibility on discretionary
authority at the district and division
levels to reduce the adverse individual
and cumulative effects to the aquatic
environment to a minimal level. One
commenter suggested that more
restrictive national standards on the .
NWPs should be imposed instead of
relying upon the discretionary authority
process. One commenter stated that the
use of discretionary authority needs
further guidance. Another commenter
requested clear criteria district
engineers should use to incorporate
safeguards as a result of discretionary
authority.
We disagree with these commenters
because the PCN and discretionary
authority processes provide substantial
protection for the aquatic environment.
The PCN requirements of the NWPs
allows case-by-case review of activities
that have the potential to result in more
than minimal adverse effects to the
aquatic environment. If the adverse
effects on the aquatic environment are
more than minimal, then a district
engineer can either add special
conditions to the NWP authorization to
ensure that the activity results in no
more than minimal adverse
environmental effects or exercise
discretionary authority to require an
individual permit. We believe that
district engineers are die best qualified
to identify projects or activities at the
local level that may result in more than
minimal adverse effects to the aquatic
environment. In addition, division
engineers can add regional conditions to
the NWPs to lower the PCN threshold or
otherwise further restrict the use of the
NWPs to ensure that the NWPs
authorize only activities with no more
than minimal adverse effects on the
aquatic environment in a particular
watershed or other geographic region.
The functions and values of aquatic
resources differ greatly across the
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country. Therefore, minimal effects '
determinations for proposed NWP
activities should be made at the local
level by district engineers. We do not
agree that guidance concerning the use
of discretionary authority needs to be
developed and implemented at the
national level.
Compliance With the Endangered
Species Act
A couple of commenters said that the
Corps should initiate formal Endangered
Species Act (ESA) consultation for the
NWP program. One commenter
suggested that NWPs be subject to
national and district-level ESA
assessments and formal consultation.
One commenter indicated that the Corps
is violation of section 7 of the ESA for
failing to complete the mandatory
formal consultation process with the
U.S. Fish and Wildlife Service (FWS)
and National Marine Fisheries Service
(NMFS) prior to reissuing and
implementing the NWPs.
The Corps has initiated formal
programmatic ESA consultation with
the U.S. FWS and NMFS for the NWP
program in 1999. A draft Biological
Opinion has been prepared, but a final'
Biological Opinion has not been issued
to date. A section 7(d) determination
that the NWP reissuance will not
foreclose any options has been
prepared. Further, we believe that the
NWPs, through the requirements of
General Condition 11, comply with
ESA. Further where necessary for
specific cases we use the interagency
ESA section 7 consultation regulations
at SO CFR part 402 when determining
compliance with ESA. General
Condition 11 requires a non-federal
permittee to notify the district engineer
If any listed species or designated
critical habitat might be affected or is in
the vicinity of the proposed activity, or
if the proposed work is located in
designated critical habitat. General
Condition 11 also states that the
permittee shall not begin work on the
activity until notified by the district
engineer that the requirements of the
ESA have been satisfied and that die
activity is authorized by NWP. General
Condition 11 further indicates that the
NWP does not authorize the taking of
any endangered species.
A few commenters indicated that
NWPs create cumulative impacts that
affect endangered species. One
commenter suggested that the Corps
prohibit the use of NWPs in proximity
to areas containing habitat that may be
used by threatened or endangered
species. A couple of commenters
objected to General Condition 11,
stating that it places the responsibility
of determining whether a proposed
activity may affect a threatened or
endangered species in the hands of the
prospective permittee.
To address cumulative impacts that
affect endangered species, division
engineers can impose regional
conditions on the NWPs and district
engineers can add case-specific special
conditions to NWP authorizations to
address impacts to endangered or
threatened species or designated critical
habitat. For example, regional
conditions can prohibit the use of NWPs
in certain geographic areas or require
PCNs for all activities in areas inhabited
by endangered or threatened species.
Some Corps districts have conducted
programmatic ESA consultation to
address activities regulated by the Corps
that may affect Federally-listed
endangered or threatened species.
General Condition 11 requires non-
federal permittees to notify the Corps if
any Federally-listed endangered or
threatened species or designated critical
habitat might be affected by the
proposed work. Those activities that
will not affect any Federally-listed
endangered or threatened species or
designated critical habitat do not require
notification to the district engineer. The
regulations at 50 CFR part 402 do not
require ESA consultation for those
activities that will not affect endangered
or threatened species or destroy or
adversely modify designated critical
habitat. The implementation of General
Condition 11, regional conditions, and
case-specific special conditions will
ensure that the NWP program complies
with the ESA.
Regional Conditioning of the
Nationwide Permits
One commenter stated that the
preamble of the August 9, 2001, Federal
Register notice makes it clear that in
taking into account these regional
differences, district engineers can
change notification thresholds or
require notification for all activities
within a particular watershed or
waterbody. This commenter indicated
that district engineers should also have
the discretion to eliminate notification
requirements, increase acreage limits,
add permits, and authorize activities
where the impacts to the environment
will be minimal based upon the regional
conditions.
Division engineers cannot modify the
NWPs by adding regional conditioning
to make the NWPs less restrictive. Only
the Chief of Engineers can modify an
NWP to make it less restrictive, if it is
in the national public interest to do so.
Such a modification must go through a
public notice and comment process.
However, if a Corps district determines
that regional general permits are
necessary for activities not authorized
by NWPs, then that district can develop
and implement regional general permits
to authorize those activities, as long as
those regional general permits comply
with section 404(e) of the Clean Water
Act.
One commenter stated that regional
conditions are not uniformly applied by
district engineers throughout the
country and in some cases can
potentially result in less protection for
the aquatic resources. This commenter
suggested that Corps districts adopt
stronger regional conditions or institute
stronger national conditions. One
commenter agreed that regional
conditions are an essential tool for
protecting valuable aquatic resources
and accounting for differences in
aquatic resource functions and values
across the country. One commenter
stated that regional conditions have
broadened the applicability of NWPs to
make them less protective.
We believe that imposing more
restrictive national terms and
limitations on the NWPs is unnecessary.
The terms and conditions of the NWPs
published in this Federal Register
notice, the PCN process, and the
regional conditioning process will
ensure that the NWPs authorize
activities with no more than minimal
adverse effects on the aquatic
environment, individually and
cumulatively. It is far more efficient to
develop NWPs that authorize most
activities that have no more than
minimal adverse effects on the aquatic
environment and provide division and
district engineers with the authority to
limit the use of these NWPs. through
discretionary authority or by adding
conditions to the NWPs.
For particular regions of the country
or specific waterbodies where
additional safeguards are necessary to
ensure that the NWPs authorize only
those activities with no more than
minimal adverse effects, regional
conditions are the appropriate
mechanism to address those concerns.
For example, regional conditions can
restrict the use of NWPs in high value
waters for those activities that do not
require submission of a PCN. Division
and district engineers axe much more
knowledgeable about local aquatic
resource functions and values and can
prohibit or limit the use of the NWPs in
these waters. We believe that regional
conditioning of the NWPs provides
effective protection for high value
wetlands and other aquatic habitats.
One commenter stated that NWPs .
could affect treaty and other Indian
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2029
rights and would like to consult with
the Corps on a government to
government basis to develop regional or
national conditions that will address the
concerns. One commenter
recommended regional conditions that
would require notification of Tribes and
provide appropriate Tribes with the
opportunity to comment on particular
NWP activities. '
We believe that General Condition 8,
Tribal Rights, addresses the issue of
tribal rights and the use of NWPs.
Division and district engineers can
consult with Tribes to develop regional
conditions that will ensure that tribal
rights are adequately addressed by the
NWP process. Division engineers can
regionally condition the NWPs to
require coordination with Tribes when
proposed NWP activities may affect
Tribal lands or trust resources.
One commenter said that regional
conditions should be developed for all
NWPs to conserve Essential Fish
Habitat. A couple of commenters
indicated that NWPs should not be used
in any areas that have been ranked as
high value wetlands or critical resource
waters. One commenter indicated that
NWPs should not be used to authorize
Section 10 and Section 404 activities in
the Lower Hudson River. One
commenter indicated that regional
conditions are troubling because there
are no central, definitive sources for
information concerning those
conditions;
We'agree that regional conditions are
an effective mechanism to'help ensure
that the NWPs comply with the
Essential Fish Habitat provisions of the
Magnuson-Stevens Fishery
Conservation and Management Act. We
require division and district engineers
to coordinate with regional offices of the
National Marine Fisheries Service to
develop and implement regional
conditions to conserve Essential Fish
Habitat. Areas with high value wetlands
or critical resource waters can be
subjected to regional conditions, to
ensure that activities authorized by
NWPs do not result in more than
minimal adverse effects tolthose waters.
General Condition 25 addresses the use
of certain NWPs in designated critical
resource waters. This general condition
states that district engineers can
designate additional critical resource
waters after notice and opportunity for
public comment. The Corps has a
general map of Corps division and
district boundaries that is available on
the Internet at http:// -
www.usace.army.mil/ '
where.htmHtDivisions. This interactive
map also provides links to the home
pages of Corps districts. Due to the scale
of this map and since some Corps
district boundaries are based on
watershed boundaries, prospective
permittees should contact the nearest
Corps district office to determine which
Corps district will review then1 PCN,
permit application. Most Corps districts
post their regional conditions on their
Internet home pages..
One commenter stated that the last
paragraph on page 42070 of the August
9, 2001, Federal Register notice
contains an incorrect statement. This
paragraph states that: "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
ensure that NWP use and authorization
only occurs for activities with minimal
adverse effects, individually and
cumulatively." This commenter said
that district engineers can only
recommend regional conditions and that
regional conditions must be approved
by division engineers.
This commenter is correct, because
regional conditions must be approved
by division engineers after a public
notice and comment period. District
engineers can propose regional
conditions at any time, but the division
engineer must approve those regional
conditions before they become effective.
Water Quality Certification/Coastal
Zone Management Act Consistency
Determination Issues
One commenter suggested that
agencies should work together to make
early agreements on certification
conditions or denials of certification by
states and tribes under section 401 of
the Clean Water Act and section 307 of
. the Coastal Zone Management Act
(CZMA). This would improve protection
of the aquatic resources, benefit the
regulated community, and reduce
duplication of workload. Some
commenters indicated that NWPs
should be conditioned to prohibit
construction by an applicant until all
state and local permits are issued. A few
commenters stated that the Corps
should not issue a provisional NWP
verification letter if the state denies
Water Quality Certification because
local regulators are easily persuaded to
issue their permit.
We encourage States and Tribes to
coordinate with Corps districts to
complete and expedite water quality
certification (WQC) and coastal zone
certificationlor the NWPs. The
proposed changes to the NWPs that
were announced in the August 9, 2001,
Federal Register notice are minor, and
we believe that the proposed changes
will not substantially affect the water
quality certification and coastal zone
consistency determination processes.
Concurrent with the publication of the
August 9, 2001, Federal Register notice,
Corps districts and divisions were
required to issue public notices to
solicit comments on proposed regional
conditions and initiate coordination
with states and Tribes for the purposes
of WQC and CZMA consistency
determinations. The NWPs published in
today's Federal Register notice have not
been extensively modified from the
proposal published in the August 9,
2001, Federal Register. These NWPs
will become effective in 60 days. Since
there have been few changes to the
proposed NWPs, we believe that 60 days
is sufficient time for states and Tribes to
complete their WQC and CZMA
consistency determinations. We believe
that it is incumbent upon the Corps to
let the applicant know when we have
completed the Corps review and what
the Corps decision is. It is up to the
applicant to get the required individual
State 401 water quality certification
from the state, where the state has
denied a water quality certification for
the NWP as a whole.
Discussion of Comments and Final
Permit Decisions
Nationwide Permits
The following is a discussion of the
public comments received on the
proposed nationwide permits and our
final decisions regarding the NWPs, the
general conditions, and the definitions.
The Corps prepared decision documents
on each of the NWPs, which are
available on the Corps web site,
indicated above. Following the
discussion of the public comments are
the final NWPs, the final general
conditions, and die final definitions.
I. Aids to Navigation. There were no
changes proposed to this nationwide
permit. Since there were no comments
on this nationwide permit. The
nationwide permit is reissued without
change.
2. Structures in Artificial Canals.
There were no changes proposed to this
nationwide permit. There were no
comments on this nationwide permit.
The nationwide permit is reissued
without change.
3. Maintenance. We did not propose
any change to this nationwide permit.
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However, there were several comments
on this NWP. One commenter suggested
that 'terms' should be applied to
maintenance of all flood protection
works that the Corps built in
partnership with the State, and that are
now maintained by local entities or by
ourselves.
We presume that this comment refers
to "term limits" on the time that may
elapse between maintenance events in
flood protection projects. Although this
idea may have merit in the context of
the original project authorization, or
with respect to maintenance agreements
with local sponsors, we do not believe '
that such limits can or should be
imposed through NWP 3. We do not
intend this NWP to encourage or compel
maintenance activities to be conducted
more frequently than is necessary.
However, the eligibility requirements of
NWP 3(i) do encourage maintenance to
be conducted before the structure or fill
falls into such a state of disrepair that
it can no longer be considered
"serviceable."
Another commenter expressed the
opinion that NWP 3 addressed activities
that are exempt from regulations under
section 404(f)(i) of the Clean Water Act
This is not correct. NWP 3 does not,
in any way, extend Clean Water Act or
River and Harbor Act jurisdiction to any
area or activity that is not subject to
these laws. Any activity that is exempt
does not require a permit for the Corps
including NWP 3.
One commenter suggested that while
bioengineered' projects are less
environmentally damaging than riprap
and offer benefits to salmon, the
presence of wood in some bank
protection structures has the potential to
interfere with treaty fishing access by
preventing the use of nets in areas.
Another commenter stated that Tribes
should be informed of all requests for
this NWP that involve in-water work
and granted 30 days to provide
comments.
General Condition 8, Tribal Rights,
does not allow an activity or its
operation to impair reserved tribal
rights, including but not limited to,
reserved water rights and treaty fishing
and hunting rights. Compliance with the
general condition for NWP 3 regarding
interference with treaty fishing rights, or
other tribal rights, and the
determination of any relevant and
necessary modification of this NWP is
the responsibility of our Division and
District offices.
One commenter suggested that riprap
should not be allowed in any waterbody
where habitat-forming processes are
limited, as identified by a state or
federal watershed analysis for salmon
and/or their habitat, and where the
riprap would interfere with these
processes. This commenter also
suggested that the placement of riprap
should be the minimum necessary to
protect the structure.
We believe that NWP 3, as proposed,
will limit the placement of riprap to the
minimum necessary to provide adequate
erosion protection. However, applicable
law does not impose any restriction
related to the habitat-forming processes
mentioned by this commenter. In light
of this, we believe that it would be
inappropriate to impose such a policy
under any Corps permit process.
Although the consideration of such
concerns may be proper in the context
of authorizations for new work, we do
not agree that it should be a compelling
consideration in the context of the kinds
of maintenance activities that are
eligible for authorization under this
NWP.
One commenter suggested that the
Corps prohibit the addition of new
riprap or, at a minimum, require
"Notification" if new riprap is
proposed, and that the Corps prohibit
the placement of riprap or any other
bank stabilization material in any
special aquatic site, including wetlands.
Another commenter stated the permit
should prohibit "removal of
accumulated sediments" in special
aquatic sites.
Since this NWP only authorizes
activities that restore an area to its
previous condition, we do not believe it
is appropriate to prohibit the
maintenance of structures or fills simply
because a special aquatic'site may have
formed in areas that require such repair.
Similarly, with respect to the discharge
of riprap or other bank stabilization
materials, we do not believe that
restoration of banks or of stabilization
projects, within the limits of NWP 3,
should be precluded by the presence of
a special aquatic site.
One commenter suggested that this
NWP should not be issued for
maintenance work on culverts that fail
to meet appropriate standards for the
upstream and downstream passage .of
fish, or issued for culverts that do not
allow for the downstream passage of
substrate and wood. This commenter
also suggested that if the proposed
action is to remove the build-up of
substrate at the upstream end of the
culvert, or from the culvert itself, a
condition of the permit should be that
all substrate of spawning size and all
wood of any size should be placed at the
downstream end of the culvert.
We do not believe there are any
national standards that we can apply to
NWP 3 to assure that an adequate
passage for fish and substrate materials
is provided in the maintenance
situations that can be authorized under
this NWP. However, we agree that, to
the extent that actions to enhance'such
fish and substrate passage can be
incorporated into individual NWP 3
authorizations, they should be included
as best management practices. We will
encourage Corps districts to consider
this issue when approving maintenance
of culverts. Any redeposit of excavated
spawning-size substrate may be
authorized under NWP 18, but is subject
to the limitations of that NWP
Several commenters indicated the
Corps should withdraw section (iii) as
the dredging and discharge allowed is
double that authorized by NWPs 18 and
19 and, as such, will result in greater
than minimal adverse effects. Several
commenters also offered the opinion
that restoring upland areas damaged by
a storm, etc., has nothing to do with
maintaining currently serviceable
structures. Furthermore, some
commenters suggested that it may be
difficult to determine if the "damage" is
due to a discreet event after a two-year
period. Additionally, there is no acreage
limit for this section and placement of
"upland protection structures" will
result in changes in the upstream and
downstream hydromorphology of a
stream.
We do not agree that the mere fact
that the amount of the dredging or
discharge authorized under this NWP,
as compared to the authorization of
similar activities under other NWPs, in
any way indicates that the effects are
more than minimal. The question of
whether or not restoring upland areas
has anything to do with maintaining
currently serviceable structures is not
relevant to the consideration of this
NWP since no such relationship is
required by the permit itself, or by the
regulations governing the issuance of
such permits. We do agree that, in some
cases, it may be difficult to determine
whether any damage is due to a discrete
event. For this reason, the NWP
prescribes only limited criteria in this
regard, and it affords considerable
discretion to the District Engineer to
determine when there is a reasonable
indication that the damage being
repaired qualifies for authorization
under NWP 3.
Two commenters indicated the permit
can be used to expand the scope of other
NWPs, including 13,18,19 and 31
which could result in more than
minimal impact to the environment.
General condition 15 addresses the
use of multiple NWPs for a project. This
condition provides that more than one
NWP can only be used if the acreage lost
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2031
does not exceed the acreage limit of the
NWP with the highest specified acreage
limit. Normally, when NWPs are
combined for a project, the combined
impacts are no more than minimal. We
rely on our District offices to provide
reasonable final assurance that the use
of one or more NWPs, as they are
applied in actual situations, do not
result in more than minimal impacts.
Districts have discretionary authority to
require individual permits in situations
where there is reason to believe that any
NWP, individually or in combination
with other NWPs, will result in more -
than minimal impacts.
One commenter suggested that the '
permit (inappropriately) encourages
reconstruction in floodplains without
questioning the need or desirability of
doing so. !
We believe that, inherent in the
authorization of a structure or fill, is the
reasonable right to maintain those
structures or fills. With respect to the
kinds of activities that are eligible for
authorization under NWP 3, we do not
agree that an assessment of need or "
desirability, is appropriate or necessary
to ensure that the relevant effects are no
more than minimal, including the
effects on the floodplain.
Several.commenters stated the lack of
a definition of "discreet event" ignores
the natural, hydrological processes at
work in stream systems and allows
landowners to prevent natural '
meandering processes within a
waterway caused by normal storm
events.
On^the contrary, NWP 3 clearly
recognizes that maintenance may be
required either as a result of a discrete
event such as a storm, or as a result of
non-discrete forces. However, we do not
agree that landowners should be
prevented or unduly constrained from
maintaining legitimately constructed
structures or fills that are subject to the
effects of natural hydrologic processes
of adjoining waters.
A couple of commenters stated
allowing riprap and gabions will result
in the permanent channelization of
natural streams by inhibiting their
natural movement within the floodplain
with major direct and secondary effects
to the aquatic environment, as well as
adverse hydrologic affects to
downstream properties.
Since NWP 3 only authorizes
activities that repair or return a project
to previously existing conditions, we do
not believe that it will result in any
effects that did not previously accrue
from the existence of the original
structure or fill, and we believe that the
maintenance activities authorized under
this NWP will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. -
One commenter stated that NWP 3(i)
should be modified to also allow for the
maintenance of existing structures or fill
that did not require a permit at the time
they were constructed.
NWP 31 does authorize regulated
activities related to the repair,
rehabilitation, or replacement of
structures or-fills that did not require
authorization at the time they were
constructed. As referenced in NWP 3(i),
the regulations at 33 CFR 330.3 provide
an elaboration on this point.
One commenter suggested that NWP
3(ii) should be modified to allow the
Corps District Engineer to waive the
200' limitation in any direction from the
structure when the aquatic resource
impacts would remain minimal: It
should also specify that areas that are
only excavated with only incidental
fallback, temporary stockpile areas, and
temporary redeposits should not be
included in the 200' limitation since
such impacts would not cause a loss of
waters of the US.
It is entirely reasonable to conclude
that regulated discharges associated
with the removal of accumulated
sediments that occur more than 200 feet
from a certain structure may have no
more than minimal effects. However*
our intent in qualifying such removal
for eligibility under NWP was to
authorize them as part of the
maintenance of a specific structure, and
not simply because the effects were no
more than minimal. Although we
cannot certify that 200 feet is, in any
way, an absolute distance within which
removals are clearly associated with the
maintenance of the structure, we believe
that it is a reasonable distance for
asserting such association for the
purposes of this NWP. Incidental
fallback associated with otherwise
unregulated activities is not regulated
under section 404 Of the Clean Water
Act or under section 10 of the Rivers
and Harbors Act. Temporary stockpiles
and other temporary discharges of
dredged or fill materials in waters of the
US are regulated, but we believe that
they can and should be avoided in most
maintenance situations. Although they
may not result in a permanent or net
loss of waters of the US, and they may
have no more than minimal adverse
effects on the aquatic environment, we
do not believe that they are necessary in
most cases. They can also lead to
discharges of pollutants into waters of
the US that may or may not have
minimal adverse effects, depending oil
the circumstances. For these reasons, we "
are not including such activities among
those eligible for authorization under
NWPS.
One commenter suggested that NWP
3(iii) should be modified to allow the
Corps District Engineer to waive the
limitation which states that dredging
may not be done primarily to obtain fill
for restorative purposes when the
aquatic resource impacts would remain
minimal.or when it is environmentally
advantageous to allow some
modification of pre-existing contours or
discharges of additional fill material to
prevent recurring damage and the
associated repeated disturbance to
continually repair the damage. This
commenter further suggested that the
District Engineer could then exercise
more discretion in terms of requiring
watershed based mitigation banks and
in-lieu fee programs for additional
impacts while requiring mitigation at a
site of superior watershed importance.
This NWP focuses on the repair and
restoration of currently serviceable
structures and not on the source of such
material. We are not convinced that
allowing dredging to obtain the fill
material would normally have no more
than minimal impacts unless there were
also detailed listing of dredging
limitations and conditions. Further, to
establish such limitations we would
need to provide opportunity for public
review and comment. In light of this, we
do not agree that the suggested
expansion of this NWP is appropriate.
This NWP does allow some minor
deviation, but modifications that are
more than minor deviations cannot be
considered to be "maintenance" as it is
envisioned in this NWP and, depending
on the nature and location of such
prospective changes, separate
authorization may be required.
One commenter stated-that
individuals should not be able to use
this Nationwide Permit to increase the
area impacted by bank stabilization
structures.
NWP 3 does not authorize any
significant increase in the original
structure or fill. Only minor deviations
that are necessary to effect .repairs are
eligible for authorization under this
NWP.
One commenter insisted the
notification requirement should be
removed from NWP 3(ii) and NWP 3(iii)
as these requirements create additional
administrative burden with no increase
in environmental protection or added
value to the process. For NWP 3(iii), the
commenter suggested that the
requirement should be changed to a
post-construction notification in order
to expedite repairs necessary to public
infrastructure.
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We believe that these PCN
requirements, as proposed, are a
prudent means of assuring that the
proposed maintenance activities are
limited to those eligible for
authorization under this NWP. We
recognize that the PCN requirement
imposes an additional burden on the
project proponent, but we do not believe
that it is inequitable or, in most
circumstances, substantial. Emergency
permit procedures are available to
authorize such maintenance activities
more quickly in emergency situations.
One commenter suggested that NWP 3
should be withdrawn as it is too broad
for projects to be considered "similar in
nature", or to be able to determine that
the various projects, when considered
individually or cumulatively, will result
in minimal adverse environmental
effects. The commenter also felt that its
limitations are arbitrary and capricious
and potentially could result in the
exposure of highly toxic compounds.
We believe that NWP 3, as proposed,
describes activities that are .sufficiently
similar in nature for the purposes of the
NWP Program. Since this NWP only
authorizes activities needed to return a
project to a previously existing
condition that either was authorized or
that was implemented prior to the need
for authorization, we do not agree that
the effects will be more than minimal.
One commenter stated the Corps is
unlikely to obtain adequate information
on whether or not a change in use is
contemplated, what the practicable
alternatives are, or what materials are
used unless an Individual Permit is
required. In light of this, the commenter
suggested that NWP 3 should be
rewritten to prevent serious and
widespread abuses.
We acknowledge that under this NWP
we rely on the applicant's information
on the intended use and on other
aspects of the regulated activity. Since
this NWP only authorizes activities that
would return a project to previously
existing conditions, we believe that the
likelihood of serious or widespread
abuses is exceedingly low. Further, we
have the authority and use our authority
to enforce compliance with permits,
where necessary. The nationwide
permit is reissued without change.
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices
and Activities. There were no changes
proposed to this nationwide permit.
There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
5. Scientific Measurement Devices.
There were no changes proposed to this
nationwide permit. One commenter
stated the word "primarily" should be
replaced with the word "solely". We
believe that this change would
unnecessarily restrict the NWP and
require an individual permit in a few
cases, simply because there was a
secondary use or benefit of the scientific
devise. Further, we do not believe that
the requirement for an individual
permit, for that reason, would result in
any added value for the environmental.
The nationwide permit is reissued
without change.
6. Survey Activities. There were no
changes proposed to this nationwide
permit. There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
7. Outfall Structures and
Maintenance. There were no changes
proposed to this nationwide permit.
One commenter suggested that
notification should be limited.to
impacts greater than one acre, and that
the District Engineer should have the
authority to quickly issue this permit,
without agency notification, by placing
conditions limiting construction
activities to periods of low-flow or no-
flow in unvegetated ephemeral
watercourses. Another commenter
indicated the Corps should withdraw
NWP 7(ii) since NWP 19 already
provides for minor dredging, or limit the
amount of material to be excavated to 25
cubic yards in order to be consistent
with NWP 19.
The Corps believes that the
limitations on the amount of fill that can
be placed per linear foot is normally
sufficient to ensure that the adverse
effects on the aquatic environment will
be minimal, individually and
cumulatively. We agree that some
impacts can be reduced by conducting
certain activities in waters of the United
Sates during low-flow or no-flow
conditions. However, we also believe
that a prohibition is not necessary or not
practicable in many cases. We believe
that this practice should be encouraged
to further minimize any adverse effects
on the aquatic environment. Therefore,
we have modified general condition 3 to
encourage this practice. We agree that
there is some redundancy between NWP
7(ii) and NWP 19. However, we believe
that NWP 7(ii) should not be eliminated
since it is related to other activities
authorized by NWP 7. Furthermore, the
terms of NWP 7 are specific to that type
of activity.
One commenter said this permit
should prohibit the removal of
accumulated sediments from small
impoundments and special aquatic sites
as these locally support rare, threatened
or endangered water-dependent
organisms.
The Corps does not believe that these
areas normally support rare, threatened
or endangered water dependent
organisms, but this NWP does not
authorize any regulated activity unless
it complies with the Endangered
Species Act. This NWP only allows the
removal of accumulated sediments to
maintain a preexisting depth, to
facilitate water withdrawal at the
location of the water intake.
One commenter insisted that NW7
should be withdrawn as it is too broad
for projects to be considered "similar in
nature", or to be able to determine that
the various projects, when considered
individually or cumulatively, will result
in minimal adverse environmental
effects. The commenter also suggested
that its limitations are arbitrary and
capricious. The Corps believes that the
description of the type of activities will
ensure that those activities authorized
by this NWP will be similar in nature.
Further, we believe that these activities
normally will have no more than
minimal adverse effects on the aquatic
environment, individually or
cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively.
The nationwide permit is reissued
without change, however condition 3
was modified based on a comment on
this NWP as indicated above;
8. Oil and Gas Structures. There were
no changes proposed to this nationwide
permit. However, one commenter
recommended that NWP 8 should be
withdrawn as it is too broad for projects
to be considered "similar in nature", or
to be able to determine that the various
projects, when considered individually
or cumulatively, will result in minimal
adverse environmental effects. The
commenter indicated that this permit
category has the potential for
catastrophic secondary, indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species.
The Corps believes that this NWP is
sufficiently restrictive to protect the
environment. The only structures that
can be authorized under this NWP are
those within areas leased by the
Department of the Interior, Minerals
Management Service. The general
environmental concerns are addressed
in the required NEPA documentation
that the Service must prepare prior to
issuing a lease. Further, Corps
involvement is only to review impacts
on navigation and national security as
stated in 33 CFR 322.5(f). The
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2033
nationwide permit is reissued without
change.
9. Structures in Fleeting pnd
Anchorage Areas. There were no
changes proposed to this nationwide
permit. However, one commenter
suggested changing the permit to read:
"Buoys, floats and similar non-
structural devices placed within
anchorage or fleeting areas to facilitate
moorage of vessels where the USCG has
established such areas for that purpose."
The Corps believes that this change is
not needed. The current language is
sufficient to ensure that the category of
activities will be similar in nature. We
believe that the suggested language
would not allow certain structures that
are necessary for moorage of vessels to
be authorized within anchorage and
fleeting areas. The types of structures
permitted by this NWP within USCG
established anchorage or fleeting areas
are only those for the purpose moorage
of vessels. We believe that this limits
the type of structure sufficiently to be
considered similar in nature. The
nationwide permit is reissued without
change.
10. Mooring Buoys. There were no
changes proposed to this nationwide
permit, and there were no comments on
this nationwide permit. The nationwide
permit is reissued without change.
11. Temporary Recreational
Structures. There were no changes
proposed to this nationwide permit.
However, one commenter recommended
withdrawing NWP il as itis too broad
for projects to be considered "similar in
nature", or to be able to determine that
the various projects, when considered
individually or cumulatively, will result
in minimal adverse environmental
effects. The commenter also stated that
the permit category has the potential for
catastrophic secondary, indirect, and
cumulative adverse impacts, including
adverse impacts to Federally listed
threatened or endangered species.
Another commenter suggested that
temporary buoys, markers, small
floating docks, and similar:structures
can interfere with the exercise of treaty
fishing access and, therefore, in an area
subject to treaty fishing, notification to
affected tribes is required. The
commenter further stated the regional
conditions should be added, to require
that such structures shall be removed
from salmon spawning areas prior to
commencement of the spawning season.
We believe that the listing of toe type
of activities will ensure that those
activities authorized by this NWP will
be similar in nature. Further, we believe
that normally these activities will have
no more than minimal adverse effects
on the aquatic environment,
individually and cumulatively. Further,
Division and District Engineers will
condition such activities where
necessary to ensure that these activities .
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. We
agree that this NWP, as with all NWPs,
should not authorize any activity that
may impair reserved tribal rights,
including, but not limited to, those
reserved water rights, and treaty fishing
and hunting rights, as stated in general
condition 8. District and division
engineers will consider the need to add
regional conditions or case-specific
conditions where necessary to protect
such tribal rights. The nationwide
permit is reissued without change.
12. Utility Line Activities. No changes
to this nationwide permit were
proposed. Several commenters raised
issues and suggested changes related to
size and threshold limits and
construction practices. One commenter
said that the permit should contain
height and depth requirements for
utility line installation. Another
commenter suggested that a strict cap
limit on the size of the utility line
should be established. One commenter
suggested that the Corps should require
revegetation, as well as restoration, of
.the landscape's original contours for all
NWP12 projects. One commenter
suggested that sidecasting of material
into wetlands should be prohibited, as
should the construction of permanent
access roads. One commenter suggested
that the Corps should limit temporary
sidecasting to 30 days, rather than 90 to
180 days as .currently written. The
commenter also suggested that, because
temporary impacts can have more than
minimal adverse effects, they should be
limited to Vi-acre, and total impacts
should be limited to 0,3 acres. One
commenter recommended raising the
.acreage limit from Vz acre to one acre.
Another commenter said that the Vz acre
limit is arbitrary and capricious.
Based on our experience, the Corps
believes that the current thresholds and
construction limitations are adequate to
protect the aquatic environment while
allowing needed projects to proceed,
with restrictions. Furthermore, district
engineers can further restrict specific
activities, such as limiting sidecasting to
30 days where necessary. At this time,
we do not believe that it is necessary or
appropriate to increase or reduce the
thresholds.
Several commenters suggest changes
to the preconstruction notification
(PCN) requirement. One commenter
recommended requiring a PCN for all
lines greater than 6" in diameter. Two
commenters indicated that the absence
of a clear definition of "mechanized
land clearing" and a reasonable
threshold for requiring PCNs creates
regulatory uncertainty and an
unnecessary burden on gas utility and
pipeline construction projects. They
further indicated that the notification
requirement would be more reasonable
and consistent with other NWP criteria
if it only applied when mechanized
land clearing affects more than a
reasonable acreage of forested wetland.
Another commenter recommended
removing the PCN requirements for any
mechanized land clearing that occurs in
forested wetlands for utility rights-of-
way. One commenter stated the Corps
should exempt all utility projects other
than sewer lines from the notification
criteria because it is an unnecessary
burden on non-sewer, energy-related
utility projects, which typically will'
cross a water at right angles as opposed
to running parallel to a stream bed that
is within a jurisdictional area. Also, one
commenter suggested we substitute a
Corps-only PCN for activities resulting
in the loss of between Vz and one acre
of waters of the U.S. and a broader PCN
for activities resulting in the loss of
more than one acre. One commenter
recommended reducing the PCN time
period for a Corps response from 45 to
30 days.
The Corps believes that the current
PCN requirements continue to be the
appropriate criteria for determining
when a PCN is required. We do not
believe that an additional PCN
requirement related to the size of the
utility line is appropriate since the
impacts of the utility line are temporary,
and since restoration to preconstruction
contours is required. We believe that
projects involving mechanized land
clearing require a PCN so that the Corps
can ensure that the effect are no more
than minimal. We also believe that the
requirement for agency coordination of
PCNs for activities that affect more than
Vz acre for all NWPs, including this one,
should remain in place to avoid
confusion and to be consistent for all
other NWPs. We believe that the 45 day
response time for PCN is appropriate. It
provides adequate time for those NWP
activities that need some extra time to
review. Corps Districts do not routinely
use the 45 day period. Currently the
average review time for NWP
verifications is 18 days.
One commenter stated that natural gas
distribution and pipeline projects
typically only result in incidental
fallback and, as such, should not require
a 404 permit.
The Corps disagrees that such projects
exclusively result in only incidental
fallback. The Corps recognizes that
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some excavation activities are likely to
result in only incidental fallback that
does not require a Corps permit under
section 404 of the Clean Water Act.
However, the Corps regards the use of
mechanized earth moving equipment in
waters of the US as resulting in a
discharge of dredged material unless
project specific evidence shows that the
activity results in only incidental
fallback. (See 33 CFR 323.2(dK2)(i)). The
determination whether a permit is
required will be made on a case^by-case
basis. In addition, the backfill for the
pipeline is a regulated discharge which
requires authorization under section 404
of the Clean Water Act.
A few commenters suggested that the
NWP, as proposed, would'eliminate the
% acre threshold for several activities.
They indicated that the proposed NWP
states that "activities authorized by
paragraph (i) and (iv) may not exceed a
total of Vz-acre loss of waters of the
U.S." whereas the existing NWP states
that "activities authorized by
paragraphs (i) through (iv) may not
exceed a total of Vz-acre loss of waters
of the United States." Since the current
NWP language more clearly indicates
that the total loss may not exceed Vz-
acre, they recommended that the current
language should be retained.
The Corps agrees with this comment.
The change was an error and the Corps
did not intend to change this NWP. The
current language will be retained.
Several commenters indicated that the
discharge of dredged or fill material
under this NWP could adversely affect
a number of species listed under the
Endangered Species Act.
The Corps believes that General
Condition 11 is adequate to protect
endangered species. No NWP authorizes
any activity that does not comply with
the Endangered Species Act.
One commenter recommended that
the Corps prohibit "stacking" NWP 12
authorizations to allow multiple
crossings, or to allow the use of NWP 12
in combination with any other NWP.
This NWP can only be used once for
a pipeline crossing of a water of the
United States. A pipeline project may
cross more than one stream. However,
each of these separate and distinct
crossings is considered a single and
complete crossing in accordance with
Corps regulations at 33 CFR 330.2(1).
A few commenters recommended that
the use of NWP12 for water intakes
should not be approved because the low
head dams typically associated with
such structures can violate general
condition 4. Some commenters also
indicated that water withdrawal.projects
have different requirements than
standard utility line crossings resulting
in alterations to natural flow regimes
that cannot be considered under this
NWP. ,
NWP 12 specifies that all activities
authorized by this NWP must comply
with General Condition 4. Furthermore,
NWP 12 cannot be used to authorize
low head dams. Such structures would
require an individual permit or some
other general permit.
Two commenters requested the Corps
revoke NWPl2(ii) since they believed
that it is unnecessary to construct such
facilities in wetlands. They believe that
providing an easily attainable
authorization for such construction will
actually encourage the placement of
utility lines in wetland areas, resulting
in an increase in the loss of wetlands.
We agree that any unnecessary
construction of utility line substations
in wetlands should be avoided.
However, where such construction
cannot be avoided as a practical matter,
we believe that the limitations we have
imposed in the NWP will ensure that
any adverse effects on the aquatic
environment will be no more than
minimal, individually and
cumulatively.
One commenter suggested that NWP
12 should be conditioned to require
BMP's on private lands only, since
federal and state land managers are
more likely to impose conditions on
properties under their control.
We believe that the term and
conditions are adequate to ensure that
any adverse effects on the aquatic
environment will be no more than
minimal, individually or cumulatively.
The Corps districts will add regional or
case specific conditions where they
determine a need for such conditions.
One commenter said that NWP 12
should be withdrawn as it is too broad
for projects to be considered "similar in
nature", or to be able to determine that
the various projects, when considered
individually or cumulatively, will result
in minimal adverse environmental
effects. The permit category has the
potential for catastrophic secondary,
indirect, and cumulative adverse
impacts, including adverse impacts to
federally listed threatened or
endangered species.
We believe that the minor nature of
these types and categories of activities
are similar in nature. We further believe
that the conditions and specified
thresholds will ensure that the activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. The
thresholds have been developed based
on years of experience and were
developed to consider most effects that
could occur in many areas of the
country. However, Division and District
Engineers will condition such activities
where necessary to ensure that those
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Activities authorized by.
this NWP must comply with general
condition 11 to ensure that the activity
is in compliance with the Endangered
Species Act.
One commenter suggested we remove
the sentence "waters of the United
States temporarily affected by filling,
flooding, excavation, or drainage, where
the project area is restored to
preconstruction contours and
elevations, are not included in the
calculation of permanent loss of water
of the United States."
The Corps has established the
threshold limits for all NWPs to be for
permanent loss of waters of the US.
Further we have establish the thresholds
to provide for the Corps to be able to
look at those projects to ensure that
there will be no more minimal adverse
effects on the aquatic environment,
individually or cumulatively. Because
the temporary discharges do not result
in long lasting impacts and any short
term impacts are less per acre than
permanent, adding those temporary
impacted acreage to permanent acreage
would not provide an accurate measure
of the potential impacts that may result
in more than minimal effects.
One commenter recommended that a
threshold of Vz-acre should be used
below which no compensatory
mitigation should be required, Unless a
District Engineer determines otherwise.
Another commenter suggested the
changes in values and functions
associated with the permanent
conversion of maintaining gas line
rights-of-way are more likely to be
beneficial than detrimental. Because of
the benefits, as well as the very limited
extent of vegetation change, a mitigation
ratio of 1:1 should be adopted for
wetland disturbances above Vz-acre.
One commenter suggested we remove
the paragraph that characterizes the
conversion of a forested wetland to an
herbaceous wetland as a "permanent
adverse effect" that requires mitigation,
Compensatory mitigation should not be
required as well-maintained herbaceous
wetlands are'of significant value and:
often provide greater ecological
functions. Additionally, many utility
construction and maintenance activities
result in only temporary effects on
wetlands.
The Corps believes that mitigation
should be required to ensure that any
adverse effects on the aquatic
environment will be no more than
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2035
minimal, individually or:cumulatively.
We have proposed to modify General
Condition 19 concerning mitigation
requirements for the NWPs. See the
preamble discussion on General
Condition 19 for our response to
mitigation comments. The [nationwide
permit is reissued without change.
13. Bank Stabilization. The Corps
proposed no changes to this NWP. One
commenter said that this NWP should
be withdrawn because it is too broad to
meet the "similar in nature"
requirement of general permits and it
authorizes activities that may result in
more than minimal adverse
environmental effects. This commenter
also stated that this NWP has the
potential for substantial secondary,
indirect, and cumulative adverse
impacts, including adverse impacts to
federally listed threatened :or
endangered species and environmental
damage at riprap extraction sites.
Another commenter stated that the
Corps needs to develop a method to
document, analyze, and minimize
environmental impacts from all bank
stabilization activities. One commenter
stated that this NWP authorizes
activities that adversely affect natural
stream processes, is contrary to current
practices and philosophies of natural
stream rehabilitation, and impedes
future restoration work. A couple of
commenters suggested that the Corps
adopt a "no net loss in natural stream
banks" policy, requiring the removal of
one linear foot of bank stabilization for
every linear foot of new bank
stabilization. Two commenters stated
that the Corps should direct its bank
stabilization and bank restoration
programs toward the goal of maintaining
and restoring natural stream processes
to the Nation's rivers and streams.
This NWP complies with the "similar
in nature" requirement of general
permits, including nationwide permits,
even though there are numerous
methods of bank stabilization that can
be authorized by this NWP. The terms
and conditions, including the
notification requirements and the ability
of division and district engineers to
impose regional and case-specific
conditions on this NWP, Will ensure
that the activities authorized by this
NWP will result in no more than
minimal individual and cumulative '
adverse effects on the aquatic
environment. For those NWP 13
activities that require notification,
district engineers will review the
proposed work to ensure that those
activities result in no more than
minimal adverse effects to the aquatic
environment. We do not agree that it '
would be appropriate to adopt a "no net
loss" goal for stream banks. Stream bank
stabilization activities are necessary to
protect property, and ensure public
safety. Stream restoration is not always
feasible in developed areas and other
types of bank stabilization may be more
appropriate in those areas.
One commenter said the NWP should
encourage cpnsideration of more
environmentally acceptable methods of
bank stabilization first, and if those
methods are not appropriate, then hard
erosion control measures such as riprap
or bulkheads could be authorized. A
commenter recommended that this
NWP authorize techniques that employ
more natural methods of bank .
protection channelward of the ordinary
high water mark, which may or may not
include the use of hard armoring
materials.
We do not agree that it is necessary
to establish preferences for bank
stabilization methods in the terms and
conditions of this NWP. In certain
situations, riprap or bulkheads may be
the only practicable methods of bank
stabilization. This NWP can be used to
authorize bank stabilization activities
channelward of the ordinary high water
mark, as long as the terms and
conditions of the NWP are met.
One commenter stated that die 500
linear foot limit of this NWP should be
reduced to 100 linear feet, to prevent
significant degradation of salmon
habitat. Two commenters said that NWP
13 should not authorize bank
stabilization activities in excess of 300
linear feet. One commenter indicated
that NWP 13 should be modified to
allow district engineers to waive the 500
linear foot limit when impacts to
aquatic resource are minimal or when it
is environmentally advantageous to
allow additional bank stabilization to
prevent recurring damage. Such a
waiver would reduce repeated
disturbances associated with
continuously repairing damaged bank
stabilization measures that were
shortened to meet the limit. This
commenter also said that this waiver
would allow district engineers to
exercise more discretion in terms of
requiring watershed based mitigation
banks and in-lieu fee programs for
additional impacts and requiring
mitigation at a site of greater watershed
importance.
Based on our experience of using this
limit for over 25 years, we believe that
500 linear feet is the appropriate limit.
However, this limit can be waived as
indicated in the first sentence of the last
paragraph of NWP 13 which states that
bank stabilization activities in excess of
500 feet in length may be authorized if
the project proponent notifies the
district engineer in accordance with
General Condition 13 and the district
engineer determines that the proposed
work results in minimal individual and
cumulative adverse environmental
effects. Division engineers can
regionally condition this NWP to
prohibit or restrict its use in streams
inhabited by salmon. For those activities
that require notification, district
engineers will review the proposed '
work to ensure that the adverse
environmental effects are no more than
minimal.
One commenter said that projects
proposing bank stabilization structures
of more than 300 feet should be elevated
to the Individual Permit level.
Past experience with the limits of this
NWP leads us to believe that the
currently proposed 500-foot limit
generally will not result in more than
minimal impacts.
Two commenters recommended the
Corps prohibit stacking of NWP 13 with
itself or any other NWP. Two
commenters stated the Corps should
prohibit the use of waste concrete for
bank stabilization material due to the
environmental problems, such as toxic
paints from sidewalks, rebar from
construction, and petroleum products
from automobiles. One commenter
indicated that the placement of wood in
bank stabilization projects has the
potential to interfere with treaty fishing
access and affected tribes should be
notified of activities authorized by this
NWP.
This NWP authorizes single and
complete bank stabilization activities.
We do not agree that it would be
appropriate to prohibit the use of NWP
13 with other NWPs, but we do prohibit
using a NWP more than once for a single
and complete project. General Condition
15 addresses the use of more than one
NWP for a single and complete project.
General Condition 18 addresses the use
of suitable material for discharges of
dredged or fill material into waters of
the United States. This general
condition prohibits the use of materials
that contain toxic pollutants in toxic
amounts. General Condition 8, Tribal
Rights, indicates that no activity or its
operation may impair reserved tribal
rights, including, but not limited to,
reserved water rights and treaty fishing
and hunting rights. This NWP can
further be regionally conditioned by
division engineers to ensure that bank
stabilization activities do not interfere
with specific treaty fishing access. This
nationwide permit is reissued without
change.
14. Linear Transportation Projects. In
the August 9, 2001, Federal Register
notice, we proposed to modify NWP 14
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to authorize private transportation
projects in non-tidal waters to have a
maximum acreage of Vfe-acre instead of
the current Vo-acre, and to eliminate the
200 linear-feet prohibition.
Numerous commenters agreed with
the proposal to treat both public and
private transportation projects the same
for tidal and non-tidal waters and
increase the impact limit to Vi-acre in
non-tidal areas. Most agreed that the
Corps was unjust in differentiating
between private and public projects in
the past. Two commenters
recommended that the Vz acre threshold
be increased to assist the applicant with
projects that may still have minimal
impacts however will go over the
allowed threshold and stated this will
decrease the amount of individual
permits. Several commenters disagreed
with the proposal to treat both public
and private transportation projects the
same and indicated that private
individuals are less likely to have access
to critical resource and ecological
information to assist them in designing
their project with minimal impacts to
the aquatic environment. Some
commenters recommended that the Vz-
acre threshold be changed to Vi-acre
overall. One commenter stated that the
change in the acreage threshold
conflicts with the general requirement
of the Nationwide Permits to have
minimal adverse impacts on the aquatic
environment. One commenter stated
that this NWP supports a non-water
dependant activity and therefore
activities proposed under this NWP
should be reviewed as an Individual
Permit. One commenter recommended
that the Corps withdraw all proposed
changes.
We have determined that the impacts
to the aquatic environment for
transportation projects will be
essentially the same whether the project
is public or private and on the average
we would expect the private
transportation projects to be smaller. We
believe that private projects go through
local, state, and other permitting
processes and have the same access to
resource and ecological information as
public projects. Furthermore, the terms
and conditions will ensure that NWP 14
will have no more than a minimal
adverse effect on the aquatic
environment. We believe that a
distinction needs to be made for
transportation crossings based on
whether they cross tidal or non-tidal
waters. We are not changing the
maximum acreage of NWP 14, but are
applying the maximum acreage to non-
tidal waters rather than public projects.
We have determined that the maximum
loss of waters of the US for this NWP
should be Vz acre in non-tidal waters of
the US and Va acre in tidal waters of the
US. Both limits along with the terms
and conditions of the NWP will ensure
that this NWP does not authorize
activities with more than minimal
adverse effects on the aquatic
environment.
Many commenters objected to the
removal of the 200 linear-foot restriction
because this type of impact could not be
considered minimal. The commenters
stated that streams have no adjacent
wetlands therefore allowing several
hundred feet of stream to be impacted
before the Vz acre threshold is reached,
that requiring a linear measure ensures
that impacts will be minimal, and no
justification was provided in the
Federal Register for proposing this'
change. Numerous commenters agree
with the removal of the 200 linear-foot
restriction and have stated that the PCN
threshold, as well as the acreage limit,
will continue to provide protection to
the environment. One commenter
recommended that a 100 linear-foot
restriction be adopted.
We proposed to remove the 200
linear-feet prohibition from NWP 14 to
eliminate varied interpretations and to
simplify the basis for use of the permit.
We have determined that the removal of
this prohibition will have little practical
effect as the limiting factor contained in
the terms and conditions of NWP 14 is
most often the acreage limitation. We
believe that very few projects exceeding
the 200 linear-feet would remain below
the Vio-acre "notification" threshold.
For example, a 200' by 22' wide
transportation crossing would impact
4,400 sq. ft. (i.e., Vio-acre). We have
determined that 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. Therefore, we
have concluded that these measures,
along with the other terms and
conditions of the NWPs and other
mechanisms such as regional conditions
and the discretionary authority, will
ensure that any NWP 14 activity that
complies with the acreage threshold
will have no more than a minimal
adverse effect on the aquatic
environment.
Two commenters recommend that all
proposed changes be implemented and
individual Corps Districts not be
allowed the use of discretionary
authority to restrict these changes nor
require an individual permit for
multiple stream crossings. One
commenter recommended that
mitigation always be required for
impacts under NWP 14.
We believe that the use of
discretionary authority by District
Engineers is necessary to ensure that
impacts to the aquatic environmental
that are more than minimal receive the
proper review. The requirement for a
compensatory mitigation proposal
applies to those activities that require
notification. Further, for projects not
requiring a PCN, District Engineers may
determine, on a case-by-case basis, that
compensatory mitigation is necessary to
offset losses of waters of the United
States because the work, without
compensatory mitigation, will result in
more than minimal adverse effects on
the aquatic environment. This could
occur if the project proponent submits
a voluntary verification request to the
Corps or if a concern is raised to the
Corps by a third party.
Numerous commenters agreed with
the preamble clarification that features
integral to linear transportation projects
are covered under NWP 14 and stated
this clarification will reduce confusion
without adversely affecting
environmental values. One commenter .
objected to the clarification of features
integral to linear transportation projects
and stated that the addition of these
activities expands the possibility of
impacts, which often could be avoided.
One commenter recommended that the
term "stormwater detention basin" (as
used in the preamble to the proposed
NWPs) be changed to read "stormwater
management basin" and "water quality
enhancement measure" be changed to
read "water quality/wetland
enhancement measures". The
commenter stated that this change
would allow additional stormwater best
management practices to be authorized
by this permit.
We do not believe that the features
described in preamble of the August 9,
2001, issue of the Federal Register,
expanded the activities that can be
authorized by NWP 14. We have
maintained that NWP 14 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.
We believe,the examples listed in the
preamble are dependent integral
components of typical linear projects
and were added for clarification. We
maintain 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). These examples and
other integral features not listed could
be authorized. We agree that stormwater
management features and wetlands
features integrally related to the linear
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2037
transportation project could be
authorized by this NWP. In addition,
other NWPs may be combined with this
NWP to authorize related activities
subject to general condition 15.
Several commenters addressed the
Corps definition of single and complete
project under NWP 14. One commenter
recommends that any proposed roadway
fill in special aquatic sites, including
wetlands require a PCN with agency
coordination. One commenter
recommended that the definition of
"single and complete project" be
amended to include all portions of the
linear project that do not have
independent utility. One commenter
recommended that multiple stream
crossings should be deemed to be part
of a single road project. One commenter
recommended that additions to
previously permitted projects be
reviewed under the individual permit to
avoid piece-mealing.
Notification is required for all
discharges of dredged or fill material
into special aquatic sites and discharges
resulting in the loss of greater than Via
acre of waters of the United States. We
believe most activities authorized by
this NWP will require notification to the
district engineer and the determination
as to whether to require ari individual
permit should .be made on a case-by-
case basis. For example, if ;NWP 14 is
used more than once by different project
proponents to cross a single waterbody,
the district engineer will assess the
adverse effects on the aquatic
environment and determine if those
adverse effects are minimal. As with any
NWP, the district engineer' can exercise
discretionary authority and require an
individual permit if the adverse effects
on the aquatic environment will be
more than minimal. The definition of
the term "single and complete project"
for linear projects can be found in Corps
regulation at 33 CFR 330.2(1).
Many commenters recommend that
NWP 14 not be authorized within tidal
wetlands or waters and wetlands
adjacent to tidal waters as these areas
have great ecological importance and
already suffer from development
pressures. One commenter
recommended an individual permit be
required for activities within tidal
wetlands and wetlands adjacent to tidal
waters. One commenter recommended
the language in section a. (2) be changed
to read "linear transportation projects in
tidal waters and non-tidal wetlands
adjacent to tidal waters".
We agree that tidal waters or water
and wetlands adjacent to tidal water can
have great ecological importance and
have suffered from development :
pressures. However, the current
language is sufficient to protect such
areas. We have developed terms and
conditions to keep adverse impacts at a
minimal level. Further, in many cases a
PCN is required and Districts will add
case specific conditions and mitigation
when needed to ensure that adverse
impacts will be minimal. Some projects
will need to be processed as an
individual permit. The district offices
will make that determination when
necessary to ensure that the adverse
. effects to the aquatic environment will
be no more than minimal.
One commenter recommends that the
Corps prohibit the construction of new
transportation or spur projects under
this NWP. Due to the development
potential associated with road projects,
a thorough alternative analysis, along
with agency and public review should
be required.
The main purpose of this NWP is to
authorize new linear transportation
crossing of waters of the US. It may also
authorize new crossings involved in
relocating of existing linear
transportation projects. This NWP does
not authorize a transportation project as
a whole, which does not require
authorization by the Corps of Engineers.
However, we will address alternatives to
crossings to avoid and minimize adverse
effects in accordance with General
Condition 19, to ensure that adverse
effects on the aquatic environment are
no more than 'minimal.
One commenter recommends,
condition "f" be clarified to ensure less
than minimal effects on the
environment. The clarification should
state "all stream crossings be engineered
to transport flows and sediment during
both hank full and flood flows".
Furthermore the clarification should
state the permit .does not authorize
crossings that block flows in or restrict
the stream's access to the floodplain.
The commenter further recommended
that the condition require equalization
culverts be installed as part of crossings
that affect flood plains.
We agree that activities authorized by
this NWP can have adverse effects
related to flow and movement of water
through and under the crossings. For
that reason, the'term f. of the NWP was
added to emphasize the need for
projects authorized by this permit to,
adequately address water movement
impacts. This provision refers to
General Conditions 9 & 21. We believe
that along with these two conditions,
the effects of crossings on the movement
of water will be no more than minimal.
15. U.S. Coast Guard Approved
Bridges. There were no changes
proposed to this nationwide permit.
However, one commenter recommended
that NWP 15 be withdrawn as it is too
broad for projects to be considered
"similar in nature", or to be able to
determine that the various projects,
when considered individually or
cumulatively, will result in minimal
adverse environmental effects. The
commenter also stated that the permit
category has the potential for
catastrophic secondary indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species.
We believe that the listing of the type
of activities and that they are related to
bridge construction only will ensure
that those activities authorized by this
NWP will be similar in nature. Further,
we believe that normally these activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. ,
However, Division and District
Engineers will condition such activities
where necessary to ensure that these
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. The nationwide permit is
reissued without change.
16. Return Water From Upland
Contained Disposal Areas. There were
no changes proposed to this nationwide
permit. A few commenters suggested
that, in order to assure that the lands
and waters draining the disposal areas
are not contaminated from pollutants
entrained in the dredged material, the
NWP should be tightened to require
individual permit review unless the
discharge/leachate from the dredged
material is controlled through a NPDES
permit. Another commenter stated that
NWP 16 should be withdrawn as it is
too broad for projects to be considered
"similar in nature", or to be able to
determine that the various projects,
when considered individually, or
cumulatively, will result in minimal
adverse environmental effects. The
commenter also stated that the permit
category has the potential for
catastrophic secondary indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species.
Consistent with 33 CFR
323.2(dMl)(ii), this NWP authorizes the
return water as the discharge of dredged
material. As such, an NPDES permit is
not required. However, a ,401
certification is required and we believe
will adequately control the quality of
the return flow. We believe that the
listing of the type of activities will
ensure that those activities authorized
by this NWP will be similar in nature.
Further, we believe that normally these
activities will have no more than
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minimal adverse effects on the aquatic '
environment, individually and
cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. General Condition 11
ensures that the activity will comply
with the Endangered Species Act. The
nationwide permit is reissued without
change.
17. Hydropower Projects. There were
no changes proposed to this nationwide
permit. There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
18. Minor Discharges. There were no
changes proposed to this nationwide
permit. One commenter said that NWP
18 should be withdrawn as it is too
broad for projects to be considered
"similar in nature", or to be able to
determine that the various projects,
when considered individually or
cumulatively, will result in minimal
adverse environmental effects. -The
permit category has the potential for
catastrophic secondary indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species. Also,
the thresholds of 25 cubic yards and
Vioth acre are arbitrary and capricious.
Another commenter stated that NWP 18
should be modified to allow the Corps
District Engineer to waive the 25 cubic
yard limitation when the aquatic
resource impacts would remain minimal
or when it is environmentally
advantageous and efficient to allow the
discharge of additional material as a
single project and direct mitigation to a
watershed based mitigation bank.
We believe that the minor nature of
these types of small discharge activities
authorized by this NWP will be similar
in nature. Further, we believe that
normally these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. However, Division
and District Engineers will condition
such activities where necessary to
ensure that these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. While we believe that
the small quantity limits are necessary
to ensure that on a national basis that
the adverse effect on the aquatic
environment will be no more than
minimal individually and cumulatively,
we also recognize that in some areas and
in some situations that larger quantities
would also have no more than minimal
individually and cumulatively. In these
situations the Corps Divisions and
districts may issue, after notice and
comment, regional general permits for
larger quantity limits. General Condition
11 ensures that the activity will comply
with the Endangered Species Act. The
nationwide permit is reissued without
change.
19. Minor Dredging. There were no
changes proposed to this nationwide
permit. One commenter said that NWP
19 should be withdrawn as it is too
broad for projects to be considered
"similar in nature", or to be able to
determine that the various projects,
when considered individually or
cumulatively, will result in minimal
adverse environmental effects. The
permit category has the potential for
catastrophic secondary indirect, and
cumulative adverse impacts, including
adverse impacts to federally listed
threatened or endangered species. Also,
the thresholds of 25 cubic yards is
arbitrary and capricious.
We believe that the minor nature of
these types of small dredging activities
authorized by this NWP will be similar
in nature. Further, we believe that
normally these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. However, Division
and District Engineers will condition
such activities where necessary to
ensure that these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. Also these activities
do not require a permit under section
404 of the Clean Water Act if they result
in only incidental fallback (see 33 CFR
323.2 (d)). While we believe that the
small quantity limits are necessary to
ensure on a national basis that the
adverse effects on the aquatic
environment will be no more than
minimal individually and cumulatively,
we also recognize that in some areas and
in some situations that larger quantities
would also have no more than minimal
adverse effects, individually and
. cumulatively. In these, situations the
Corps Divisions and districts may issue,
after notice and comment, regional
general permits for larger quantity
limits. General Condition 11 ensures
that the activity will comply with the
Endangered Species Act. The
nationwide permit is reissued without
change.
20. Oil Spill Cleanup. There were no
changes proposed to this nationwide
permit. One commenter suggested that
NWP 20 should be withdrawn as it is
too broad for projects to be considered
"similar in nature", or to be able to
determine that the various projects,
when considered individually or
cumulatively, will result in minimal
adverse environmental effects. The
permit category is a prime example of
the secondary, indirect; and cumulative
adverse impacts, including adverse
impacts to federally listed threatened or
endangered species in locations beyond
the location of the spill which could
result from activities authorized under
NWP 8. .
We believe that the minor nature of
these types of small discharge activities
authorized by this NWP will ensure that
they are similar in nature. Further, we
believe that normally these activities
will have no' more than minimal adverse
effects on the aquatic environment,
individually and cumulatively.
However, Division and District
Engineers will condition such activities
where necessary to ensure that these
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. This NWP only addresses
the need to clean up oil spills regardless
of the source of the spill and only when
the clean up involves a discharge of
dredged or fill material. The effects of
the oil spill itself will be considered by
the lead Federal or state agency
involved in the clean up exercise.
General Condition 11 ensures that the
activity will comply with the
Endangered Species Act. The
nationwide permit is reissued without
change.
21. Surface Coal Mining Activities.
The Corps proposed two changes to this
NWP to ensure the proper focus of the
NWP and to make certain adequate
mitigation will be required resulting in
no more than minimal adverse effects
on the aquatic environment. Both of
these changes will increase protection of
the aquatic environment. First, the
Corps proposed to require a specific
determination by the District Engineer
on a case-by-case basis that the
proposed activity complies with the
terms and conditions of this NWP and
that adverse effects to the aquatic
environment are minimal both
individually and cumulatively after
consideration of any required mitigation
before any project can be authorized.
Second, the Corps proposed 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.
Definition of Fill and Waste
Two commenters stated that the Corps
issuance of NWP 21 to authorize valley
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2039
fills is illegal in that the Corps current
definition of fill specifically precludes
pollutants discharged into the water
primarily to dispose of waste, as that
activity is regulated by EPA under
section 402 of the Clean Water Act. (33
CFR section 323.2(e)). One of these
commenters quoted from the Bragg v.
Robertson decision where the 4th
District Court, in ruling upon certain
claims against the State under SMCRA,
stated in dicta that the overburden or
excess spoil was a pollutant and waste
material and not fill material subject to
Corps authority under section 404 of the
CWA when it is discharged into waters
of the U.S. for the primary purpose of
waste disposal. The other commenter
added that even if the Corps had
jurisdiction to issue permits for valley
fills composed of mining spoils under
the April 2000 proposed rule, to amend
the definition of "fill material", it would
not have jurisdiction to authorize the
discharge of coal processing waste into
refuse impoundments under Section
404. In addition, the commenter
asserted that even if the Corps finalizes .
the proposed rule regarding the
definition Of fill, it must, under NEPA,
perform an EIS before implementing the
rule. Because this has not been done
and the current rule prohibits fills
composed of waste material, the
commenter claimed NWP 21 is
inapplicable to authorize the placement
of mining spoil or coal refuse in waters
of the U.S.
Another commenter added that the
final notice reissuing NWPs must
clearly and unambiguously prohibit
placement of coal processing wastes and
underground development wastes in
"coal waste dams" or "tailings piles"
into waters of the U^S., and must further .
prohibit the placement of coal mine
"spoil" material in such waters as
"waste disposal" unless the final design
of the valley fill structure is
demonstrated to be necessary to support
the approved post-mining land use and
is thus placed for a beneficial purpose.
Definition of Fill Rule: 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 (65 FR 21292, April 20, 2001). 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.
Among other things the proposed nile
would clarify that placement of excess
coal mining overburden, resulting from
mountaintop mining/reclamation
activities, in waters of the U.S. (valley
fills) is considered a discharge of fill
material. The agencies are reviewing
approximately seventeen thousand
comments received in response to the
proposed rule and are in the process of
drafting the final rule. NWP 21 is
available to authorize discharges of fill
material meeting the terms of the
permit. Issues related to the
applicability of Clean Water Act section
404 to "coal waste dams," "tailings
piles'" coal mine "spoil" and coal slurry
impoundments turn on the
jurisdictional question of what
constitutes fill material, an issue that
will be clarified in that rulemaking.
Because the proposed nationwide
permits do not seek to resolve those
questions, these comments are outside
the scope of this proceeding. With
regard to valley fills, in a memorandum
dated September 26, 2001, the Corps
directed all involved field elements to
inform the public and initiate regulating
valley fills in all states, pursuant to
section 404 of the CWA. The
memorandum attaches a legal analysis
that concludes that Corps regulation of
valley fills may be pursued under the
current regulations. The Corps decided
to regulate valley fills because of the
need for consistent administration of the
Regulatory Program, assuring equity for
the public. In addition, the Corps will
require appropriate compensatory
mitigation, as necessary, for the loss of
aquatic resources.
Bragg Settlement Agreement: On
December 23,1998, a settlement
agreement was signed to end litigation
against the federal government that
challenged whether applicable federal
programs were being appropriately
applied to regulate valley fills in West
Virginia (Bragg v. Robertson, Civil
Action No. 2:98-0636 (S.D. W.Va}). The
Court approved the agreement on June
17,1999 (54F.Supp. 2d 653). The
settlement agreement was facilitated, in
part, by the Army establishing that the
Corps would regulate valley fills in
West Virginia pursuant to section 404 of
the CWA. While on appeal, the Fourth
Circuit Court of Appeals vacated a
subsequent decision issued by the
District Court addressing Surface
Mining Control and Reclamation Act
(SMCRA) claims in the case (see 248
F.3d 275); that Fourth Circuit 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 stated 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 would generally be considered to
have more than minimal adverse effects
on waters of the U.S. Consistent with
the terms of this agreement, to which
the Corps is a party, the Corps will
generally use its discretionary authority
to require standard permits for coal
mining activities in West Virginia where
the material would bury a stream
segment draining a watershed of 250
acres or more. 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
applicability. '
Further, we are gathering data and, in
conjunction with other federal agencies,
are preparing a programmatic
mountaintop mining/valley fill (MTM/
VF) EIS to better understand the
environmental effects of mountaintop
mining and valley fills, as well as
programmatic changes that maybe
necessary to address those impacts. The
Corps will reevaluate NWP21 when the '
mountain top mining EIS is completed.
The Corps intends to use the results of
this EIS and all other information that
may be available at that time, including
information resulting from individual
verification of all NWP 21 projects as
required under the revised terms and
conditions, to make sure that NWP 21
results in no more than minimal
impacts (site-specifically and
cumulatively) on the aquatic
environment. Therefore, at this time we
are not adding additional conditions
from the Bragg agreement to the NWP
itself. 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 settlement
agreement in West Virginia 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
will have no more than minimal adverse
effects on the aquatic environment.
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EIS/EA for NWP
A few commenters stated that the
Corps 1996 EA did not adequately
account for the increasing size and scale
of valley fills and their impacts. One of
these commenters suggested that this
NWP should not be reauthorized until
the new EA or EIS is completed which
may find that impacts due to this
nationwide are more than minimal.
Three commenters stated that
reissuance of NWP 21 was inconsistent
with the Corps obligation under NEPA,
since the Draft Nationwide Permit
Program Programmatic EIS (PEIS) dated
July, 2001, does not adequately address
the effects of eliminating NWP 21 and
other NWPs which have been
controversial due to their substantial
environmental effects.
The PEIS addressed the effects of
different permit processing scenarios
(standard, regional general and
nationwide general permits) on the
Corps permit program in terms of
workload, cost and protection for the
environment. It did not include
alternatives changing only some
nationwide permits to standard permits
or regional general permits or any other
combination of specific NWPs permits.
This combining of different scenarios
would have resulted in a very large
number of alternatives to analyze.
One commenter stated that the PEIS
fails to fully incorporate and analyze the
substantial body of scientific knowledge
and information that has been amassed
as part of the aforementioned MTM/VF
EIS relative to the effects of mountain
removal mining and valley fill
construction on Appalachian streams
and rivers. This commenter requests
that all available technical and scientific
studies, and the draft MTM/VF EIS be
incorporated into the DPEIS and that a
supplemental PEIS be prepared
concerning the proposal to reissue NWP
21, which includes the alternative of
reissuance of other nationwide permits
with the exception of NWP 21 and other
controversial NWPs.
The MTM/VF EIS will not be
completed for some time. However, the
Corps fully intends to use all relevant
information, including the results of this
EIS, to make sure that NWP 21 results
in no more than minimal impacts (site-
specifically and cumulatively) on the
aquatic environment.
One commenter noted that the Corps
is currently involved in an EIS limited
to two states, Kentucky and West
Virginia, for a subset of the activities
authorized under NWP 21 and which
will not determine the effects of all
activities associated with this permit.
This commenter states that the Corps
must perform an EIS on all impacts
associated with NWP 21 including, but
not limited to, mountaintop removal
valley fills, contour mining valley fills,
and coal refuse discharges. They also
state that particularly, given the
concentrated use of NWP 21 in only a
few districts, it is clear that the Corps
permitting decisions have had impacts
exceeding both the "significant"
standard under NEPA and the "minimal
adverse effects" standard under Section
404(e).
As previously stated, the Corps is
committed to ensuring that NWP 21
'does not result in more than minimal
adverse effects to the aquatic
environment. We believe that the
changes proposed and adopted will
ensure minimal adverse effects on the
aquatic environment. We will review
the additional information provided
within the MTM/VF EIS, upon its
completion, to be sure that this
continues to be the case.
Scope of Analysis
One commenter opposed reissuance
of NWP 21 based on this activity's non-
water dependency and associated
secondary/cumulative impacts such as
acid rain from burning of coal and its
affect on the human environment. This
commenter is concerned over the
adverse impacts of acid deposition on
the human environment. Another
commenter claims that coalfield
communities near these operations are
dwindling as large out of state coal
corporations employ fewer and fewer
workers and severe flooding in the area
caused by the mining activities makes it
extremely difficult to live near these
mining operations.
These impacts are outside of the
Corps scope of analysis pursuant to the
National Environmental Policy Act. The
Corps evaluation of valley fills is
focused on impacts to aquatic resources.
Overall mining is permitted under
separate Federal laws, SMCRA.
Another commenter, also concerned
with secondary and indirect impacts of
coal mining activities, objected to the
statement in the preamble that the
"Corps review is limited to the direct
and indirect, and cumulative effects of
fills in waters of the U.S". This
commenter states that the scope of
analysis should extend beyond the
effects of fills in waters of the U.S.
However, another commenter not only
agreed that the scope of analysis should
be limited to the direct and indirect and
cumulative effects of only the fills in
waters of the U.S. but al§o that wording
should be included in the permit
language to inform all interested parties
that the Corps would not be. considering
the impacts of the actual coal mining
operation itself, especially one
occurring on a mountain top.
Impacts associated with surface coal
mining and reclamation operations are
appropriately addressed by the U.S.
Department of the ulterior Office of .
Surface Mining or the applicable state
agency, if program delegation has
occurred, pursuant to the Surface
Mining Control and Reclamation Act.
Under these circumstances, the Corps
NEPA implementing regulations clearly
restrict the Corps scope of analysis to
impacts to aquatic resources. We concur
with the commenter that the scope of
analysis should be limited to only
impacts to the aquatic environment.
Duplication/ Executive Order 13212
One commenter was opposed to any
change to NWP 21 because of possible
duplication of the intensive review
performed by the Office of Surface
Mining in coordination with the Corps
and other, state and Federal agencies
related to approval of reclamation plans
for surface coal mining activities. This
commenter is concerned that such
duplication now proposed will
complicate the approval process for
mine operations and make approval
more cumbersome and bureaucratic
resulting in unnecessary duplication
and delays for approval of energy
related projects which would be in
direct conflict with Executive Order
13212 Actions to Expedite Energy
Related Projects. One commenter ,
discussed at great lengths the
implicatioifof EO 13212 which was
signed on May 18, 2001. The commenter
asserted coal reserves serve an
indispensable role in the nation's energy
equation and are used primarily for
generating the nation's electricity, and
that a reliable general permit program is
vital to a coal producer's ability to meet
the nation's growing coal needs. This
commenter is concerned that the
proposed changes to this NWP will
cause delays and unnecessary
duplication. One commenter suggested
that all proposed projects falling under
this NWP be coordinated with the
SMCRA and should consider any
required SMCRA mitigation when
making its determinations regarding
appropriate mitigation under Section
404. One commenter suggested that the
Corps utilize the SMCRA environmental
protection, mitigation and findings
standards as a general basis for
determining that surface coal mining
operations regulated by SMCRA will
have minimal impact and meet NWP 21
applicability standards. By using
SMCRA standards when making
determinations of applicability to NWP
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2041
21, the commenter indicated the Corps
review can be expedited consistent with
EO 13212. Further, the commenter
indicated that under SMCRA, the
DMME is prohibited from issuing a coal
surface mining permit unless the agency
first finds, in writing, that the proposed
mining operation will minimize impacts '
to the hydrologic balance within the
permit area and will not result in >.
material damage to the hydrologic
balance outside the permit area.
As .stated above, the Corps has
determined that the SMCRA process
does not currently adequately address
impacts to the aquatic environment as
required under Section 404, therefore
this NWP does not duplicate the mining
permit process but does rely on it for
help in the analysis. We encourage
Corps Districts to work with state and
Federal mining agencies to coordinate
early in the process so that the SMCRA
permit includes adequate mitigation to
offset impacts to the aquatic
environment. ;
Two commenters agreed with the
proposed changes in this NWP because
of the differing goals of the ISMCRA/
DMME and the CWA, specifically
concerning compensatory mitigation.
The commenters indicated that while
most NPDES permits include conditions
to protect against stream impacts, they
do not often address wetland impacts.
In addition, according to one
commenter, there are no clear standards
for stream replacement, leading to poor
reconstruction techniques with little or
no restoration of habitat function.
The Corps is working on stream
functional assessment protocols to help
in identifying the functions lost through
impacts and the functions gained or
enhanced through mitigation.
Two commenters suggested that NWP
21 should be significantly restricted or
eliminated, since it wrongfully assumes
the state or federal regulatory agency
under SMCRA is engaging in a process
comparable to section 404 of the CWA
and the 404(b)(l) Guidelines of assuring
avoidance and minimization of impacts
on special aquatic sites and other waters
of the US, when in fact no other agency
engages in such review.
The Corps has not assumed that other
state or Federal agencies arfe engaging in
a comparable Section 404 type process.
In accordance with the Section 404(b)(l)
Guidelines, analysis of offsite
alternatives is not required Sin
conjunction with general permits.
A few commenters were opposed to
the requirement for a written
determination of compliance without a
time clock, i.e. 45 days, for the Corps to
respond or the applicant can begin
work. One of these commenters is
concerned that under the proposed
NWP, the applicant could wait weeks or
months until he receives express
authorization from the district to begin
which would result in delays'and
additional paper exercise for a project
deemed to be of minimal impact.
Another scenario a commenter provided
would be to wait months just to be told
the project does not qualify for NWP 21
and that a standard permit would be
required. This commenter suggests that
the Corps could abuse the lack of time
constraints when it cannot meet its own
deadlines. A few commenters suggested
that the Corps rely solely on the
notification requirement for determining
whether or not any specific activity
complies with the terms and conditions
of the NWP within the 45 day time
limit.
Under the current regulatory program,
all coal mine operators must notify the
Corps which may involve agency
coordination subject to a 45 day time
clock to submit comments to the Corps.
Under the proposed NWP, the applicant
must wait before initiating construction
until he receives express authorization
from the District Engineer. Corps
districts will make decisions in a timely
matter. We believe that a careful case
specific minimal impacts determination
is necessary for this NWP, but it may
sometimes take more than 45 days.
Because of the potential for more than
minimal adverse effects with these
projects this approach is necessary.
Impacts from NWP 21
A majority of the commenters
opposed the reissuance of NWP 21
because of potential impacts.
Specifically, the major concern stated by
most commenters was that the.
mountaintop removal mining and
disposing of the overburden in valleys
(valley fills) would result in the burying
of streams thereby disturbing the natural
processes and water quality in the entire
watershed and result in the permanent
loss of habitat. One commenter stated
concern that this NWP activity will
displace Federally protected threatened
and endangered species. Another
commenter raised concerns about
impacts to water supplies used for
drinking and recreation from the vallev
fills. ,
This NWP requires compliance with
all of the general conditions for the
nationwide permits. One commenter
pointed out that in one state alone 15-
25% of the mountains have been
^ leveled, that the overburden from these
mines placed in "valley fills" have
destroyed more than 1,000 miles of
streams, and that one mine can destroy
10 square miles of mountain and fill as
many as 12 stream valleys. This
commenter concludes that these kinds
of impacts cannot be considered
"minimal in effect" to qualify for,a
NWP. One commenter stated that the
"field assessment" of the nationwide
permit program provided an inadequate
, analytical basis for documenting the
extent and severity of aquatic and
terrestrial impacts of the
implementation of NWP 21.
One commenter contends that the
Corps has admitted to its inability to
assess direct, indirect, and cumulative
impacts associated with specific coal
mining projects. Therefore, the Corps
cannot be in a position to state whether
any application for an authorization
under NWP 21 would or would not have
more than minimal adverse impacts,
either individually or cumulatively.
Another commenter stated that a draft
EPA finding indicates that the "impacts
of mountaintop mining and valley fill
activities in eastern Kentucky were
evident based on stream biological and
habitat indicators. Mining related sites
generally had higher conductivity,
greater sediment deposition, smaller
particle sizes, and a decrease in
pollution sensitive macoinvertebrates
* * * in turn, these streams and rivers
may support fewer fish and other taxa
which are recreationally or
commercially important."
These studies are draft documents
and have not been finalized or the
conclusions agreed upon by the
cooperating agencies.
One commenter stated that the Corps
has ignored OSM studies and are not
considering effect of valley fills on
flooding. However, another comment
challenged the Corps statement under
notification that the Corps is
"discouraging extensive channelizing or
relocation of stream beds because of
potential adverse effects on the stream
.and the potential to intensify
downstream flooding". This commenter
contended that the Corps does not have
an adequate basis for this statement
concerning downstream flooding and
requests that it be taken out.
The basis for this conclusion is that
whether increased downstream flooding
will occur is a site specific circumstance
based on downstream channel capacity
and geometry coupled with the
influence of man induced alternations
to channels and flood plains. These
issues will be evaluated during the case
specific minimal effects determination.
This commenter added that available
studies document lower flood rates in
areas of surface mining activities than in
similar unmined watersheds and that
some mining activities result in
alteration to landscape that can provide
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significant runoff retention. And, for
example, the commenter added, open
pits and drainage control structures can
provide runoff retention and longer
travel times for overland flow and
increased infiltration provided by
backfills can also retard or lessen peak
flows.
The preliminary draft MMEIS, which
includes an assessment of scientific
studies related to providing a better
understanding of flooding potential
related to mountaintop mining,
concluded that no corroborating
evidence exists to support the
allegations that surface mining
operations increased flooding potential
downstream.
Two commenters questioned the
Corps proposal of this NWP and the
determination that it meets the
requirement that the adverse
environmental impacts- are individually
and cumulatively minimal while
admitting (in the proposed regulation)
that it is still gathering data to better
understand the effects of valley fills on
the aquatic environment.
The Corps is continually gathering
data on all its nationwide general
permits to ensure that the effects of the
program on the aquatic environment are
minimal, both individually and
cumulatively. The changes in
procedures proposed and adopted here
will ensure minimal effects through case
specific review and mitigation.
Thresholds for NWP 21
A few of these commenters suggested
reissuing this NWP but precluding its
use for mining operations involving
mountain-top removal.-
We disagree, this permit is designed
for use by mountaintop mining
operations as well as other surface coal
mining activities.
Several commenters added that since
this nationwide has no size/acreage
limits, extensive linear feet of streams
could be impacted. Two commenters
recommended using the same stream
threshold limitations as stated in NWP
30,40,42, and 43 (300-foot limitation)
for consistency purposes and since
stream impacts from filling should be
evaluated the same regardless of the
activity involved.
The 300 linear foot limit is retained
for NWPs 39,40,42, and 43, however
justification, on a case-by-case basis, can
be made to allow additional linear
impacts for intermittent streams. The
Corps believes that coal mining is
different from activities authorized
under NWPs 39,40,42 and 43 in that
coal mining projects are reviewed for
environmental impacts under several
other authorities (SMCRA, CWA section
402). For this reason, the determination
of whether a project will result in more
than minimal adverse effects is.best
made on a case-by case basis.
Two .commenters cite from the Draft .
PEIS that in 2000 alone, 13,907 acres of
impacts to streams and wetlands were
authorized under NWP 21 making up
72% of all NWP impacts for that year
and one of these commenters
recommends protective measures and/or
environmental thresholds due to the
potential losses. One of these
applications resulted in the direct filling
of over six miles of streams and indirect
impacts to an additional three miles
with no data to suggest that these
impacts were minimal. For this reason,
this commenter and others have
suggested including the provisions
adopted in the Bragg v. Robertson
settlement of a 250-acre watershed
threshold while waiting the findings of
the EIS process to determine the
appropriateness of that threshold limit.
They believe the 250 acre standard
would provide belter protection than no
threshold at all, as is currently the case.
Two commenters suggested that if NWP
21 must be reissued, it should be
conditioned such that valley fill projects
affecting intermittent and/or perennial
streams will be ineligible for
authorization and would be evaluated as
standard permits. They state that this
'would be consistent with the Corps July
2000 guidance to the field, which
provides that the 250 acre standard
should be used in evaluating all PCN for
NWP 21. However, two commenters
support the Corps decision not to
include the 250 acre threshold because .
it is temporary in nature and limited
only to West Virginia. Further, they
asserted that limit was not based upon
any scientific analysis but rather a
product of an agreement arrived at in an
arbitrary way, having no correlation
with environmental protection. These
commenters also cited projects with a
500 acre watershed, which improved
the pre-mining conditions. One
commenter suggested that if NWP 21
must be reissued, it should be
conditioned such that valley fill projects
affecting intermittent and/or perennial
streams will be ineligible for
authorization and be evaluated as
standard permits.
' The Corps believes that a scientific
basis for the 250 acre limit designated
in the Bragg v. Robertson settlement has
not been adequately established and the
limit may not be appropriate for all
situations. High quality streams exist
above this point on the landscape and
lower quality streams exist below this
point. We believe it is better for the
environment to look at specific sites and
watersheds and make quality
determinations than to try and fit all
watersheds into a rigid pre-determined
categorization that may or may not
reflect the site specific aquatic
conditions. The Corps is further
concerned that universal use of the 250
acre limit could encourage a
proliferation of smaller valley fills in
lieu of fewer larger fills, and that this
may not be the best outcome for the
aquatic environment. The Corps has
identified a data error in the PEIS. The
13,907 acres of impact actually were
less that 50 acres.
One commenter suggested that
environmental thresholds be established
if not with this authorization, definitely
with the next and that these thresholds
be determined through a public review
process.
Thresholds may be added by
individual Districts as regional
conditions for this permit through the
public review process. In addition, we
will review this NWP when the MTM/
VF EIS is complete along with all other
relevant information and will develop
criteria or propose any changes that may
be needed.
Mitigation
Many of those commenters objecting
to the reissuance of NWP 21 stated that
the mitigation, even with Corps review
and approval, could not sufficiently
compensate for these impacts and
therefore this NWP would be a violation
of the Clean Water Act requirements
that general permits result in only
minimal adverse impacts to the aquatic
environment. One of these commenters
stated that stream restoration experts
have concluded that it is not possible to
recreate streams on most mined areas,
therefore, the loss of these stream miles
and the functions they provide to the
aquatic ecosystems downstream is a
permanent loss and, for the purposes of
a Section 404 impact assessment, the
stream losses cannot be adequately
compensated. One commenter, although
supporting the requirement of
mitigation beyond what the State
requires under the project's coal mining
permit, still opposes NWP 21 because it
illegally jumps from avoidance and past
minimization directly to mitigation.
This commenter also voiced concern
over a lack of alternative analysis for
placement of fill into waters of U.S. by
any state or Federal agency for these
proposed valley fills. Another
commenter recommended that any
mitigation plan be coordinated and
approved by all involved regulatory and
commenting resource agencies prior to
the NWP approval.
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2043
We feel we are avoiding and
minimizing impacts to the extent
practicable and that adequate
mitigation, especially in the form of
enhancement or rehabilitation of
existing streams through activities such
as stabilizing old mined sites to reduce:
stream sedimentation and reduction in
acidic water releases, can be used to
determine that a project has minimal
impacts, both individually and
cumulatively, on the aquatic
environment. These activities can result
in a substantial improvement in
downstream water quality and aquatic
habitat within a watershed. .''
A few commenters agreed with the
proposed changes to NWP 21 because of
the varying goals of the SMCRA and the
CWA program and the wetland
mitigation plan requirement. One
commenter stated that the review
proposed would be valuable in ensuring
the requirement of equity between coal
mining activities and other wetland
impacting activities, and indicated that
while most NPDES permits include
conditions to protect against stream
impacts, they do not usually address
wetland impacts. In addition, there are
no clear standards for stream
replacement, leading to poor
reconstruction techniques with little or
no restoration of habitat functions.
As stated above, the Corps is in the
process of designing stream function
protocols to aid in evaluating mitigation
projects.
This commenter recommends that the
following language be included into the
permit language: "Compensatory
mitigation will be required to offset
losses of waters of the U.S., consistent
with General Condition 19".
We do not agree this is necessary, as
General Condition 19 applies to all
nationwide permits and does not need
to be specifically repeated in this NWP,
however, we agree with the intent of
this statement. . .
Two commenters suggested that at the
very least, bonding of mitigation .
measures should be required in all
cases. One of these commenters argued
that performance bonds under 30 U.S.C.
1269 should not be used by the Section
404 program because of the limitations
imposed on these bonds. For instance,
neither state regulatory authorities nor
OSM have authority to impose bond
liabilities on regulated mines beyond
those specified in the mining law which
are established by law as that amount
needed to assure completion of the
reclamation plan required under 30
U.S.C. 1268 and not section 404 of the
CWA. Also, if there was a violation of
the Corps mitigation conditions, the
Corps would not have authority to
direct the expenditure of those funds.
Requiring a bond by the Corps in
certain cases is consistent with existing
policy and the Corps will continue to do
so as it deems appropriate.
General Condition 4
One commenter stated that the
purpose of valley fills is not to impound
water but rather to dispose of
overburden or waste material.
Furthermore, the commenter asserted
that a valley fill is an activity that
completely eliminates the possibility of
movement and survival of aquatic life.
The commenter asserted the Bragg
Settlement contains nothing that even
remotely purports to modify any Corps
regulation * * *. The Corps must still
comply with these and all other
statutory and regulatory requirements".
The commenter indicated that
completely filling streams by valley
filling affects, the necessary life
movements of all aquatic life that must
move within or between those streams.
Furthermore, the commenter asserted,
valley filling violates the General
Condition because not only does it
preclude movement of species, but
destroys the species themselves.
Generally, proposed projects are
located at the upper limits of the
watersheds and are not interfering with
aquatic species migration.
« It is our position that this NWP is
useful in expediting the processing of
permits for some surface coal mining
operations provided that adequate
compensatory mitigation accompanies
the activity so that there is an overall
net improvement in functions of the
aquatic environment. Our scope of
analysis will continue to be limited to
the impacts to the aquatic environment.
The locations of the mines are
dependent on location of the coal
seams.
The existing permit relies primarily
on any state-required mitigation under
SMCRA to address impacts to the
aquatic environment. The Corps has
determined that this is not appropriate,
as the requirements of SMCRA differ .
from those of the CWA and reliance on
SMCRA authorization may not result in
adequate mitigation for adverse impacts
to the aquatic environment. 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 U.S. 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. This
permit will be reissued as proposed.
22. Removal of Vessels. There were no
changes proposed to this nationwide
permit. There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
23. Approved Categorical Exclusions.
There were no changes proposed to this
nationwide permit. One commenter
indicated that although the Office of the
Chief of Engineers "may have been
furnished notice of a list of activities,
and concurred, a list of activities did not
appear to have been included in the
referenced August 9, 2001, Federal
Register notice on which the reissuance
of the NWP Program will be based/The
commenter further stated that the
absence of this critical information
mirrors the Corps piece-mealing
approach to Regulatory implementation
of the CWA that is found in the issuance
of Corps permits in the southeastern
U.S. The commenter also stated that
because of the lack of this information,
the public is unable to determine
whether new information supporting
reversal may have become available
since the decisions that these activities
do not have a significant effect on the
human environment. Another
commenter stated that this permit
illegally delegates to other federal
agencies the ability to decide whether
their projects will result in more than
minimal impacts. The permit effectively
has no ceiling on individual or
cumulative impacts and covers a broad
range of activities. An additional
commenter suggested that the NWP 23
activities listed are extremely dissimilar
in nature and impact. It is not possible
for the agencies to have made a
reasonable evaluation of the cumulative
impacts of all of the activities in this
permit.
When the Corps considers whether an
agency's categorical exclusions have no
more than minimal adverse effects on
the aquatic environment and whether
they could be authorized by this NWP,
the Corps first seeks public comment
and publishes the proposal in the
Federal Register. The Corps then
determines whether the agencies
categorical exclusions have no more
than minimal adverse effects on the
aquatic environment. The Corps has not
approved all agency categorical
exclusions, has added further
conditions and has required pre-
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construction notifications to ensure that
there are no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively.
Furthermore, Corps districts and
divisions have the discretionary
authority to require regional conditions,
case-specific conditions or individual
permits where the adverse effects may
be more than minimal.
One commenter indicated that all
projects requiring stream channelization
should he evaluated through the
Individual Permit process. Another
commenter suggested projects affecting
more than Vioth acre of wetland should
require a pro-construction notification
to the Corps and those affecting Va acre
should require an Individual Permit. A
commenter recommended all bridge
projects that are not longer than 1.5
times bankfull width should be elevated
to an individual permit process.
General condition 21 contains
provisions to minimize adverse impacts
related to water movement, including
channelization and passage of high
water flows. When reviewing an
agency's categorical exclusion for
approval under this NWP the Corps
considers the need for a pre-
construction notification. We have
required a pre-construction notification
where we believe that it was necessary
to ensure that the adverse effects would
be no more than minimal, and we have
required the individual permit process,
where needed. The nationwide permit is
reissued without change.
24. State Administered Section 404
Programs. There were no changes
proposed to this nationwide permit.
One commenter stated that applicants
will find it difficult to keep up with a
complex matrix of non-uniform
approaches to regulating water bodies if
states across the country run their
section 404 programs differently.
The Corps recognizes that nationally
there may oe different approaches by
the states toward regulating section 404
discharges into those waters. However,
the Corps will not change the way the
states regulate in those waters by
requiring a Corps individual permit
process. Currently, this NWP is only
applicable in the States of Michigan and
New Jersey, which have assumed the
Clean Water Act section 404 authority
in Navigable Waters of the United States
based on historic use only. In those
waters, which are subject to section 10
of the Rivers and Harbors Act based
solely on the historic use for interstate
waterborne commerce, the state
administers the Section 404 program
while the Corps has a permit role under
Section 10. Those waters do not have
current nor are they susceptible to use
for water borne commerce. The Corps
believes that the states are considering
and adequately addressing the
environmental impacts of these projects.
The Corps further believes that there are
no impacts affecting waterborne
commerce needing Section 10 review.
Therefore, there is no need to process an
individual permit for these activities.
The nationwide permit is reissued
without change.
25. Structural Discharges. There were
no changes proposed to this nationwide
permit. There were no comments on this
nationwide permit. The nationwide
permit is reissued without change.
26. [Reserved] One commenter
indicated that, if reissued, NWP 26 must
be modified to significantly lower the
threshold of activities not requiring an
individual permit.
There are no plans to reissue NWP 26.
This NWP expired on June 7, 2000. The
number 26 is being reserved to avoid the
need to .renumber all of the subsequent
NWPs. We believe that renumbering
NWPs 27 through 44 would be
confusing and unnecessary.
27. Wetland and Riparian Restoration
and Creation Activities: In the August 9,
2001, Federal Register notice, we
proposed to modify this NWP by
combining two categories of land ("any
Federal land" and "any private or
public land") into a single category:
"any other public, private, or tribal
lands". Therefore, there would be three
categories of land that would be eligible
for NWP 27 activities, instead of four
categories. This change will not affect
how or if any activities will be
authorized by this NWP.
Many commenters supported the
Corps proposal to combine the four
categories of lands into three categories.
A commenter recommended limiting
the use of this NWP to activities
conducted or sponsored by Federal or
state agencies. One commenter
suggested adding the National Marine
Fisheries Service and the National
Ocean Service to paragraph (a)(l). This
commenter also recommended adding
"the construction of oyster habitat over
unvegetated bottom in tidal waters" to
the list of examples of activities
authorized by this permit. This
commenter said that these changes
would result in a reduction in Corps
workload, and authorize activities
conducted under National Marine
Fisheries Service and National Ocean
Service restoration grant programs.
To simplify the descriptions of the
types of lands eligible for this NWP, we
are combining paragraphs (a)(2) and
(a)(4) of NWP 27 to read as "any other
public, private, or tribal land" in
paragraph (a)(3). The previous text of
paragraph (a)(3) has been moved to
paragraph (a)(2).
We do not agree that this NWP should
be limited to activities conducted or
sponsored by Federal or state agencies,
because such a restriction would affect
the ability of the Corps to effectively
authorize aquatic habitat restoration or
creation (establishment) activities
conducted by individuals, non-
government organizations, or local
governments. We have added "the
construction of oyster habitat over
unvegetated bottom in tidal waters" to
the list of examples of activities
authorized by this NWP. Since the
construction of oyster habitat in tidal
waters could potentially affect
navigation, it is important to consider
General Condition 1. The construction
of oyster habitat in tidal waters cannot
have a more than minimal adverse effect
on navigation.
We have modified paragraph (a)(l) to
include restoration activities undertaken
through the programs of the National
Marine Fisheries Service and the
National Ocean Service. In addition, we
. have modified the text of this NWP by
adding the phrase " * * *, to the extent
that a Corps permit is required, * * * "
after the phrase "Activities authorized
by this NWP include * * *".
One commenter stated that, even
though activities authorized by permit
would result in an increase of wetland
habitat, NWP 27 should have an upper
limit to require more detailed review of
restoration and creation projects that
involve larger impacts to wetlands.
Another commenter said that an acreage
limit is needed for this NWP because
there are inadequate assurances that it
authorizes only activities with minimal
adverse environmental effects. This
commenter suggested imposing a 250
linear foot limit and a V4 acre limit on
wetland impacts for restoration
activities and a five acre limit for
wetland enhancement projects. This
commenter also recommended requiring
notification and agency coordination for
all activities undertaken by private
individuals that impact wetlands or
more than 100 linear feet of stream, with
the notification including
documentation of the hydrblogic
analyses used to design the project.
Another commenter said that the
"wetland enhancement, restoration or
creation agreement" described in
paragraph (a)(l) should be reviewed and
approved by the Corps and other
resource agencies and each agreement
should have enforceable conditions,
We do not agree that acreage or linear
limits are necessary for this NWP, since
it authorizes activities that restore,
enhance, or create aquatic habitats. The
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2045
terms of this NWP, as wellas the
notification requirements described in
paragraph (b), will ensure that the
activities authorized by this NWP result
only in minimal, adverse effects on the
aquatic environment. District engineers
will review pre-construction
notifications for activities on public and
private land not conducted under the
terms ,of paragraphs (a)(l) or (a)(2) and
determine whether those activities will
result in minimal adverse effects on the ,
aquatic environment. Agency
coordination is not necessary for NWP
27 activities undertaken by private
individuals because Corpslpersonnel
have the expertise necessary to evaluate
proposed NWP 27 activities. We do not
believe that it is necessary for the Corps
and other resource agencies to review
agreements between landowners and the
U.S. Fish and Wildlife Service or ,
Natural Resources' Conservation Service.
We concur that these agreements should
have enforceable conditions.
One commenter suggested adding the
phrase "* * * and the planting of
appropriate wetland species" after the
phrase"* * *.activities needed to
reestablish vegetation' * * *" and
changing"* * * mechanized land
clearing to remove undesirable
vegetation* * *"to"* *!*
mechanized land clearing to remove
non-native invasive, exotic or nuisance
vegetation * * *".
We concur with these
recommendations and have made these
changes to the text of the NWP.
One commenter objected to the
reissuance of this NWP, stating that it
lacks effective oversight, especially for
activities on public and private lands,
its use has not been effectively
monitored in the Corps regulatory
database, and the terms "restoration"
and "enhancement" are inadequately
defined. To address these concerns, this
commenter suggested that all projects
must be subjected to strict, enforceable
success criteria; all failed projects must
be corrected to offset any adverse
impacts to waters of the United States;
all permitted projects must be overseen
by a qualified restoration specialist;
only those activities with high
likelihood of success should be
approved; include a more extensive list
of activities not authorized by NWP 27;
prohibit the use of NWP 27 to construct
compensatory mitigation projects; and
limit NWP 27 to one use per applicant
per stream. One commenter said that
this NWP should not authorize the
construction of mitigation banks.
As with all NWPs, the use of this
NWP is monitored by each of the Corps
districts, to ensure that it authorizes
only those activities with individual
and cumulative adverse effects on the
aquatic environment.
Since the publication of five new and
six modified NWPs in the March 9,
2000, issue of the Federal Register (65
FR 12818), the terms "restoration" and
"enhancement" have been denned in
the "Definitions" section of the NWPs.
Since that time, the Federal government
has adopted new definitions for
purposes of tracking losses and gains of
wetlands under the previous
Administration's Clean Water
ActionPlan. The new definitions also
apply to mitigation activities for other
types of aquatic habitats. Under the new
definition for restoration, there are two
types activities: re-establishment and
rehabilitation. Re-establishment
involves the rebuilding of a former
wetland, resulting in a net gain in .
wetland acres. Rehabilitation involves
the manipulation of a degraded wetland
to repair natural or historic functions,
but does not result in a net gain in
wetland acres. Enhancement is the
manipulation of a wetland for a specific
purpose, resulting in increases in some
wetland functions and declines in other
wetland functions, with no gain in
wetland acres.
Where strict criteria are necessary to
ensure the success of stream or wetland
restoration projects, district engineers
can add special conditions to NWP 27
authorizations to specify success
criteria. If those success criteria are not
met, district engineers can use their
enforcement authority to require the
permittee to identify the reasons for
failure and implement necessary
remedial measures. We do not agree that
it is necessary for activities authorized
by this NWP to be overseen by qualified
restoration specialists. The text of NWP
27 clearly states what is not authorized
by the NWP; we do not believe any
additional clarification is necessary.
Since NWP 27 authorizes activities that
provide benefits for the aquatic
environment, it would not be
appropriate to limit the use of this NWP
to one time per project proponent per
stream channel.
We maintain our position that NWP
27 should authorize the construction of
compensatory mitigation sites,
including mitigation banks, provided
those sites result in net increases in
aquatic resource functions and values.
NWP 27 requires compensatory
mitigation for impacts to waters of the
United States caused by the authorized
work, as well as notification to the
district engineer in accordance with
General Condition 13. A mitigation bank
can also be authorized by NWP 27, as
long as the mitigation bank has been
approved under the 1995 Interagency
Mitigation Banking Guidelines.
One commenter recommended that
the use of this permit should be limited
to restoring streams to their historic,
undegraded states to prevent then- use
as a flood control projects. Another
commenter said that district engineers
should have the authority to waive the
prohibition against conversions of
certain types of streams or natural
wetlands to other aquatic habitat types
that could provide more environmental
benefits for local watersheds.
NWP 27 does not authorize flood
control projects. This NWP authorizes
stream restoration activities, which may
include grading stream banks and
riparian areas so that those riparian
areas are flooded more frequently by the
streams. In other words.'flood storage
capacity may be increased by a stream
restoration project, but the increase in
flood storage capacity is not the main
goal of the project. We do not agree that
this NWP should allow flexibility to
waive prohibitions against certain
conversion activities, since conversions
of streams, wetlands, and other waters
may result in more than minimal
adverse effects to the aquatic
environment. If such conversions would
provide net benefits for watersheds,
then those activities could be authorized
by other types of permits, including
standard permits.
A commenter suggested that NWP 27
should be modified to prohibit the
creation of open water areas in existing
wetlands and the relocation of existing
wetlands. One commenter supported
the provision that states this NWP does
not authorize the conversion of natural
wetlands into another aquatic use, but
recommended prohibiting the
"relocation 'of aquatic habitat types on
the project site" and prohibiting the use
of riprap or other armoring material.
One commenter said that activities
authorized by this NWP should not be
allowed to alter the basic functions and
habitat of "high quality wetlands" and
that all projects should have a long-term
management plan with a binding
contract between the landowner and the
Federal and state fish and wildlife
agencies, not the Natural Resources
Conservation Service.
We maintain our position that the
relocation of non-tidal waters, including
non-tidal wetlands, on the project site
should be authorized by this NWP,
provided there are net gains in aquatic
resource functions and values. We do
not agree that this NWP should prohibit
the use of riprap because riprap
contains crevices and other habitat
features for small organisms. Other
armoring materials can provide habitat
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for aquatic organisms. The use of
armoring materials for stream and
wetland restoration activities is at the
discretion of the district engineer. We
do not agree that it is necessary to have
a long-term management plan with a
binding agreement between landowners
and the Federal and state fish and
wildlife agencies for all activities
authorized by this NWP.
One commenter said that some
activities authorized by this NWP do not
comply with the Clean Water Act. One
example offered by this commenter is
the conversion of waters of the United
States to storm water treatment facilities
and sewage treatment facilities, under
the guise of restoration and mitigation.
This commenter states that NWP 27
should be revoked because the activities
authorized by this NWP are not similar
in nature and it is unreasonable to
conclude that all of the cumulative
adverse impacts on the human
environment could be considered for
such a category of dissimilar activities.
This NWP does not authorize the
construction of storm water
management facilities or sewage
treatment facilities. Storm water
management facilities and sewage
treatment facilities may be authorized
by NWP 43 or individual permits. The
activities authorized by NWP 27 comply
with the similar in nature requirement
for general permits. This NWP
authorizes aquatic habitat restoration,
creation, and enhancement activities
that provide benefits for the aquatic and
human environments. NWP 27 is
reissued with the modification
discussed above.
28. Modifications of Existing Marinas.
There were no changes proposed to this
nationwide permit. There were no
comments on this nationwide permit.
The nationwide permit is reissued
without change.
29. Single-family Housing. There were
no changes proposed to this nationwide
permit. One commenter stated that the
Corps has failed to demonstrate with
substantial evidence that the acreage
limits applicable to this and many other
NWPs is sufficiently protective of the
environment. The commenter also
stated that the Corps must validate, with
evidence and an environmental impact
analysis, the acreage limits it sets for all
NWPs. Another commenter said that
single-family housing is not a water
dependent activity, and therefore it is
presumed that alternative locations are
available for these activities. That
commenter also stated that activities
authorized by this permit are not similar
and result in more than minimal
adverse environmental effects, even
individually, much less cumulatively
and, that the acreage limits are arbitrary
and capricious. Another commenter
recommended a full environmental
impact statement and, at a minimum,
only use the permit to authorize homes,
without attendant features, with a Via
acre limit and that the Corps establish
a process to monitor cumulative impacts
over time. The commenter also
recommended the Corps prohibit use of
this permit in high growth counties and
that it not be used to authorize
placement of septic tanks or leach fields
in wetlands.
The Corps believe that the listing of
the type of activities authorized by this
NWP will ensure that those activities
authorized by this NWP will be similar
in nature. Further, we believe that
normally these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Therefore we find that the
NWPs do not require an EIS. However,
we do prepare environmental
assessments to assess potential impacts.
NWP 29 was originally issued with a Vz
acre maximum limit. We reviewed this
threshold in 1999 and decided to reduce
the maximum acreage limit for NWP 29
to V4 acres. We continue to believe .that
this is the appropriate maximum
acreage limit. The environmental
assessment for this NWP is published
on our webpage for review. It is true that
the activities authorized by the NWP are
not water dependent as defined in the
Section 404(b)(l) guidelines. However,
the alternatives test does not apply to
NWPs as stated in the 404(b)(l)
guidelines. Therefore, it is not presumed
that alternative locations are available
for these activities. Furthermore, the
EPA and the Corps issued additional
guidance on March 6,1995 regarding
compliance with the Section 404(b)(l)
guidelines for small landowners. These
activities comply with this guidance.
This guidance is also available on the
Corps webpage. The nationwide permit
is reissued without change.
30. Moist Soil Management for
Wildlife. There were no changes
proposed to this nationwide permit.
One commenter suggested that this
permit be revised to allow local public
agencies to conduct these activities,
especially when they would result in
environmentally useful activities.
Another commenter stated that, because
the activities authorized by this permit
are not similar, the permit should be
withdrawn. They go on to say that since
the general public cannot determine
what activities are authorized by this
permit, direct, indirect, or secondary'
impacts cannot be determined to result
in minimal adverse environmental
impacts.
We agree that this NWP should also
allow local agencies to conduct these
activities on public property. Therefore
we have modified the NWP to allow
activities on local government agency
owned or managed property to also be
authorized by this NWP. We believe that
the terms and conditions will ensure
that the adverse effect on the aquatic
environment, will be minimal. Further
we believe this change will provide for
additional opportunities for activities to
provide needed environmental benefits.
Also should some of these activities
have the possibility to have adverse
environmental effects, the Corps
districts or divisions have the
discretionary authority to require
activity specific conditions or regional
conditions. We believe that the listing of
the type of activities will ensure that
those activities authorized by this NWP
will be similar in nature. Further, we
believe that normally these activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. Further,
Division and District Engineers will
condition such activities where
necessary to ensure that these activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. The
nationwide permit is reissued with the
change described above.
31. Maintenance of Existing Flood
Control Facilities. The Corps proposed
to modify NWP 31 to clarify Corps
policy and requirements regarding
mitigation for maintenance activities.
We also proposed 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 to ensure that adverse
environmental effects are no more than
minimal.
Two commenters insisted that the
language of this NWP must be clear that
exempt facilities are not now regulated
and they suggested that facilities built
prior to, or that were not subject to . .
mitigation as part of the CWA, should
not now be subject to mitigation
requirements for routine maintenance.
They suggested that the language of the
currently,proposed NWP conflicts with
the Corps policy indicating that routine
maintenance impacts are temporary and
generally not worthy of mitigation. They
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2047
questioned how one mitigates for
"unspecified discharges". They also
agree with the Corps Civil Works" policy
that one-time mitigation should be
required as part of the project and
should address all permanent and
temporary impacts, and that this should
be required at the time the project is
initially constructed. Most commeriters
agreed that a one time mitigation
requirement for these maintenance
projects may be appropriate.
We do not agree that discharges of
dredged or fill material in waters of the
United States that are part of a pre-Clean
Water Act flood control facility are
exempt from permit or mitigation
requirements. Although discharges
associated with the construction of
facilities that pre-date the Clean Water
Act are not subject to any retroactive
authorization requirement.jwaters of the
U.S. flowing through such facilities are
not excluded from jurisdiction under
the Act. As such, discharges of dredged
or fill materials into these waters remain
subject to section 404 requirements.
NWP 31 conveys the section 404
authorization for discharges associated
with flood control facility maintenance
activities, provided (1) That a
maintenance baseline is established, (2)
that the adverse effects of discharges
associated with establishing that
baseline are adequately mitigated, and
(3) that discharges associated with
subsequent maintenance activities do
not alter the maintenance baseline. We
believe that mitigation need only be
imposed once, as part of the
establishment of the maintenance
baseline, to ensure that the loss of
waters of the U.S. that are attributable
to discharges associated with the
establishment of that baseline are no
more than minimal. Once this is
accomplished, regulated discharges that
are associated with maintaining the
established baseline, and that do not
incur losses beyond those addressed in
conjunction with the establishment of
that baseline, are authorized under NWP
31 without the need for further
mitigation.
We believe that the utilization of the
"maintenance baseline" procedure is
consistent with Corps policy to the
effect that "routine maintenance
impacts are temporary and generally not
worthy of mitigation." The maintenance
baseline establishes the limits within-
which regulated maintenance-related
discharges are authorized by NWP 31,
and excluded from additional mitigation
requirements. We agree that, ideally, all
mitigation for permanent and temporary
impacts resulting from the construction
of flood control facilities, and from the
inevitable maintenance, should be
imposed only once, at the time of initial
construction. The Clean Water Act does
not provide an exemption for discharges
into the waters of the U.S. specifically
for maintenance of flood control
facilities. Unless section 404
authorization for discharges associated
with regulated construction and
maintenance activities has been
conveyed through some other means,
such as through the Federal Project
authorization process, authorization
through the Corps permit process is
required. As previously indicated,
although section 404 authorization is
not required for discharges associated
with flood control facility construction
that pre-dates the Clean Water Act, the
Act does not exempt discharges in
waters of the U.S. that may accompany
the maintenance of these facilities. We
believe that NWP 31, with the inclusion
of the maintenance baseline provision,
is a reasonable and appropriate
procedure for conveying the section 404
authorization required for maintenance-
related discharges that have not been
previously authorized through other
means. Finally, the question as to how
one mitigates for "unspecified
discharges" is, we believe, based on a
misprint in the original Federal Register
notice. The preamble, at page 42077 of
this notice indicates that we intended to
"* * * proactively prescribe mitigation
for * * * unspecified discharges
* * *" (emphasis added). This sentence
should have read "* * * proactively
proscribe mitigation for * * *
unspecified discharges * * *"
One commenter suggested that the
mitigation requirement should consider
future, cumulative impacts as these
.impacts would likely result in more
than minimal adverse impacts to aquatic
resources.
We believe that mitigation
requirements associated with NWP 31,
as proposed, are sufficient to account for
future, cumulative impacts. As
envisioned, mitigation will be required
for adverse effects on the aquatic
environment that are attributable to
regulated discharges associated with the
establishment of the baseline physical
parameters (i.e., the maintenance
baseline) of the flood control facility.
Maintenance-related discharges that do
.not exceed the established maintenance
baseline will not result in losses of
aquatic resources beyond those
addressed at the.time the maintenance
baseline is established. Discharges that
exceed the established maintenance
baseline are not eligible for
authorization under NWP 31.
One commenter stated that baseline
criteria are often difficult to produce,
especially for much smaller drainage/
utility districts which may not have nor
maintain such records. Two other
commenters indicated their support for
revisions to this permit which recognize
that cyclic maintenance is inherent in
the continued operation of flood control
facilities, and that regulated discharges
will inevitably occur as a result of this
activity. They also support the revisions
allowing discharges in emergency
situations. They suggested that the
Corps should clarify that, in situations
where baseline information is
unavailable due to the age of the facility,
lack of construction drawings will not
preclude use of this NWP.
We acknowledge that producing
records of baseline parameters may not
be possible in all cases, but we can not
waive this requirement. In these cases,
a new maintenance baseline must be
established before the maintenance-
related discharges in the subject facility
are eligible for authorization under
NWP 31.
One commenter suggested that the
proposal to authorize maintenance
activities on natural features is a
departure from previous practice and
creates the greatest risk for more than
minimal adverse environmental
impacts. Also, they state that they
believe it is critical that the Corps
articulate its basis for extending
authorization into areas that previously
have been prohibited under this NWP,
as well as an explanation as to why it
believes that adequate protection will be
provided through the use of BMPs. They
want the Corps to clarify under what
circumstances it considers a natural
segment to be "incorporated" into a
flood control facility, as the term may be
interpreted broadly to the detriment of
aquatic resources. Lastly, they also
believe that the open ended nature of
the provision may lead to greater than
minimal impacts and confusion after the
activities are completed, when
mitigation is required, and urge the
Corps to make clear that this provision
only applies to situations satisfying the
minimal effects test in light of existing
regulatory provisions that already
provide for emergency permitting.
The incorporation of natural areas
into an overall flood control facility is
accomplished through the establishment
of a maintenance baseline that includes
these areas. Although the current NWP
31 differs from its predecessor with
respect to the treatment of these natural
areas, this NWP does not authorize
discharges that exceed this baseline. As
such, NWP 31 does not authorize any
regulated discharge that results in the
further loss of jurisdictional aquatic
areas in the flood control facility,
including those in the subject natural
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areas. Upon incorporation in the
maintenance baseline, the physical
parameters of the natural area can be
maintained, but not exceeded, through
maintenance activities that may involve
regulated discharges that are authorized
by NWP 31. For example, scoured banks
in a natural area may be restored to the
baseline condition (but only restored,
not exceeded) through a discharge of fill
material that is authorized under NWP
31. Beyond this, the application of Best
Management Practices (such as a time-
of-year restriction on the discharge) may
further minimize adverse effects on the
aquatic environment. As with all NWPs,
Corps Districts may "override" the use
of this NWP by requiring individual
permits in situations where the District
exceed the minimal level. In light of
these factors, we do not agree that the
concerns presented in this comment
warrant further modification of NWP 31.
One commenter objects to the "one-
time mitigation requirement" as the
Corps has not satisfactorily
demonstrated that compensatory
mitigation is successful in replacing the
lost functions and values destroyed
through the original construction of the
flood control facility. They also state
that it is impossible to pre-determine
the magnitude of potential adverse
impacts when there are no limits on the
acreage of impacts or cubic yardage of
excavation authorized under this
permit.
Excavation in waters of the U.S. that
results in only incidental fallback is not
regulated under section 404 of the Clean
Water Act, and such activities are not
subject to mitigation requirements
imposed under that law. Regardless, in
the context of the NWPs, the mitigation
of the adverse effects of regulated
activities need only offset those effects
such that "no more than minimal"
adverse effects remain, and not
necessarily to guarantee that losses are
exhaustively compensated. NWP 31
authorizes maintenance-related
discharges that are subject to regulation
under section 404. The establishment of
the maintenance baseline, in effect,
identifies the location and physical
dimensions of waters of the U.S. that
have been incorporated in the flood
control facility. Discharges that result in
losses of these waters (i.e., that exceed
the maintenance baseline) are not
eligible for authorization under NWP
31. In light of this, we believe that the
"one time mitigation requirement"
imposed in conjunction with the
establishment of the maintenance
baseline is sufficient for the purpose of
this NWP.
One commenter indicated that there
are far too many unclear considerations
in this permit for it to protect water
quality and critical aquatic habitat. They
recommend the Corps (1) Process
emergency activities through individual
permits, (2) maintain and strengthen
existing mitigation requirements for
unavoidable impacts and amend as
needed to comport with aquatic habitat
changes, (3) develop a clear definition of
acceptable maintenance baselines and a
clear explanation of what constitutes
suitable documentation, and (4) include
adequate conditions that further protect
water quality and aquatic habitat and
must allow comment from the public
prior to adoption and implementation.
Although we respect the concerns that
are implicit in this comment, we do not
agree that further modification or
elaboration of NWP 31 (or of our
emergency permit procedures) is a
necessary or appropriate way to address
them. In adopting generic permits such
as NWP 31, and in designing emergency
procedures for nationwide application,
we try to avoid being unnecessarily
prescriptive or restrictive. Our intent is
to afford Corps Division and District
offices with significant discretion and
latitude as to the final application of the
NWP program and the emergency
procedures, in order to allow them to
tailor the actual application of the
NWPs to the nuances of local situations
that we can not anticipate.'Toward this
end, we strive to make the generic
NWPs as broad as possible within the
constraints imposed by the law and
related regulations, in order to
maximize the potential applicability of
these permits. At the same time, we
provide our Division and District offices
with the authority to further condition,
modify, suspend, or revoke these
permits in response to regional or local
conditions that demand such actions to
ensure that effects remain at or below
the "minimal" level. The corollary to
that authority is the Division and
District responsibility to ensure that the
"no more than minimal" threshold is
not exceeded by individual activities
authorized under a NWP.
One commenter recommended that
the Corps consider a review of potential
cost to the applicant in establishing a
maintenance baseline on a given project.
They also opined that any review of
whether a project has been abandoned
should consider more than just time in
that decision-making process due to the
fact that the financial resources to
perform that maintenance in what might
be considered a timely manner are not
always available.
Although we. are aware of the
importance of cost considerations to all
applicants for Corps permits, we have
no authority to waive requirements
under the law because of these
considerations. The establishment of a
maintenance baseline is the key
component of NWP 31 because it
delineates parameters of waters of the
U.S. that are incorporated into the flood
control facility, within which regulated
discharges are eligible for authorization
under the NWP. As such, we can not
factor cost considerations into the
requirements for establishing a
maintenance baseline. We believe that
NWP 31, as proposed, does not compel
an abandonment determination to be
based exclusively on the time that
elapses between maintenance events.
This provision of NWP 31 takes into
account whether the capacity has been
significantly reduced, and whether
maintenance was needed but not
performed, in addition to consideration
of the length of time during which the
capacity has been significantly reduced,
and during which needed maintenance
was not performed. The non-specific
nature of the facets of this provision is
deliberate, as is the absence of a
consideration of environmentally
beneficial features, such as wetlands,
that may have developed between
maintenance events. Our awareness of
some of the practical realities of
operating and maintaining flood control
facilities encourages us to believe that
the bar should be set fairly high for
determining that such a facility has been
abandoned for the purposed of NWP 31.
One commenter suggested that the
development of the "maintenance
baseline" to be employed at these
facilities should account for channel
and habitat characteristics associated
with a hydrogeomorphic approach.
The establishment of the maintenance
baseline is related to ensuring that
losses of waters of the United States,
beyond those addressed in conjunction
with such establishment, do not occur
as a result of regulated discharges that
are authorized by the NWP. We do not
believe that formalized assessment
methodologies are necessary to
accomplish this. The implication of this
suggestion is that NWP 31 procedures
should be used to determine baseline
channel and habitat characteristics,
which could then be maintained
through subsequent authorizations
under the NWP. We do not believe that
this is practical or appropriate. Many
maintenance activities that are not
subject to regulation under section 404
of the Clean Water Act, such as
excavation that results hi only
incidental fallback, are likely to affect
channel and habitat characteristics as
much as, or more than, the kinds of
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2049
discharges that are regulated under
NWP 31. We do not believe^that it is
appropriate to use this NWP to regulate
effects that are not attributable to
regulated activities.
Two commenters stated that the
periodic maintenance of flood control
facilities is required for the ^operation of
those facilities and will not!have a
significant adverse impact on the
environment when conducted within
the maintenance baselines for such ,
facilities. They support the clarification
proposed fdr NWP 31 that maintenance
of these facilities do not require
compensatory mitigation when
approved BMPs are utilized.
We believe that the maintenance
baseline procedure, in combination with
the imposition of BMPs, will preclude
the need for mitigation for regulated
discharges associated with routine and
recurrent maintenance activities in most
cases. However, in designing
nationwide generic permits such as
NWP 31, we ultimately rely on our
Division and District offices to provide
the final surety that the specific
regulated activities that are>authorized
under the NWPs do not result in more
than minimal effects. To ensure that the
"minimal effect" threshold is not
exceeded in individual cases, we
believe that the Divisions and Districts
must continue to have the authority to
impose mitigation requirements in
addition to BMPs as a means of
achieving this. . ' .
Three commenters stated that the
Corps should not regulate temporary
discharges associated with maintenance
activities within the flood control
facilities since there is not a permanent
impact. They state that NWP 31 should
make it clear that temporary stockpiles
and redeposits associated with
otherwise unregulated excavation is not
a loss of a water of the U.S. that requires
compensatory mitigation. They also
state this holds true for other
maintenance activities associated with
the flood control facility that are not
within Corps jurisdiction, i.e., mowing
or brush hogging. In addition, they
assert, if the flood control facility was
constructed by the Corps and turned
over to a local or state agency for
maintenance, and did not mitigate for
the maintenance of its project, the
receiving agency should not be
burdened with the Corps omission.
They also suggest that ensuring that
mitigation and/or ESA surveys would
not be required if the maintainer
reduced the frequency of routine
maintenance might be a valuable
mitigation tool in and of itself. Lastly,
the Corps should provide a means that
minimal impact NWP 31 activities
could be authorized without a PCN.
We agree that, in situations where
there is no permanent loss of waters of
the U.S., no mitigation for such
temporary effects is required. However,
this does not exempt temporary
discharges from the need for section 404
authorization, even when those
discharges are only incidental to
otherwise unregulated activities.
Generally, we believe that it is not
appropriate to impose mitigation for
effects attributable to unregulated
activities, such as excavation that
results in only incidental fallback, but to
the extent that significant regulated
discharges may accompany some
unregulated maintenance activity,
mitigation may be required to ensure
that there are no more than minimal
adverse effects. We believe that such
determinations must be made on a case-
by-case basis, as individual NWP
authorizations are confirmed.
We do not intend to impose any
restriction on the frequency of routine
maintenance. We believe that such
decisions should be left to those
responsible for the operation and
maintenance .of flood control facilities,
since they must often must balance
budget limitations against the projected
need for maintenance.
We do not intend to impose, on local
sponsors, any requirement to mitigate
for impacts attributable to the
construction of a Corps-constructed
flood control facility. However, many
such facilities were constructed prior to
the implementation of the Clean Water
Act, so no section 404-related mitigation
was required. Although Clean Water Act
requirements are not retroactively
imposed on the construction of these
facilities, the Corps has no authority to
exempt current discharges of dredged or
fill material that occur in conjunction
with the maintenance of the facility, or
to waive any requirement for necessary
mitigation.
Reiterating the concern of the
previous comment, another commenter
stated that, absent sufficient reasoning
for requiring a PCN, the Corps should
delete the PCN requirement from this
permit as it is costly to the applicant
both from a time and money standpoint.
We are not currently confident that
we could prescribe conditions and
limitations on potential NWP 31-
authorized discharges sufficient to
ensure that their adverse effects can :
reasonably be determined to be no more
than minimal in most cases, in the
absence of site-specific verification
through the PCN process. Conversely,
we are not certain that the PCN
requirement for this NWP could not be
relaxed at some point in the future, as
we gain greater experience with use of
the NWP. hi light of this uncertainty, we
believe that the inclusion of the PCN
requirement is prudent, fbr the current
issuance of this NWP, but the Corps will
continue to evaluate its appropriateness
for future reissuances.
- One commenter supported the
concept of maintenance baseline,
however, to assure the impacts are
minimal, suggests that the state
regulatory agencies and state and federal
resource agencies be involved in the
review and approval of the maintenance
baseline, as well as mitigation for the
projects.
The Corps believes that establishment
of the maintenance baseline is
essentially a technical exercise. Since
the maintenance baseline for NWP 31
purposes, as proposed, is a description
of the physical characteristics of the
flood control project that has been or is
being constructed through some
independent authorization, we do not
agree that coordination with state or
Federal agencies is necessary or
warranted for the establishment of the
baseline. Coordination may be necessary
or appropriate for authorization of the
project itself, depending on the terms
and conditions of the legal authority
under which project authorization
occurs.
Two commenters indicated the need
to define "best management practices"
and "maintenance baselines" so that a
true assessment of impacts resulting
from the proposed changes to the NWP
can be made. They also suggested that
the Corps should work with local
communities to restore floodplain
functions, where possible, and maintain
existing wetlands to help moderate peak
flows.
We believe that the concepts of "best
management practices" and of the
"maintenance baseline" do not need
further definition in order to adequately
understand the impacts of this NWP.
Through the Regulatory Program, and
through other Civil Works and Military
Programs, the Corps does work with
local communities to restore floodplain
functions and to maintain and restore
wetlands, but these comments are
outside the scope of NWP ,
considerations.
One commenter indicated the changes
to this permit could allow any stream
that has been deemed incorporated into
a "flood control facility" to be routinely
maintained with little or no mitigation
. required. He suggested that mitigation
should be required for all maintenance
activities.
In issuing this NWP, it is our intent
to provide for identification of the
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extent of waters of the U.S. that exist
within the flood control facility, and to
authorize maintenance-related,
regulated discharges in a manner that
does not result in a net loss of these
waters. We believe that it is appropriate
to include streams that have been
incorporated into flood control facilities
through the establishment of a
maintenance baseline. As long as the
maintenance baseline is not exceeded,
we believe that the authorization of
maintenance-related discharges, with
little or no mitigation, is adequate and
appropriate, both in areas that include
structural features and hi those that do
not. In light of the fact that only the
discharge associated with maintenance
activities requires a CWA section 404
permit and other maintenance activities
may not be regulated even if conducted
in section 404-only waters, we do not
believe that mitigation for all
maintenance activities is necessary or
appropriate. It is not our intent to use
this or any NWP to require mitigation
for unregulated activities. Despite this,
Corps Division and District offices are
authorized to impose mitigation
requirements that they determine are
necessary to keep effects at a minimal
level.
One commenter suggested that
maintenance baselines be re-evaluated
periodically to determine if it still
reflects existing conditions. Two other
commenters opposed the specifications
for one-time mitigation stating that
habitat and species composition
changes over time, warranting
additional mitigation. Also, a separate
and new permit should be created
through coordination with the US Fish
and Wildlife Service for emergency
flood control work.
The maintenance baseline is intended
to be a fixed description of physical
parameters that cannot be exceeded by
regulated discharges authorized under
NWP 31. Changes in conditions in the
flood control facility are expected to
occur, and NWP 31 is intended to
authorized regulated discharges
associated with maintenance activities
that can return the facility to the
maintenance baseline condition, but not
exceed them. As such, we believe that
the maintenance baseline must remain
fixed, and that it would be
inappropriate to raise or lower the bar
in connection with periodic reviews. If
the operator of the facility wished to
change the baseline, however, they
could apply to the Corps to do so and
appropriate mitigation would be
required at the time a new baseline is
established. We believe that the current
emergency procedures, along with the
revisions to NWP 31 related to
emergency maintenance, are sufficient
to provide necessary and appropriate
environmental consideration in
emergency situations. In light of this, we
do not agree that a new permit should
be created.
One commenter who opposed NWP
31 stated that they were concerned with
the requirement for mitigation stating
that if adverse impacts truly were
minimal, then mitigation should not be
needed.
After the establishment of the
maintenance baseline, we believe that
the adverse impacts attributable to
regulated discharges associated with
maintenance activities will, indeed, be
minimal, and mitigation will not be
required. However, if the loss of waters
of the U.S. in a particular reach of a
flood control facility has hot previously
been mitigated, and a regulated
discharge associated with a needed
maintenance activity will result in such
loss, we believe that "once only"
mitigation may be required as a
prerequisite to NWP 31 eligibility, and
that it should be imposed in
conjunction with the establishment of
the maintenance baseline.
One commenter questioned whether
BMPs would adequately protect areas
covered under this NWP from
, environmental degradation and loss of
fish and wildlife habitat values.
BMPs are intended to minimize the
adverse effects of regulated activities.
With respect to NWP 31, the application
of BMPs in conjunction with the
maintenance baseline provisions is
expected to ensure that the effects of
activities authorized under this NWP
are no more than minimal. They are not
necessarily intended to prevent
environmental degradation and the loss.
of habitat values that may be
attributable to factors that are not
caused by maintenance activities.
One commenter suggested redrafting
NWP 31 to clarify what is already
exempt under statute and regulation and
to narrow its application to debris
basins and retention/detention basins,
to the portion of constructed soft bottom
channels beyond the limits reasonably
related to maintenance of the sides of
the channel, to natural watercourses
that are part of a flood control facility,
and to any other part of an existing
flood control facility that is not a
structure or a constructed fill.
Since our intent in issuing this NWP
is to assure that its applicability is as
broad as possible within the constraints
of the NWP program, we do not agree
that is necessary to impose further
limitations that are not supported by
any clear indication that such
limitations are necessary to ensure that
the effects will be no more than
minimal.
One commenter contends that it
should not be mandated that the
baseline, with supporting mitigation, be
required after-the-fact whenever.
emergency maintenance has occurred,
but instead, the actual facts associated
with the emergency related activities
should be considered. If no impacts, or
only minor impacts, occurred there
should be no need to undertake the
burdensome task of establishing a
baseline. He also suggests that the
imposition of administrative burdens to
address minor maintenance activities
essential to keeping flood control
structures in safe operating conditions,
cannot be justified and is not required
under Section 404.
Regardless of the circumstances, the
requirement to establish a maintenance
baseline is only imposed in conjunction
with the prospective use of NWP 31. If
the applicant is not willing or able to '
establish a maintenance baseline, other
Corps permit processes can be applied
to consider authorizations for discharges
associated with maintenance activities,
but necessary mitigation would be
required in any case. Since neither
emergency circumstances nor the minor
nature of a particular activity is
exempted from regulation under the
law, we can not exempt them through
the NWP process. We believe that NWP
31, as proposed, is a reasonable and
prudent way to minimize the burdens
imposed on applicants, within the
constraints of applicable law and
regulation.
One commenter requested
clarification of terms such as
"reasonably foreseeable discharges" and
"routine maintenance" and "cyclic
maintenance", as well as a clarification
of the intent of this rule. He suggested
that the rules should provide for
permitting authorization for structures
constructed by agencies other than the
Corps, with maintenance activities
focused on restoration to a specific
baseline.
We believe that the intent of this
NWP, which is to authorize discharges
associated with maintenance activities
in flood control facilities, is adequately
indicated in the NWP, as written. We do
not believe that the terms "reasonably
foreseeable discharges," "routine
maintenance" or "cyclic maintenance"
need to be further defined, since the
applicability of NWP 31 does not
depend on any precise definition of
these terms. As designed, NWP 31 does
focus on the maintenance of a
predetermined baseline. However, we
believe that the inclusion, in this NWP,
of provisions to authorize the
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construction of structures in
jurisdictional areas is not warranted.
The authorization of structures is
limited to that provided by other
applicable NWPs and standard permits.
NWP 31 authorizes regulated discharges
associated with maintenance activities
for the purposes of section 404 of the
Clean Water Act and section 10 of the
Rivers and Harbors Act. ,
One commenter stated that riverine
systems that do not have constructed
channels cannot be considered flood
control structures and the activities
proposed by this NWP woiild result in
more than minimal impacts to the
environment. He suggests, if the NWP is
issued that, at least regionally, use of
this NWP should be prohibited in areas
that are not constructed channels;
As proposed, NWP 31 addresses the
maintenance of flood control facilities,
and not just structures. This NWP
authorizes discharges associated with
maintenance activities, but it does not
subject otherwise unregulated activities
or non-jurisdictional areas! to the
requirements of applicable law. The
effects being addressed in connection
with this NWP are those that result from
regulated discharges in jurisdictional
areas. Upon the establishment of the
maintenance baseline, the effects of
'. subsequent maintenance-related
discharges that do not exceed that
baseline will, generally, be no more than
minimal.
One commenter indicated that the
NWP would result in a significant :
workload increase for the Corps as most
projects did not have a baseline
prepared and as a result, a significant
quantity of one-time-only mitigation
might be identified when these first
baselines are determined. This
mitigation would have to be reviewed
and approved by the Corps. This
mitigation preparation and execution
would also put a financial and
manpower hardship on local sponsors.
He suggests a grandfather clause so that
the projects would qualify'for NWP 31
with no requirement for baseline
determinations and/or supplemental
mitigation.
Since the Corps has no authority to
exempt discharges associated with
maintenance activities from regulation
under the law, or from corresponding
mitigation requirements, we can not
adopt a grandfather clause;to waive
these requirements. Although we
recognize that, the establishment of a
maintenance baseline, and the
imposition of related mitigation
requirements, will impose a significant
burden in some cases, we believe that
this one-time procedure is a viable way
of generally assuring that the effects of
subsequent maintenance-related
discharges are no more than minimal.
One commenter suggested that the
proposed NWP does not address
provisions of, and possible conflict
with, a recent proposed policy guidance
document for authorization of
maintenance activities through the
USAGE Civil Works Department. He
suggests specific language providing
that revised as-builts and updated
environmental surveys be submitted
rather than an EIS to authorize
maintenance activities under the Civil
Works Program. The commenter would
like to see the processes for
modification of existing manuals to
NEPA and CWA standards be more
standardized and expedited.
This comment is apparently more
concerned with the specifics of
prospective policy guidance on the
maintenance of Corps flood control
facilities, than with NWP 31 as
proposed. We believe that any
consideration of issues related to the'
effects of such policy guidance must be
deferred until such time as the policy
guidance is actually issued.
One commenter objected that the
requirements of the proposed NWP 31
extend jurisdiction to areas outside of
those regulated by the CWA, i.e., areas
which are the upland portions of
detention facilities and areas above the
normal high water level in stream
channels. If this approach is adopted,
the commenter suggests the extent of
information required is so detailed and
extensive as to make it unruly.
NWP 31 does not extend Clean Water
Act jurisdiction to areas or activities
that are not subject to that law.
Unregulated activities, and work in non-
jurisdictional areas, do not require
section 404 authorization under NWP
31 or any other Corps permit process.
The maintenance baseline provision of
NWP 31 does, by necessity, include
considerations of non-jurisdictional
areas, but this prerequisite only applies
in the context of NWP 31. Other permit
avenues, such as individual permit
procedures, remain available to consider
maintenance activities that require
section 404 authorization in
circumstances in which the
maintenance baseline information
requirements can not be accommodated
by the applicant.
One commenter requested that the
Corps revise the NWPs to eliminate the
use of the term "incidental fallback," to
avoid any requirement for the case-by-
case demonstration of proposed
equipment use, and to avoid reliance on
the "rebuttable presumption" approach
to defining "discharge of dredged
material."
We do not believe that this change is
necessary. Like all NWPs, NWP 31
authorizes only regulated discharges
and does not alter or enlarge program
jurisdiction. For example, incidental
discharges are addressed in the
regulations themselves at 33 CFR
323.2(d), and not the NWPs.
The nationwide permit is reissued as
proposed.
32, Completed Enforcement Actions
There were no changes proposed to this
nationwide permit. One commenter
suggested that NWP 32 should be
withdrawn as it is too broad for projects
to be considered "similar in nature", or
to be able to determine that the various
projects, when considered individually
or cumulatively, will result in minimal
adverse environmental effects, and that
it's limitations are arbitrary and
capricious (e.g., 5 acres, 1 acre).
The Corps believes that the
description of the type of activities will ,
ensure that those activities authorized
by this NWP will be similar in nature.
Further, we believe that normally these
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
, environment, individually and
cumulatively.
Another commenter recommended
changes to NWP 32 which would allow
restoration-based settlements for natural
resource injuries by adding the
following text: (iii) The terms of a final
court decision, consent decree, \
settlement agreement, or non-judicial
settlement agreement resulting from a
natural resource damage claim brought
by a trustee or trustees for natural
resources (as defined by the National
Contingency Plan at 40 CFR subpart G)
under section 311 of the Clean Water
Act (CWA), section 107 of the
Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA or Superfund), section
312 of the National Marine Sanctuaries
Act (NMSA), section 1002 of the Oil
Pollution Act of 1990 (OPA), or the Park
System Resource Protection Act at 16
U.S.C. 19jj. For (i), (ii), and (iii) above,
the compliance is a condition of the
NWP itself.
The Corps agrees with the commenter.
These are Federal environmental legal
resolutions that we believe should
proceed without the delays caused by
processing individual permits that
would have no added value to
resolutions under these laws. However,
we have added a clarification that this
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NWP only applies to the extent that a
Corps permit is required.
The nationwide permit'is reissued
with the change discussed above.
33. Temporary Construction, Access
and Dewatering There were no changes
proposed to this nationwide permit.
One commenter suggested that NWP 33
should be withdrawn as activities
authorized under this permit cannot be
considered "similar in nature" and do
not result in temporary or minimal
adverse environmental effects to waters
of the U.S.
The Corps believes that the
description of the type of activities will
ensure that those activities authorized
by this NWP will be similar in nature.
Further, we .believe that normally these
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. Further, Division and
District Engineers will condition such
activities where necessary to ensure that
these activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively.
The nationwide permit is reissued
without change.
34. Cranberry Production Activities
There were no changes proposed to this
nationwide permit. One commenter
recommended that the Corps not reissue
this permit as it violates section 404(e)
of the CWA and the section 404(b)(l)
Guidelines. The commenter stated that
cranberry growers are allowed to "buy
down" impacts of conversion with
compensatory mitigation and Ihat
compensatory mitigation is allowed to
take the form of preservation. The
commenter further stated that some
have indicated that cranberry
production can degrade water quality,
harm fisheries, and reduce water
quantity, each of which can
significantly, adversely affect the
aquatic environment.
The Corps believes that this NWP is
fully in compliance with section 404(e)
of the Clean Water Act. Further the
Corps believes that it is appropriate to ,
require mitigation for adverse effects of
a project and that the mitigation can be
considered when determining that the
adverse effects of a project are minimal.
The nationwide permit is reissued-
without change.
35. Maintenance Dredging of Existing
Basins There were no changes proposed
to this nationwide permit. Two
commenters pointed out that there was
a change in the proposed NWP 35
which was not mentioned in the
Preamble. Another commenter
recommended withdrawing this permit
as It is not reasonable to conclude that
the cumulative impacts of all of the
activities authorized under this category
would not result in greater than
minimal adverse environmental effect's.
The commenter stated it is reasonable to
conclude that this category of activities
would be incapable of being in
compliance with CZM programs.
The Corps agrees that there were
differences in the NWP from the 1996
NWP. However, the Corps did not
intend to propose a change to this NWP.
This was an error. This NWP will be
adopted as it has existed since 1996. We
continue to believe that the cumulative
effects of activities authorized by this
NWP will be no more than minimal
individually and cumulatively.
Furthermore, Corps districts or
divisions may add case-specific or
regional conditions where necessary to
further ensure that the adverse effects to
the aquatic environment are no more
than minimal, individually and
cumulatively. The states will review the
activities authorized by this NWP and
will agree or disagree that these
activities comply with their State CZM
programs. If the States disagree, then
activities that otherwise qualify for the
NWP will need to get an individual
State CZM concurrence before they can
proceed. If the state conditions its CZM
agreement, then those state CZM
condition will become conditions of the
NWP.
The nationwide permit is reissued
without change from the 1996 NWP.
36. Boat Ramps There were no
changes proposed to this nationwide
permit. One commenter suggested that
NWP 36 should be withdrawn as it is
unreasonable to conclude that the
cumulative impacts of all of the
activities authorized under this category
would not result in greater than
minimal adverse environmental effects.
The commenter expressed is doubt that
the adverse indirect/secondary impacts
of extracting the source materials and
subsequent degradation of water quality
associated with the use of the
construction of boat ramps has been
considered by the COE.
We continue to believe that the
cumulative effects of activities'
authorized by this NWP will be no more
than minimal, individually and
cumulatively. Furthermore, Corps
districts or divisions may add case-
specific or regional conditions where
they believe necessary to further ensure
that the adverse effects to the aquatic
environment are no more than minimal,
individually and cumulatively. The
Corps will also consider adverse effects
at borrow areas where appropriate. It
should be noted that normally the
materials for the small boat ramps are
obtained from existing borrow areas or
sources that exist independently of the
small projects. Any individual water
quality issues will be addressed by the
states through water quality
certifications, NPDES permits or other
programs. In some cases the Corps may
directly address water quality issues
when appropriate.
The nationwide permit is reissued
without change.
37. Emergency Watershed Protection
and Rehabilitation The Corps proposed
to modify this NWP to include the
Department of the Interior (DOI),
Wildland Fire Management Burned
Area Emergency Stabilization and
Rehabilitation Program (DOI Manual,
part 620, Ch. 3) to this NWP. The
existing NWP only included the Natural
Resource Conservation Service (NRCS)
and U.S. Forest Service (USFS)
Programs for emergency watershed
protection and rehabilitation. 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.
Several commenters suggested
additional changes to this NWP,
including limiting the time that the
NWP can be used after an emergency
situation, such as 2 years, and
broadening the NWP to cover State and
local emergency activities. One
commenter suggested that there were
abuses, such as converting waters of the
U.S. in the guise of restoration. Another
commenter recommended retaining the
word "exigency" in the permit language
until such time that NRCS completes
their final PEIS and modifies their
regulations accordingly to ensure that
the impacts from this category of NWP
will not exceed the minimal impact
threshold.
The Corps believes that the time
constraint and the expansion to include
State and local emergency activities
would need to be proposed before a
change could be adopted. Furthermore,
we believe that the suggested time
constraint is not needed and we are not
aware of any such abuses. The Corps
will monitor the use of this NWP and
will propose any changes that may be
necessary to ensure that any adverse
effects on the aquatic environment are
no more than minimal, individually or
cumulatively. The Corps believes that
the terminology used ts describe the
NRCS emergency situations will not
result in materially different activities
that are now covered by the NWP.
Should there be a change the Corps can
modify the NWP accordingly.
One commenter suggested: a
grammatical change, removing the
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2053
"Work done or funded by" from the
beginning of subsections "b" and "c" in
order to be consistent with subsection
"a". We concur with this comment and
have accordingly changed the NWP.
The nationwide permit is reissued as
proposed and with the change described
above.
38. Cleanup of Hazardous and Toxic.
Waste There were no changes proposed
to this nationwide permit. One
commenter indicated that this NWP
covers many different activities that are
not similar activities. The commenter
added that the NWP also lacks any
indication of a time constraint that
would constitute an "emergency"
response, which may have occurred up
to five years later in some cases. The
commenter also stated that there have
been adverse effects that occur under
the guise of so-called "Restoration".
The Corps believes that the .
description of the type of activities will
ensure that those categories of activities
authorized by this NWP will be similar
in nature. Further, we believe that
normally these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. In addition, Division
and District Engineers will Condition
such activities where necessary to
ensure that these activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. The addition of a
time constraint would need to be
proposed before a change could be
adopted. Furthermore, we believe that a
time constraint is not needed and we are
not aware of any such abuses. The Corps
will monitor the use of this NWP and
will propose any changes that may be
necessary to ensure that any adverse
effects on the aquatic environment are
no more than minimal, individually or
cumulatively. The nationwide permit is
reissued without change. ;
39. Residential, Commercial, and
Institutional Developments The Corps
proposed 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 waiver of the 300 linear-
feet prohibition following a written
determination by the Corps that any
adverse environmental effects would be
no more than minimal.
Simplify the Subdivision Provision
Several commenters supported
simplifying the subdivision provision
while several others indicated that the
existing subdivision provision should
remain. Several commenters expressed
concerns about repeated use of the NWP,
within a subdivision and supported
applying the aggregate of all fills in
waters of the U.S. to the Vz acre
threshold. Some commenters did not
want the restriction to apply to future
individual lot owners while others
wanted to ensure that it did. One
commenter asked whether the new
subdivision language would apply to all
subdivisions or would some be
grandfathered. Another expressed
concern about Corps workload and
record keeping impacts due to
grandfathered subdivision dates. One
commenter requested that individual lot
owners within a subdivision be
exempted from the subdivision
provision. Another commenter
indicated that the Via acre notification
requirement should be retained in the
subdivision provision.
The Corps continues to believe that to
make the subdivision provision
effective, it needs to be simplified. The
subdivision provision will apply to all,
but only to, residential subdivisions,
regardless of when they were built. This
will create some additional workload in
older residential subdivisions not yet
completed. However, in appropriate
cases Corps divisions and districts may
consider regional general permits or
abbreviated permit processes. Also
Corps divisions and districts may add
regional conditions to require.
notification or other restrictions when
appropriate. The subdivision provision
will apply to all lots within a residential
subdivision. Furthermore, when
authorizing future residential
subdivisions the Corps will consider the
status of lots that maybe filled in the
future and add them to the total for
determining compliance with the
aggregate Viz acre threshold. The
simplified subdivision provision will
simplify Corps record keeping and
workload. But more importantly it will
further compliance with this condition
and thus provide additional
environmental protection while
allowing those subdivisions with
minimal impact to proceed without
unnecessary costs and delays.
Delete the One-cfs Restriction on
Stream Impacts: Many commenters
objected to the removal of the one cfs
restriction on stream impacts and
requested that it be restored to ensure
that developments are not located on
flood prone property without full
individual permit review, including
public notice and comment. One
commenter recommended a preferred
modification involving retaining the
provision and proposed specific
conditions under which this provision
might be waived e.g. severe degradation.
Another commenter was concerned that
removal of this provision could
jeopardize streams considered degraded
by the Corps when that degradation
might be eliminated or reduced through
simple changes in management
practices. Two commenters supported
the elimination of the one cfs restriction
agreeing that it was inconsistent with
the intent of the NWP, but one of them
further went on to say that the
prohibition is unnecessary, confusing
and results in many minimal impact
projects having to undergo the
individual permit process, and that the
condition is arbitrary as there is no data
to support the application of this
condition. One commenter stated that
removing the one cfs prohibition would
allow a developer to completely remove
most functions provided by a stream, .
however, this much impact should not
be authorized by the Corps.
The Corps agrees with those
commenters that the one cfs restriction
is unnecessarily prohibitive. There is a
need on occasion to have some
unavoidable elements of relocation and
channelization below the one cfs point .
on a stream for a project covered by
NWP 39. In these cases there would be
no value added to the environment by
processing an individual permit.
Further, the added complication and
costs of making a determination of
another point on a stream in addition to
the five'cfs point, unnecessarily adds a
burden to the Corps and the applicant.
We further believe that there are several
other general conditions that protect
important stream values; such as
General Condition 21 Management of
Waters Flows, General Condition 20
Spawning Areas, General Condition 17
Shellfish beds and General Condition 9
.Water Quality to name a few.
300 Linear Foot Prohibition yvith a
Waiver: This issue is discussed
elsewhere in this preamble.
Compliance with 404(e): Several
commenters indicated that the NWP
was not in compliance with Section
404(e). One commenter said that since
a residential development is not a water
dependent activity, it is presumed that
alternative locations are available for
these activities.
We believe that the minor nature of
these types and categories of activities
will ensure that they are similar in
nature. We further believe that the
conditions and specified thresholds will
ensure that the activities, will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. The thresholds have
been developed and greatly reduce from
10 acres in 1984 down to Vz acre hi
2000, based on years of experience and
were developed to consider most effects
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that could occurs in many areas of the
country. However, Division and District
Engineers will condition such activities
where necessary to ensure that those
activities will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. A case specific off-site
alternatives analysis is not required for
activities with minimal adverse effects
that are authorized hy NWPs, as
provided for the Clean Water Act
section 404(b)(l) Guidelines. However,
on-site avoidance and minimization is
required by General Condition 19.
Other Comments
Many commenters opposed the
preamble discussion regarding the
phasing of subdivisions. The Corps has
defined the concept of single and
complete projects for the purpose of
authorizing activities by nationwide
permits. This term is defined in Corps
regulations at 33 CFR 330.2( i). The
preamble discussion states how the
Corps is implementing the regulations.
The Corps is not proposing to change
the nationwide permit regulations at
this time.
Two commenters requested
conditions requiring a pre-construction
notification for all wetland impacts to
allow the Corps to determine the
appropriateness of using the NWP for
wetlands impacts. One of those
commenters recommended that
permittees be required to verify
compliance with the NWP general
conditions. A pre-construction
notification is a requirement for impacts
to greater than Vio acre of non-tidal
waters of the U.S., excluding non-tidal
wetlands adjacent to tidal waters. This
NWP can not authorize activities in
tidal waters of the U.S. and not in non-
tidal wetlands, adjacent to tidal waters
and not for permanent above grade fills
below the headwaters in the 100 year
flood plain as provided for in general
condition 26. We believe that this will
ensure that the impacts will be no more
than minimal. Furthermore, Corps
divisions and districts will add regional
conditions as appropriate to further
ensure that cumulative effects will be no
more than minimal. The Corps believes
that it would be an unnecessary and
unreasonable burden on an applicant to
demonstrate compliance with all
conditions. The Corps districts will
request verification of compliance for
those conditions that the Corps believes
are applicable to a project but for which
the applicant did not supply sufficient
information.
This NWP is reissued as proposed
except with the modified 300 linear foot
waiver discussed below.
40. Agricultural Activities. The Corps
proposed to modify this NWP by
providing a waiver for the 300 linear
foot limit on relocating existing
serviceable drainage ditches constructed
in non-tidal streams. Several
commenters opposed this NWP, with
some suggesting that it be withdrawn.
Some commenters suggested additional
restrictions to the NWP. These
restrictions included changing the
maximum acreage threshold (e.g. 1% of
the farm tract, .3 acres, Vz acre for the
entire farm holding or all the tracts
under one ownership, V* acres, and Vw
acre); prohibiting conversion of waters
of the US. to agricultural production;
requiring that all impacts must be fully
mitigated; and requiring that the Corps
must review and approve all mitigation.
Additional suggestions included
requiring a pre-construction notification
to include a hydrologist report
documenting the extent of both primary
and secondary impacts; limiting the
linear footage of fill in all streams to 250
feet; prohibiting the discharge of fill into
playas, prairie potholes, and vernal
pools, withdrawing the provision that
states that "discharges of dredged or fill
materials into waters of the US.
associated with the construction of
compensatory mitigation are authorized
by the NWP, but are not calculated in
the acreage loss of waters of the US';
and requiring that the Corps make its
own minimal effects determination
consistent with section 404 of the Clean
Water Act.
Many of these suggestions would
require that the Corps publish proposed
changes to this NWP for public
comments. The Corps can consider and
propose any such appropriate changes
after this NWP is reissued. However, at
this time we believe that the threshold
that we established in 1996 continues to
be appropriate for this NWP. The Corps
will review appropriate activities for
compliance with this NWP including
requiring appropriate mitigation and
ensuring that the authorized activities
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. Further,
we also believe that the PCN
requirements are adequate to allow the
Corps to make such determinations. We
also believe that the PCN requirements
will ensure that any jurisdictional
activities in playas, prairie potholes,
and vernal pools will have no more than
minimal adverse effects on the aquatic
environment, individually and
cumulatively. However, for activities
authorized by paragraph a. of this NWP,
we will rely on NRCS to make those
decisions. We believe that this is
adequate and appropriate considering
NRCS's responsibilities under the
Swampbuster provisions of the Farm
Bill. The threshold limits for all NWPs
are based on the amount of impacts to
waters of the US of the proposed
activity. We do not allow that limitation
to be modified by considering
mitigation to decrease that number.
However, we do consider the net effects
including the project effects, mitigation
and impacts caused by the mitigation in
deciding whether the activity will have
no more than minimal adverse effects
on the aquatic environment,
individually and cumulatively.
Most commenters stated that the
activities authorized under this permit
would pose a serious threat of
contamination to wetlands and nearby
streams from animal waste and should
be withdrawn.
We understand these concerns.
However, these issues are normally
considered and will be addressed as
part of the states' Section 401 water
quality certification or by a Section 402
permit.
Most commenters stated that the
scope of this permit violates the
minimal impact standards as it
unnecessarily exceeds the Vt acre limit
for filling wetlands under the "minimal
effects" provisions of the Farm Bill, and,
as such, should be withdrawn.
The Corps disagrees. Nothing in this
NWP will override the provisions of the
Farm Bill. Where an activity is covered
by the Farm Bill, it must meet the
requirements of the Farm Bill as well as
the requirements of the Corps NWPs.
The NRCS is responsible for
determining compliance with the Farm
Bill, while the Corps is responsible for
determining compliance with the NWP.
One commenter recommended
withdrawing this NWP as the activities
authorized by it are not water
dependent activities, are very dissimilar
in nature and result in major adverse
impacts to the human environment.
Additionally, the impact thresholds are
arbitrary and capricious.
We believe that the minor nature of
these types and categories of activities
will ensure that they are similar in
nature. We further believe that the
conditions and specified thresholds will
ensure that the activities will have no
more than minimal adverse effects on
the aquatic environment, individually
and cumulatively. The thresholds have
been developed based on years of
experience and were developed to
consider most effects that could occurs
in many areas of the country. However,
Division and District engineers will
condition such activities where
necessary to ensure that those activities
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2055
will have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. This
nationwide, permit is reissued with a
modified 300 linear foot waiver as
discussed below.
41. Reshaping Existing Drainage
Ditches. There were,no changes
proposed to this nationwide permit. '
Three commenters said that this NWP
should not be reissued. One commenter
stated that there is no demonstrated
need for this NWP. Three commenters
objected to the reissuance of the NWP
because there are no acreage or linear
foot limits. One of these commenters
suggested adding a 500 linear foot limit
and a 250 linear foot pre-construction
notification threshold. One commenter
said that the sidecasting of drainage
ditch soils may have significant adverse
impacts on the hydrologic regimes of
adjacent wetlands. Another commenter
indicated that impacts due to temporary
sidecasting of excavated material result
in more than minimal adverse effects on
the human environment. ,
This NWP authorizes the reshaping of
existing, serviceable drainage ditches in
a manner that benefits the aquatic
environment. Without this NWP, project
proponents would likely have to obtain
an individual permit to reshape
drainage ditches in a manner that helps
improve water quality in a watershed.
Requiring an individual permit for this
activity would discourage landowners
from conducting this activity. We do not
agree that acreage or linear limits are
necessary because of the nature of the
authorized activity. The pre-
construction notification threshold of
500 linear feet will allow district
engineers to review ditch reshaping
activities that may result in more than
minimal adverse effects to the aquatic
environment. In response to a pre-
construction notification, a district
engineer can require special conditions
to ensure that adverse effects on the .
aquatic environment are minimal or
exercise discretionary authority to
require an individual permit for the
work.
One commenter asserted that this
NWP will encourage the drainage,
degradation, and further loss of waters
and wetlands. One commenter
recommended revocation of this NWP
within "Tulloch" ditches because the
permit provides additional
opportunities for developers to fill
wetlands with little oversight by the
Federal government. This commenter
also suggested modifying NWP 41 to
require planting of native trees and:
shrubs on ditch banks after construction
to reduce the potential for water quality
degradation.
This NWP authorizes only temporary
sidecasting of excavated material into
waters of the United States. Therefore,
activities authorized by this NWP will
not have significant, permanent impacts
on the hydrology of adjacent wetlands
or the human environment. This NWP
does not encourage the loss of waters
and wetlands because it is limited to
activities in existing, serviceable
drainage ditches and reshaping
activities cannot increase the area
drained by the ditches. We do not agree
that it is necessary to require planting of
native trees 'and shrubs after
construction. Drainage ditches require
periodic maintenance to remove
accumulated sediments and any trees
and shrubs planted next to drainage
ditches would have to be removed
during maintenance activities.
One commenter said that if this NWP
is used to authorize activities in waters
that support salmonids, then a regional
condition should be added to the NWP.
The recommended regional condition
would require delineations of pools and
riffles and require that the reshaping
activity be conducted in a manner that
does not reduce the volume and surface
area of pools or other suitable habitat.
Division engineers can add regional
conditions to this NWP to address
concerns for salmonid species.
One commenter objected to the
reissuance of this NWP, stating that it
does not define the term "drainage
ditch" narrowly, it does not require an
applicant to prove that the proposed
ditch reshaping activity will not
increase the area drained by the ditch,
it does not require mitigation when
work is designed to improve water
quality. This commenter said that the
NWP should clarify that pre-existing
waterways are,not drainage ditches,
even if they have been channelized.
This commenter recommended adding
the following text to NWP 41: "This
general permit is limited to reshaping
that would restore more natural stream
characteristics by activities similar to
increasing the area of riparian
vegetation through re-grading or by
recreating stream meanders." Other
suggestions by this commenter include
requiring applicants to obtain NRCS
minimal effects determinations and best
management practices certifications and
requiring mitigation for adverse impacts
to aquatic resources authorized by this
NWP.
This NWP does not define the term -
"drainage ditch". District engineers can
determine, on a case-by-case basis, what
constitutes a "drainage ditch". The
Corps has modified the language of this'
permit slightly to clarify that drainage
ditches constructed in uplands are
generally not waters of the US,
consistent with earlier guidance on this
issue (FR 51:219, p 41217). We do not
believe that it is necessary to require
compensatory mitigation for activities
authorized by this NWP, since the
activities authorized by NWP 41 are
designed to improve water quality. We
do not agree that the recommended text
in the previous paragraph should be
added to NWP 41 because this NWP
authorizes the reshaping of existing
drainage ditches, not stream restoration
activities. Requiring applicants to obtain
minimal effects determinations and best
management practices certifications
from NRCS is unnecessary, since this
NWP is limited to the reshaping of
existing, currently serviceable drainage
ditches that have minimal individual
and cumulative adverse effects on the
aquatic environment. This nationwide
permit is reissued without change.
42. Recreational Facilities In the '
August 9, 2001, Federal Register notice,
we proposed to modify this NWP by
allowing on a case-by-case basis, a
waiver of the prohibition on impacts
exceeding 300 linear feet of stream bed.
In addition, we requested suggestions
regarding criteria, standards, and best
management practices that should be
applied to this NWP for recreational
facilities to ensure that adverse effects
on the aquatic environment are
minimal.
One commenter requested that the
Corps broaden the applicability of this
NWP to include improvements to ski
facilities, because ski area expansion is
too narrow. This commenter also
expressed support for expanding the
scope of this NWP to include the
construction of hotels and restaurants,
because these facilities are important
components of skiing facilities. One
commenter supported the use of this
NWP to authorize the construction of
hiking, biking, and horse trails.
This NWP can be used to authorize
the construction of certain
improvements to ski facilities, provided
those improvements comply with the
terms and conditions of the NWP. We
do not agree that NWP 42 should be
expanded to include the construction of
hotels and restaurants. These facilities
may be authorized by other NWPs, such
as NWP 39, which authorizes discharges
of dredged or fill material into non-tidal
waters of the United States to construct
commercial buildings and attendant
features, or other types of Corps permits.
Two commenters said that this NWP
should be withdrawn. One of these
commenters said that the NWP
authorizes activities that are not similar
in nature that result in more than
minimal adverse impacts to the aquatic
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environment. Six commenters asserted
that this NWP should not authorize the
construction of golf courses or ski areas.
One commenter objected to the
authorization of these facilities under
NWP 42 because they are unlikely to
substantially deviate from natural
landscape contours. Another commenter
said that the authorization of golf
courses and ski areas discourages
developers from looking for alternatives
that have less impact on the aquatic
environment. One commenter objected
to the inclusion of campgrounds in the
list of activities that may be authorized
by this NWP. Four commenters stated
that support facilities, such as buildings,
stables, parking lots, and roads should
not be authorized by this NWP. One
commenter asked if this NWP can be
used to authorize the construction of
recreational ponds.
This NWP authorizes activities that
are similar in nature because it is
limited to discharges of dredged or fill
material into waters of the United States
to construct recreation facilities. The
terms and conditions of the NWP, with
the case-by-case review of those
activities that require pre-construction
notification to district engineers, will
ensure that the activities authorized by
this NWP result in minimal adverse
effects on the aquatic environment. Pre-
construction notification is required for
discharges of dredged or fill material
resulting in the loss of greater than Vio
acre on non-tidal waters of the United
States or the loss of greater than 300
linear feet of perennial and intermittent
streams. The pre-construction
notification process allows district
engineers to review those activities that
may result in more than minimal
adverse effects to the aquatic
environment. In response to a pre-
construction notification, a district
engineer can require special conditions
to ensure that adverse effects on the
aquatic environment are minimal or
exercise discretionary authority to
require an individual permit for the
work.
Golf courses and expanded ski
facilities can be constructed so that they
are integrated into the natural
landscape, without substantial amounts
of grading and filling. This NWP
authorizes only the expansion of
existing ski areas. Paragraph (a) of
General Condition 19 requires
permittees to avoid and minimize
adverse effects to waters of the United
States on-site to the maximum extent
practicable. We do not agree that
campgrounds should be excluded from
this NWP. We believe that the
construction of small support facilities,
such as storage buildings and stables,
are necessary attendant features for the
operation of the recreational facilities
authorized by this NWP. This NWP may
authorize the construction of small
recreational ponds, provided the
construction of those impoundments
does not substantially change natural
landscape contours.
One commenter said that this NWP
should have a Va acre limit, including a
250 linear foot limit for stream impacts.
Another commenter said that the Vz acre
limit was too high. One commenter
stated that the pre-construction
notification threshold should be Va acre
or V» acre, instead of Vio acre. A
commenter said that all activities
authorized by this NWP should require
pre-construction notification, and that
this NWP should not authorize activities
in special aquatic sites. One commenter
recommended replacing the word "loss"
in the text of the NWP with the phrase
"fill or impact (including temporary and
permanent impacts)".
We do not agree that the acreage limit
should be reduced to Va acre, or that
there should be a 250 linear foot limit
for stream impacts. In addition, we
believe that the Vio acre pre-
construction notification threshold
adequately ensures that all activities
that could result in more than minimal
adverse effects on the aquatic
environment are reviewed by district
engineers on a case-by-case basis. We do
not agree that it is necessary to require
pre-construction notification for all
activities authorized by this NWP or to
prohibit use of this NWP in special
aquatic sites. Where there are concerns
that this NWP may authorize activities
with more than minimal adverse effects
on the aquatic environment, division
engineers can regionally condition this
NWP to reduce the acreage limit or
require notification for all activities. It is
not necessary to replace the word "loss"
with the phrase "fill or impact
(including temporary and permanent
impacts)" because the word "loss"
addresses waters of the United States
adversely affected by filling, flooding,
excavation, or drainage.
Several commenters objected to
allowing case-by-case waivers to the 300
linear foot limit for losses of stream
beds. One of these commenters said that
small and ephemeral streams are
important for protecting water quality,
preventing flooding, and providing
habitat for many species. Another
commenter said that the waiver should
not be granted until the district engineer
solicits comments from the other
Federal and state resource and
regulatory agencies.
This waiver is discussed in more
detail below in this Federal Register
notice.
One commenter stated that the
definition of "recreational facilities" is
too broad and the NWP does not
adequately address impacts at the
project site and downstream. One
commenter said that the Corps should
not attempt to establish criteria,
standards, or best management practices
because the Corps has already
determined that the NWP authorizes
only activities, with minimal adverse
environmental effects. A commenter
suggested that the Corps require best
management practices for storm water
management, limits on the clearing of
vegetation for project construction, the
establishment and maintenance of 100
foot wide forested buffers adjacent to
aquatic resources, and limits on the use
of impervious surfaces for trails and
walkways. One commenter requested
that the NWP contain more flexibility to
allow limited use of impervious surfaces
to accomplish complete accessibility for
the physically challenged on multi-use
trails.
We believe that the definition of
"recreational facilities" used in this
NWP, in addition to the terms and
conditions of NWP 42 and the NWP
general conditions, are sufficient to
ensure that the NWP authorizes only
activities with minimal adverse effects
on the aquatic environment. The August
9, 2001, Federal Register notice sought
public input on ways to continue to
ensure that this NWP authorizes
minimal impact recreational facilities.
Compliance with General Condition 9,
Water Quality, may require storm water '
management for a particular recreational
facility. The maintenance and
establishment of vegetated buffers may
be required by district engineers as
compensatory mitigation. Specific limits
on the use of impervious surfaces are
determined by district engineers on a
case-by-case basis in response,to a pre-
coristruction notification. The
construction of multi-use trails that
provide accessibility for physically
challenged individuals can be
authorized by this NWP.
One commenter said that regional
conditions should be adopted to prevent
the cumulative adverse impacts to wood
recruitment in waters inhabited by
salmon. This commenter also suggested
that regional conditions should be
adopted to prohibit the construction of
trails or paths along the tops of banks
unless the facility is constructed so that
there is no loss of riparian vegetation
and any removed vegetation is allowed
to grow back. This commenter also said
that this NWP should not be stacked
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2057
with NWP13 because these two NWPs
exert synergistic significant adverse
impacts on wood recruitment.
Division engineers can impose
regional conditions on this NWP to
address cumulative impacts, including
impacts to salmon habitat. We do not
agree that there should be a;restriction
prohibiting the use of NWF13 with this
NWP for a single and complete project. '
Bank stabilization may be required to
maintain the integrity and safety of a
recreational facility.
The nationwide permit is, reissued
with a modified 300 linear foot waiver
as discussed below.
, 43. Stormwater Management Facilities
In the August 9, 2001, Federal Register
notice, we proposed to modify this NWP
by allowing on a case-by-case basis, a
waiver of the prohibition on impacts
exceeding 300 linear feet ofstream bed.
There were no other changes proposed
to this nationwide permit.
Three commenters stated'that this
NWP should be withdrawn^ One of
these commenters said that'NWP 43 was
unnecessary because the construction of
stormwater management (SWM)
facilities is authorized by other NWPs.
Two commenters stated that new SWM
facilities should not be constructed in
streams, including ephemeral and
intermittent streams. Another
commenter said that SWM facilities are
riot water dependent, SWM facilities
should not be constructed in waters of
the United States, and the activities
authorized by this NWP result in more,
than minimal adverse effects on the
human environment. One commenter
said that this NWP should not authorize
activities in special aquatic sites.
Although other NWPs, such as NWP
39, can authorize the construction of
SWM facilities, certain types of SWM
facilities, such as regional SWM ponds
that are not associated with a particular
development, may not be authorized by
other NWPs. In some cases,: the
construction of SWM facilities in waters
of the United States may be necessary
and may provide more protection to the
aquatic environment. Division engineers
can regionally condition this NWP to
prohibit its use in high value waters. For
those activities that require notification,
district engineers can add case-specific
conditions to ensure that the adverse
effects on the aquatic environment are
minimal or exercise discretionary
authority and require individual permits
for activities with more than minimal
adverse effects. '
One commenter said that the acreage
limit for this NWP should be 3 acres and
another commenter suggested a Vi acre
limit for the construction of new
facilities. One commenter requested a
higher acreage limit for activities in
non-perennial streams, stating that the
pre-construction notification process
would provide the Corps the
opportunity to ensure that project
impacts are not more than minimal.
We believe that the Vz acre limit for
the construction of new SWM facilities
will ensure that this NWP authorizes
activities with minimal adverse effects
on the aquatic environment. We do not
agree that there should be a higher
acreage limit for discharges of dredged
or fill material into intermittent and
ephemeral streams. ,
One commenter stated that
coordination with Federal and state
resource and regulatory agencies should
be conducted before the district
engineer issues a waiver of the 300
linear foot limit. Another .commenter
supported waiving the 300 foot limit,
but recommended that the Corps clarify
that the presence of an ordinary high
water mark is required when
determining that a waterbody is a water
of the United States.
We have adopted a modified
condition allowing district engineers to.
issue case-by-case waivers to the 300
linear foot limit for losses of
intermittent stream beds, for activities
that result in no more than minimal
adverse effects on the aquatic
environment. This modified waiver is
discussed in more detail in another
section of this Federal Register notice.
One commenter recommended that
the NWP authorize normal operations
and maintenance activities so that the
multi-objective aspects, including flood
mitigation, of the project can be met and
the community can realize project
benefits. A commenter recommended
adding a condition that restricts this
NWP to the maintenance of existing
SWM facilities. Another commenter
said that the NWP should include a
condition requiring maintenance of base
flows during periods of low flow, to
protect the downstream environment.
This commenter also said that the NWP
should be conditioned to prohibit the
construction of concrete or stone-lined
channels. One commenter asserted that
the text of NWP 43 should clearly state
that non-jurisdictional activities are not
included in the acreage loss of waters of
the United States.
NWP 43 authorizes the maintenance
of existing, currently serviceable SWM
facilities. Regular maintenance of SWM
facilities is an important mechanism for
ensuring effective stormwater
management, including flood control.
We do not agree that this NWP should
be limited to maintenance activities.
Paragraph (g) of NWP 43 refers to
General Condition 21, Management of
Water Flows, which requires the
maintenance of pre-construction
downstream flows. We do not agree that
it is necessary to condition the NWP to
prohibit the construction of concrete or
stone-lined channels. Division engineers
can regionally condition this NWP to
prohibit these types of activities. During
the review of a pre-construction
notification, district engineers can
exercise discretionary authority if the
proposed work involves the
construction of a concrete or stone-lined
channel and the proposed work will
result in more than minimal adverse
effects on the aquatic environment. We
do not believe it is necessary to
explicitly state in the text of the NWP
that non-jurisdictional activities are not
included in the acreage loss of waters of
the United States, although this is true
for all NWPs generally.
One commenter said that areas within
SWM facilities should not be considered
as compensatory mitigation if regular
maintenance is required. Another
commenter said that this NWP should
not authorize the use of SWM facilities
as compensatory mitigation sites.
Areas of a SWM facility that are not
subject to regular maintenance can be
used as compensatory mitigation sites
(see paragraph (e)(3j).
The nationwide permit is reissued
with a modified 300 linear foot waiver
as discussed below.
44. Mining Activities. There were no
changes proposed to this nationwide
permit. Many commenters said that this
NWP should be withdrawn. Several of
these commenters believe that the
activities authorized by this NWP result
in more than minimal adverse effects on
the aquatic environment, including
water quality, navigation, and aquatic
habitat. Some commenters said that
these activities should be reviewed
under the standard permit process.
This NWP authorizes mining
activities that have no more than
minimal individual and cumulative
adverse effects on the aquatic
environment. The terms and conditions
of this NWP, including the NWP general
conditions, will ensure that these
mining activities will have no more than
minimal adverse environmental effects.
For example, mining activities in
navigable waters must comply with
General Condition 1, Navigation. All
activities authorized by this NWP
require notification to the district
engineer prior to commencement of
mining activities. The pre-construction
notification process allows district
engineers to review mining activities on
a case-by-case basis, to ensure that the
proposed work has no more than
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minimal adverse effects on the aquatic
environment. In response to a pre-
construction notification, the district
engineer can add special conditions to
the NWP authorization to ensure that
the adverse effects on the aquatic
environment are no more than minimal
or exercise discretionary authority to
require an individual permit for the
work.
One commenter stated that this NWP
does not satisfy the "similar in nature"
requirement for general permits,
including NWPs. Another commenter
asserted that the activities authorized by
this NWP are not water dependent and
that alternatives are available.
This NWP complies with the "similar
in nature" requirement of general
permits because it is limited to aggregate
and hard rock/mineral mining activities.
The water dependency test in the
Section 404(b)(l) guidelines does not
require each activity in waters of the
United States to be water dependent to
fulfill its basic project purpose. General
Condition 19, Mitigation, requires
permittees to avoid and minimize
adverse effects to waters of the United
States to the maximum extent
practicable on the project site. The
NWPs do not require an analysis of off-
site alternatives. As long as the mining
activity results in no more than minimal
adverse effects to the aquatic
environment and complies with all
terms and conditions, the activity can be
authorized by NWP.
One commenter said that this NWP
should be withdrawn because it is of
limited use to the aggregate mining
industry. A commenter objected to this
NWP, stating that the Corps has not
demonstrated why the NWP should be
limited to activities in isolated waters
and wetlands adjacent to headwaters.
One commenter asserted that the Vz acre
limit for this NWP is too restrictive
because of the extensive pre-
construction notification and mitigation
requirements. This commenter also said
that the Corps cannot condition this
NWP to prohibit beneficiation and
mineral processing within 200 feet of an
open'waterbody. Another commenter
recommended increasing the acreage
limit to three acres for impacts to non-
wetland waters and allowing district
engineers to waive the 1 cubic foot per
second limit on a case-by-case basis.
The terms and conditions of this
NWP, including the Vz acre limit and
the scope of applicable waters, are
intended to ensure that activities
authorized by this NWP result in no
more than minimal adverse effects to
the aquatic environment, individually
and cumulatively. We have the
authority to condition this NWP to
prohibit beneficiation and mineral
processing within 200 feet of an open
waterbody, if such a restriction is
necessary to ensure that the NWP
authorizes only activities with no more
than minimal adverse effects on the
aquatic environment. We do not agree
that a waiver for the 1 cubic foot per
second limit for aggregate mining in
headwater streams would be
appropriate. That restriction is
necessary to ensure that the NWP does
not authorize aggregate mining activities
with more than minimal adverse effects
to headwater streams. Aggregate and
hard rock/mineral mining activities that
do not qualify for authorization under
this NWP can be authorized by
individual permits.
Two commenters stated that this NWP
must be reevaluated in light of the Solid
Waste Agency of Northern Cook County
v. United States Army Corps of
Engineers et al. (U.S. Supreme Court No.
99-1178) (SWANCC). One commenter
said that many mining operations do not
involve discharges of dredged or fill
material into waters of the United States
and the Corps should reassess areas
where it has exceeded its statutory
authority. One commenter
recommended modifying this NWP to
clarify that non-jurisdictional
excavation activities channelward of the
ordinary high water mark and activities
outside of fie ordinary high water mark
and adjacent wetlands do not require a
Section 404 permit.
The Solid Waste Agency of Northern
Cook County v. United States Army
Corps of Engineers et al. decision
related to the scope of CWA jurisdiction
over nonnavigable isolated intrastate
waters. Aggregate and hard rock/mineral
mining activities may occur in
jurisdictional waters and thus could be
authorized by this NWP. Activities that
occur in non-jurisdictional waters, as
determined by applicable regulations
and case law (including SWANCC) do
not require a section 404 permit. The
nationwide permit is reissued without
change.
Project Specific Wavier of 300-Linear
Feet Prohibition in NWPs 39, 40, 42,
and 43
In the August 9, 2001, Federal
Register notice, the Corps proposed to
allow a waiver, on a case-by-case basis,
of the prohibitions in NWPs 39, 40, 42,
and 43 against discharges resulting in
the loss of greater than 300 linear feet
of stream bed. The waiver could be
issued only after the district engineer
reviewed a pre-construction notification
for the proposed work and determined
that the activity would result in no more
than minimal adverse effects on the
aquatic environment.
Several commenters stated that the
absolute 300 linear foot limit on the
amount of stream that can be filled
under these NWPs should be retained.
They were concerned that the proposed
waiver would lead to severe stream
destruction from the construction of
developments, agricultural activities,
and other activities and said that the
existing, strong linear limits on stream
bed impacts should be retained. Some of
these commenters added that the 300
linear foot limit provides predictability
and certainty to the regulated
community and state permitting
agencies as well as reducing workload
for Corps staff. A few commenters stated
that the proposed waiver would lead to
many variations in the way permit
decisions are made between Corps
districts and even between Corps project
managers within the same district who
use their own definitions of minimal
impacts. One of these commenters
indicated that NWP verification requests
should be simple to review and
approve, with clear thresholds and
consistency in the review process.
Another commenter stated that the
waiver would require the Corps to rely
on the expertise of applicants to provide
information and allow developers to .
excavate or fill as much as one mile of
a stream under a general permit when.
the intent of NWP program is to
authorize only those activities with
minimal adverse impacts. Numerous
commenters supported the proposed
waiver. Some of these commenters said
that the waiver would allow greater
flexibility and efficiency in permit
processing and would eliminate the
need for individual permits to fill more
than 300 linear feet of stream bed where
the impacts are minimal.
The waiver adds flexibility to the
Corps permit process, by allowing
district engineers to efficiently authorize
activities that have minimal adverse
effects on the aquatic environment.
Requiring individual permits for
minimal impact activities that would
otherwise qualify for authorization
under NWPs 39, 40, 42, and 43 because
they involve the loss of greater than 300
linear feet of stream bed would increase
the Corps workload, with no added
environmental benefits. Since aquatic
resource functions and values vary
across the United States, we recognize
that there will be differences in the
implementation of the waiver. However,
we do not agree that the waiver makes
the protection provided by the NWP
process less consistent. District
engineers will use their knowledge of
the local aquatic environment, as well
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2059
as the information submitted in pre-
construction notifications, to make their
case-by-case determinations whether the
waiver is applicable for a particular
activity.
Some commenters emphasized the
functions and values of the small
headwater streams in the Overall health
of the aquatic environment and stated
that filling these streams wrill result in
significant impacts. These commenters
stated that the cumulative loss of
intermittent streams and die
downstream impacts of piping these
streams can cause significant
irreversible environmental and
ecological losses. Another commenter
added that small streams usually exist
within extensive riparian corridors and
are incorrectly called drainage ditches
to devalue their worth. This commenter
is concerned that the waiver would
result in the degradation of headwater
streams, allow channelization of more
streams, and result in more losses of
wetlands. One commente^stated that
allowing filling of streams :could impact
the States' efforts to restore wetlands,
streams, and watershed functions.
We recognize that headwater streams
often provide important functions and
values, but there are situations where
the loss of these streams will result only
in minimal adverse effects^on the
aquatic environment. We believe that
such situations would not likely occur
in intermittent streams, but rather in
perennial streams. We have thus
decided not to adopt the waiver of the
300 linear foot limit for perennial
streams. The absolute prohibition on the
use of these permits where more than
300 linear feet are impacte.d remains in
place for perennial streams. We have
decided to adopt the waiver process for
intermittent streams, thereby allowing
district engineers to waive, on a case-by-
case basis, the 300 linear foot limit for
the loss of intermittent stream beds
under NWPs 39, 40, 42, and 43. It is
important to note that, in order for the
waiver to occur, the district engineer
must make a written determination that
the proposed work will result in no
more than minimal adverse effects on
the aquatic environment. If the district
engineer does not provide written
confirmation of die waiver, then the 300
linear foot limit for the loss of
intermittent stream beds remains in
place and the project proponent must
obtain another type of Corps permit for
the proposed activity.
Further, if the proposed work will
result in more than minimal adverse
effects on the aquatic environment, the
district engineer will determine that the
waiver is not applicable and require the
project proponent to obtain an
individual permit. As an added level of
protection to valuable headwater
streams, division engineers can
regionally condition the NWPs to
further restrict or prohibit their use in
high value waters. The waiver will not
impact States' efforts to restore waters
and watersheds, since the waiver can
only be issued after case-by-case review.
Some commenters asked how the
Corps would determine whether an
activity resulted in minimal
environmental impacts to justify
waiving the 300 linear foot limit. One
commenter asked if the cumulative
effects of the waiver would be evaluated
each time die waiver was used. A few
commenters said that the Corps cannot
justify eliminating and waiving the 300
linear foot limit until the Corps can
demonstrate that there are no
cumulative adverse impacts resulting
from activities authorized by NWPs.
District engineers will use their
knowledge of local aquatic
environments and case-specific
circumstances to determine when
proposed activities will result in
minimal adverse effects on the aquatic
environment. District engineers monitor
the use of NWPs on a watershed or
regional basis to determine whether the
cumulative adverse effects of these
activities are more dian minimal.
One commenter said that die 300
linear foot limit for die NWPs should be
reduced to 200 linear feet. This.
commenter also recommended diat
mitigation should be required for all
projects that result in a net loss of
aquatic habitat, acreage, or function.
We do not agree that the 300 linear
foot limit should be reduced to 200
linear feet. The mitigation requirements
for the NWPs are addressed in General
Condition 19, Mitigation. For activities
authorized by NWPs, project proponents
are required to avoid and minimize
adverse effects to waters of the United
States on-site to the maximum extent
practicable. District engineers will
determine, on a case-by-case basis
whether compensatory mitigation is
required to offset losses of waters of the
United States and ensure that the
adverse effects on the aquatic
environment are minimal.
Several commenters discussed die '
example provided in die August 9,
2001, Federal Register notice (page
42079) which described a 6-inch wide
by 1-inch deep ephemeral stream
running for several thousand feet. One
commenter inferred that the Corps was
devaluing all such streams and that die
loss of these streams would result in
more than minimal impacts. This
commenter said that relatively intact
ephemeral streams perform a diversity
range of hydrologic, biogeochemical,
and habitat support functions that
directly affect down-gradient streams.
Another commenter stated that these
small headwater tributaries provide
important habitat for aquatic life,
including fish spawning areas. This
commenter also said that these streams
are important habitat for amphibians
and reptiles during those short periods
when water is flowing or ponded, and
that die continued.loss of this habitat is
cumulatively damaging. Another
commenter stated that headwater
streams should be protected, and added
tiiat continued permitting of these
activities under die NWP program must
include careful individual site review
by .qualified aquatic biologists. Two
commenters said that minimal impact
determinations for die waiver of the 300
linear foot limit should require on-site
inspections.
The example provided in die August
9, 2001, Federal Register notice was
intended as an illustrative example to
.show that some impacts exceeding 300
linear feet may still be minimal. It was
not intended to suggest diat all
ephemeral streams are of low value, or
diat all impacts to ephemeral streams
are by definition minimal. As a practical
matter, ephemeral streams are not
covered by the 300 linear feet limitation,
so a formal waiver is not needed for
ephemeral streams. However, even a
project that impacts only an ephemeral
stream could be required to obtain an
individual permit if die District
Engineer determined that individual or
cumulative adverse effects Were more
than minimal. Under the waiver
process, the district engineer would
have to make a written determination
that the loss of an intermittent stream
segment exceeding 300 linear feet
would result in minimal adverse effects
on die aquatic environment. We do not
agree that it is necessary to require on-
site determinations in all cases by
district engineers prior to issuing a
waiver. District engineers can utilize
dieir experience, information provided
in pre-construction notifications, and
other sources of information before
determining die applicability of die
waiver.
Three commenters suggested allowing
die resource agencies to review all
waiver applications. One of these
commenters said diat die public should
be allowed to comment on these
minimal effect determinations. Several
commenters were opposed to the
requirement for a written determination
of a waiver widiout a time clock.
We do not agree tiiat it is necessary
to conduct agency coordination or a
public comment process for requests to
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waive the 300 linear foot limit for
intermittent streams for NWPs 39,40,
42, and 43. District engineers have the
expertise to determine on a case-by-case
basis whether these activities will result
in more than minimal adverse effects on
the aquatic environment. We do not
believe it is necessary to adopt a
separate time clock for waiver requests.
If a project proponent submits a
complete pro-construction notification
.for a NWP 39,40,42, and 43 activity,
and the proposed work involves filling
or excavating more than 300 linear feet
of intermittent stream bed, the project
proponent cannot assume that the
proposed work is authorized by these
NWPs unless a written waiver is
obtained from the district engineer.
District engineers should respond to
requests for the 300 linear foot waivers
for intermittent streams within the 45
day pre-construction notification
period.
NWPs 39,40,42 and 43 are issued
with a waiver for the 300 linear foot
limit for intermittent stream beds. These
NWPs cannot be used to authorize the
loss of more than 300 linear feet of a
perennial stream bed. As a clarification,
there are no absolute quantitative
limitations on linear impacts to
ephemeral streams, as long as the
adverse effects on die aquatic
environment are no more than minimal.
Nationwide Permits General Conditions
1. Navigation. There were no changes
proposed to this General Condition.
There were no comments on this
General condition. The General
Condition is adopted without change.
2. Proper Maintenance. There were no
changes proposed to this General
Condition. There were no comments on
this General Condition. The General
Condition is adopted without change.
3. Soil Erosion and Sediment
Controls. There were no changes
proposed to this General Condition.
There were no comments on this
General Condition. However, there was
a comment on NWP 7 that the Corps
determined was related to this
condition. The change is discussed in
the Preamble discussion of NWP 7. We
agreed with the comment.
The General Condition is adopted
with a change to encourage permittees
to perform work in waters during low-
flow or no-flow conditions.
4. Aquatic Life Movements. In the
August 9, 2001, Federal Register notice,
the Corps proposed to modify this
General Condition to clarify the intent
of the condition was to protect aquatic
life cycle movements.
One commenter stated that the
current General Condition 4 was
difficult to understand. Numerous
commenters supported the clarification
of this General Condition. Several
commenters suggested that the
statement "substantially disrupt life
cycle movements" be replaced with
"prevent life cycle movements",
because substantial gives the impression
that the impacts may be more than
minimal. One commenter suggested that
General Condition 4 should be revised
to read, "No activity conducted under a
NWP may substantially disrupt the
necessary life-cycle movements of those
species of aquatic life indigenous to the
water body, including those species that
normally migrate through the area,
culverts placed in streams must be
installed to maintain low flow
conditions". One commenter
recommended that General Condition 4
should restrict any activity that could
impact or impair aquatic life stages or
movement of organisms dependent
upon waters or wetlands. One
commenter stated that there is no need
to change the wording of General
Condition 4, if the Corps would
consider that all movements by an
organism are related to its life cycle.
One commenter requested clarification
of this condition concerning the
application of the condition to other
organisms, which do not have all of
their life cycles within the aquatic
environment (amphibians).
We have retained the word
, "substantially" in the text of this
. General Condition, which is related to
the movement of the species not to the
impact on the species. Removal of this
word would change the standard to any
movement no matter how minimal or
inconsequential the movement would
be..We believe that most work in waters.
of the United States will result in some
disruption in the movement of some
aquatic organisms through those waters.
District Engineers will determine, for
those activities that require notification,
if the disruption of aquatic life-cycle
movements is more than minimal and
either add conditions to the NWP to
ensure that the adverse effects are no
more than minimal or exercise
discretionary authority and require an
individual permit.
A few commenters stated that culverts
must be installed in streams to maintain
low and high flow conditions to allow
fish passage. One commenter added that
the hydraulic analysis to determine that
range of high flows through the culvert
shall be based upon anticipated flows in
the basin at build-out.
The Corps believes that it is important
to maintain low flow conditions, but .
that it is not reasonable or necessary to
require hydraulic analysis for every
culvert that would be authorized by
NWPs. Corps district can enforce this
condition where necessary.
One commenter stated that activities
for which the primary purpose is to
impound water should be evaluated as
individual permits and not authorized
under NWPs since ponds significantly
disrupt the necessary life cycle of
aquatic life.
We believe there are impoundment
projects which would substantially
disrupt the movement of specific
individuals of aquatic life, but which
would not adversely affect the
populations of the species nor have
more than minimal impacts on the
aquatic environment. Such activities
would need to be processed as
individual permits.
This General Condition is adopted as
proposed.
5. Equipment. There were no changes
proposed to this General Condition.
There were no comments on this
General Condition. The General
Condition is adopted without change.
6. Regional and Case-by-Case
Conditions. There were no changes
proposed to this General Condition. One
commenter stated that the public was
not given adequate time to evaluate the
regional conditions as they were not
published in the Federal Register.
Furthermore, the comment period for
the regional conditions did not coincide
with the comment period of the
proposal to modify and reauthorize the
NWP program. Therefore, the public
was not provided an opportunity to
evaluate and provide comment on the
comprehensive and cumulative impacts
of the NWPs.
Regional conditions are proposed and
evaluated by the individual Corps
division offices by a public notice and
comment process. Case-by-case
conditions are developed by Corps
District or Division offices, to ensure
that specific activities meet the NWP
conditions and have no more than
minimal adverse effect on the aquatic
environment, individually and
cumulatively. Division offices need to
know what file final NWPs are before
they can develop final regional
conditions. Therefore, 'the review of any
proposed regional conditions can not
occur simultaneously with the review of
the NWPs. Finally, this condition is to
reinforce that those regional and case-
by-case conditions are legally binding
conditions of the NWPs.
The General Condition is adopted
without change.
7. Wild and Scenic Rivers. There were
no changes proposed to this General
condition. There were no comments on
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2061
this General condition. The General
Condition is adopted without change.
8. Tribal Rights. There were no
changes proposed to this General
condition. One commenter stated that
tribal rights have been impaired due to '
cumulative impacts by the NWP
program and suggested that a regional
condition should be implemented to'
prohibit use of NWPs in south Florida
until a regional EIS has been completed.
The comments have been forwarded to .
the appropriate Corps District. The
General Condition is adopted without
change.
9. Water Quality. The Corps proposed
to clarify this condition as it relates to
detailed studies and documentation
requirements. We also proposed to add
language that clarifies that permittees
may meet the requirement of this
condition by complying with state or
local water quality practices.
Numerous commenters agreed with
the proposed change to General
Condition 9. Many commenters stated
the current more burdensome
requirements, detailed studies, and
design plans, only serve to; expend the
tune and resources of the applicant.
Several commenters indicated concern
that the Corps may infringe upon the
water quality authority of the State. One
commenter recommended that General
Condition 9 be revised to mandate
compliance with the most stringent
applicable standards whether they are
federal, state, or local. One commenter
stated that the Corps .should not defer
authority by making state or local
permits a contingency of ah NWP.
Several commenters disagree with the
proposed changes to this condition
stating that many local jurisdictions lack
the skilled personnel to develop and/or
enforce adequate water quality
standards and without evaluation of the
state or local practices, the Corps cannot
insure that impacts to the aquatic
environment are minimal. One
commenter stated that the proposed
clarification should be withdrawn
because the General Condition is less
stringent than the existing condition
and will result in poorer water quality.
One commenter suggested that this
condition should be expanded to .
specifically exclude the use of any NWP
for a project adjacent to or in any water
of the U.S. designated on a.State 303(d)
list. - . . ,
We believe 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 water
quality 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.
The Corps proposed a condition in 1998
to restrict NWPs in State 303(d)
(impaired) waters. We decided not to
adopt that condition as explained in the
March 9, 2000 preamble. We could not
now adopt such a condition without
proposing it for public review and
comment.
The General Condition is adopted as
proposed.
10. Coastal Zone Management. There
were no changes proposed to this
General Condition. There were no
comments on this General Condition.
The General Condition is adopted
without change.
11. Endangered Species. There were
no changes proposed to this General
Condition. One commenter stated that a
sentence has been omitted from this
condition in the proposed preamble
with no notification of the change. The
omitted sentence, the last line of ll(a),
states that, "As a result of formal or
informal consultation with the FWS or
NMFS, the District Engineer may add
species-specific regional endangered
species conditions to the NWPs". The
commenter stated that omitting this
statement shifts the burden of
identifying and protecting potentially
impacted endangered and threatened
species and their critical habitat onto
the permit applicant. The commenter
requested that this change be dropped
because the Corps has not met the legal
requirements to adopt it.
The commenter is correct. This
sentence is included in the currently in
force June 6, 2000, version of this
General Condition, but not in the
August 9, 2001, proposed version. The
Corps did not intend to propose any
changes to this General Condition. The
omission was in error. The omitted
sentence has been reinserted in this
condition.
One commenter stated that this
condition may lead to compliance with
the ESA however, is not likely to fully
minimize or substantially reduce the
significance of harm to listed species
and their critical habitat. One
commenter suggested this condition be
re-titled to read "Threatened and
Endangered Species", the condition be
simplified and clarified, and the U.S.
Fish & Wildlife Service and the National
Marine Fisheries Service web sites be
placed in this condition.
We believe this condition as stated
provides not only the legal protection
but also the actual protection required
under the ESA. The "Endangered
Species Act" covers both threatened and
endangered species as does the General
Condition title "Endangered Species".
We do not believe that it is necessary to
include other agency websites here.
These are readily accessible on the
internet.
The General Condition is adopted
without change (but with the
inadvertently omitted sentence
restored).
12. Historic Properties. There were no
changes proposed to this General
Condition. Two commenters
recommended that the Corps coordinate
with the SHPOs in accordance with the
National Historic Preservation Act
(NHPA) and requested that a FONSI
should not be issued until consultation
under NHPA has been completed.
Division and districts will coordinate
with SHPOs and Tribal Historic
Preservation Officers where appropriate
and add any regional conditions or case
specific conditions that may be
necessary to satisfy the NHPA in
specified areas. There is no requirement
to coordinate with SHPO in developing
a FONSI and we do not believe that
such coordination is necessary.
The General Condition is adopted
without change.
13. Notification. In the August 9, 2001
issue of the Federal Register, we
proposed 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 an NWP, to allow a waiver
of the 300 linear-foot prohibition
[following written verification from the
Corps], and 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 U.S. These latter
two changes were to make notification
requirements consistent with changes
discussed elsewhere in this notice.
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Several commenters supported the
proposed clarification for the submittal
of drawings. Few commenters disagreed
with the clarification but some said that
drawings or sketches should be a
mandatory requirement for notification
and requiring this information would
reduce Corps workload while insuring
that impacts to the aquatic environment
are minimal. One commenter
recommended that photographs be
required with notification.
It was not the intent of this proposed
clarification to modify the required
contents of notification or to make
submittal of non required information
mandatory but rather to encourage
applicants to provide us as complete a
submittal as possible to expedite our
review of their application. We did state
that the Corps has the discretion on a
case-by-case basis to require additional
information as necessary to determine if
the activity complies with the terms and
conditions of the NWP.
Several commenters agreed with the
proposal to delete the notification
requirements for above grade fill in
waters of the United States. One
commenter recommended expanding
notification requirements to include
above grade fills in NWPs 3,12,14. 21,
31, 39, 40,42, and 44 and stated that the
applicant should submit documentation
as to why there is no practicable
alternative to the proposed discharge
and provide a copy to EPA, F&WS, and
NMFS. One commenter stated that a
statement of avoidance and
minimization should be submitted with
NWPs 12,14. 40,41, and 42.
The Corps believes it is not necessary
for permittees to routinely notify the
Corps for above grade fills in waters of
the US as long as they are complying
with general condition 26. Comments
on this issue are further discussed under
general condition 26.
One commenter recommended that
the review period for NWPs 3,12, and
33 be amended to 30 days instead of 45
to expedite energy-related projects. One
commenter supported the 45-day time
frame for review of notification but
believed 60 days is more realistic. A
couple of commenters requested this
condition be amended to require the
Corps to issue or deny the NWP within
45 days of receipt of a complete
notification and the 45-day timeframe
should also apply to the 300-foot stream
waiver pro vision.
The Corps normally does not take the
full 45 day time period to verify NWPs.
For energy related activities Corps
districts will expedite the decision as to
whether to verify the activity under an
NWP. It is not necessary to make that a
permit condition. Corps districts are '
required to make a decision to verify or
deny the NWP within 45 days, or the
applicant may proceed. However, this
does not apply to waiving the 300 linear
foot prohibition for intermittent streams
or the verification of NWP 21 or the 500
linear foot limit for NWP 13. In these
cases, the applicant may not proceed
before receiving written verification.
This is to ensure that the district has
adequate time to make a satisfactory
evaluation before deciding whether to
authorize use of an NWP.
One commenter stated that the Corps
has amended the language in condition
13(a) without providing notification in
the preamble. The March 9, 2000
Federal Register stated "where required
by the terms of the NWP, the
prospective permittee must notify the
District Engineer with a pre-
construction notification (PCN) as early
as possible". The August 9, 2001 notice
stated "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". The commenter indicated
this change will increase the incentive
of permit applicants to withhold
relevant information necessary for full
evaluation of a PCN and the change
must be withdrawn.
The Corps did not intend to propose
this change. It was an error. The general
condition will be issued with the
existing language adopted on March 9,
2000.
One commenter disagreed with the
agency coordination threshold of % acre
and stated that all PCNs should require
a 30-day agency coordination to ensure
minimal impacts. One commenter stated
that simply noting in the record that an
agency concern has been considered,
without a response to the agency, is not
agency coordination and is not full
consideration of their comments.
Furthermore, the commenter stated that
any recommendations that are not
adopted, after coordinating a decision
with the agency, should be fully
documented and become part of the
administrative record.
We disagree. The requirement for
agency coordination is to fully consider
agency comment with no specification
to document or respond to the
commenting agency, though normally
the Corps does respond to commenting
agencies when significant concerns are
raised. Further, it has been determined
in coordination with the other Federal
agencies that Vz acre is a satisfactory
threshold for required coordination.
Coordination does occur with other
Federal agencies on a case specific as
needed basis.
One commenter recommended that
the Corps consider removing the
mandatory delineation of special
aquatic sites, including wetlands, or at
the least adding a reasonable threshold
for such documentation to all PCNs.
One commenter recommended the
addition of NWPs 3,11,13,19, 27, 31,
and 36 to'the requirement for submittal
of delineation of special aquatic sites
with the PCN.
We do not believe that we should
either increase or decrease the specific
activities for which a mandatory
delineation is required. We do not
believe it is necessary for many NWPs,
for example; requiring a delineation for
NWPs 3 and 31 would be unnecessary
for maintenance activities authorized by
these. NWPs. Also districts may require
a delineation of wetlands (or any other
appropriate documentation) in cases
where they determine it is necessary to
evaluate the impacts of the project or to
determine the mitigation requirements.
One commenter disagreed with the
requirement to submit information
regarding the original design capacities
and configurations where maintenance
excavation is proposed under NWP 7,
(b)(5) because if the maintenance
excavation is non-jurisdictional, the
applicant should not be required to
submit such information, and the Corps
should not review non-regulated
activities. One commenter
recommended that the Corps clarify
(b)(16) to state that activities that consist
of non-jurisdictional excavation or
temporary stockpiling during the
excavation process are not included in
the compensatory mitigation
requirements or in the calculation of
acreage of waters lost.
Maintenance excavation activities in
section 404-only waters do not require
a CWA section 404 permit unless they
result in more than incidental fallback.
If there are regulated excavation
activities that can be authorized under
NWP 7, then the applicant will need to
provide information necessary for the
Corps to evaluate the PCN for
compliance with the terms and
conditions of the NWP. Non
jurisdictional activities should not be
considered in mitigation requirements.
However, related impacts of the project
will be considered when determining if
the adverse effects are more than
minimal. Also the acreage impacts for
directly related excavation activities
will be included in calculating the
acreage limits for the NWP. The concern
addressed by the acreage limit is with
the direct effects of the activity.
Temporary stockpiling is a regulated
activity and is considered for possible
mitigation requirements where the
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2063
impacts are measurable. However, the
acreage is not included in calculating
the acreage limit because the impacts
are temporary. '.
One commenter recommended that
the Corps revise the notification
requirement in (b)(10) for NWP 31 to
require the applicant to obtain the Corps
approval prior to construction for any
disposal site within waters of the United
States. The commenter stated that the
proposed condition requires location of
disposal site at time of notification,
which is not always an option for long-
term maintenance activities.
NWP 31 does not authorize the
disposal of the excavated material into
waters of the US unless the disposal site
is submitted with the PCN, The District
Engineer can review a disposal site to
assure that it is not in waters of the US
or, if it is in a water of the US, to
determine if the adverse effects are more
than minimal and, if so, disapprove the
disposal site. ,
One commenter recommended that
the Corps accept the use of established
state agency coordination documents
concerning annual work plans as
sufficient notification for maintenance
activities.
Once a maintenance baseline has been
.approved, the applicant must then
notify the Corps of maintenance
activities, either case-specific or
generically. The state agency documents
you describe may be sufficient, but such
a decision would need to be made on a
case-by-case basis by the appropriate
Corps District Engineer.
One commenter recommended that
NWPs 3, and 31 also be added to (b)(5)
and a delineation of affected special
aquatic sites including wetlands, along
with the location of dredge material
disposal site, should be provided.
NWP 3 allows for the maintenance of
currently serviceable structures and
.fills, consequently wetlands and other
special aquatic site should not be
affected by the maintenance activity.
However, while this is also true for most
NWP 31 activities, NWP 31 also allows
the maintenance of unconfined
channels that have wetlands in them
from time to time. Therefore, (b)(10)
does require delineation of special
aquatic sites, including wetlands to be
included in PCNs for NWP 31. The
location of disposal sites for NWP 31
PCNs is required by (b)(10). NWP 3 does
not provide for authorization of disposal
sites in waters of the US,.except for part
(ii), which requires that the District
Engineer specifically approve any such
disposal site under a separate
authorization.
One commenter disagreed with the
restoration plan requirement in (b)(ll)
for NWP 33 because excavation is not
regulated. The commenter added that
the regulated discharge is temporary
and the only required restoration should
be the removal of the temporary deposit.
The restoration plan must address
temporary activities including both
filled and excavated areas. If a Corps
permit is required for some of the
temporary work and the permittee seeks
authorization by NWP 33, then the
affected waters of the U.S. must be
restored by the permittee and a
restoration plan submitted to the Corps.
One commenter recommended that
the requirement for the submittal of a
maintenance plan under (b)(15) be
deleted. Excavation in Sec. 404 waters.
does not required authorization from the
Corps. The maintenance plan is to
ensure that cyclical maintenance does
not cause more than a minimal effect
and that cyclical activities only be
mitigated for once.
The Corps believes that it is necessary
to maintain stormwater management
facilities. The Corps also believes that to
ensure that the adverse effects are
minimal it is necessary that an adequate
mitigation plan be developed by the
permittee. This requirement provides
the necessary assurances that such a
necessary maintenance plan is
developed.
In the preamble to the August 9, 2001,
Federal Register notice, the Corps
proposed for NWPs 21, 39, 40, 42, and
43, to add language to the notification
General Condition 13 from the permit.
For all projects using NWP 21 and for
projects using NWPs 39, 40, 42, and 43
that propose impacting intermittent
stream beds in excess of 300 linear feet,
the Corps must be notified and explicit
authorization in writing obtained from
the Corps before the project can
proceed. There were no comments on
this proposal. The Corps has added
language to General Condition 13 as
proposed. This added language does not
change any requirement of the NWPs.
The General Condition is adopted as
proposed.
14. Compliance Certification. There
were no changes proposed to this
General Condition. There were no
comments on this General Condition.
The General Condition is adopted
without change .
15. Use of Multiple Nationwide
Permits. There were no changes
proposed to this General Condition. One
commenter stated that the use of more
than one NWP for a single and complete.
project is prohibited. One commenter
stated that the Corps should include a
General NWP condition that precludes
the use of multiple NWPs and NWPs in
combination with individual permits for
multiple Section 10 or 404 activities
located in close proximity to one
another. The commenter asserted the
Corps is in noncompliance with Section
404[e) and NEPA when stacking of
NWPs is allowed. One commenter
suggested that the District Engineer be
authorized to waive the highest
specified acreage limit when stacking
NWPs, not to exceed the overall
minimal impact threshold in order to
avoid an individual permit.
We will continue to allow use of
multiple NWPs to authorize a single and
complete project provided it will result
in no more than minimal adverse effects
on the aquatic environment,
, individually and cumulatively. We do
not agree that allowing use of multiple
NWPs is in violation of Section 404(e)
or NEPA. We continue to believe that in
order to allow the use of multiple NWPs
for a single and complete project, it is
necessary to not exceed the highest
acreage limit of any of the NWPs.
The General Condition is adopted
without change.
16. Water Supply Intakes. There were
no changes proposed to this General
Condition. There were no comments on'
this General Condition. The General
Condition is adopted without change
17. Shellfish Beds. There were no
changes proposed to this General
Condition. There were no comments on
this General Condition. The General
Condition is adopted without change.
18. Suitable Material. There were no
changes proposed to this General
Condition. There were no comments on
this General Condition. The General
Condition is adopted without change.
19. Mitigation, The following
discussion does not alter or supersede
requirements under the section
404(b)(l) Guidelines or guidance
applicable to individual permits, such
as the 1990 EPA/Department of the
Army MOA concerning the
determination of mitigation under the
Guidelines. The Corps proposed to
revise this General Condition to allow a
case-by-case waiver of the requirement
for 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
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streams and other non-wetland aquatic
resources.
Proposed Waiver of One-for-One
Mitigation Requirement
Numerous commenters opposed the
case-by-case waiver of the requirement
for one-for-one mitigation of adverse
impacts to wetlands. Instead they
requested that the Corps maintain one-
for-one and/or strengthen existing
mitigation requirements. Several
commenters stated that wetland loss
continues to occur despite the
regulatory programs efforts and "no net
loss" policy, and that the proposed
waiver would allow extreme flexibility
in implementing mitigation policy
which would be counter to current
Federal mitigation guidance and "no net
loss". Rather the proposal would further
invite net losses of wetlands. As such,
many commenters recommended that
the Corps require compensation for
impacts to wetlands at higher than a
one-for-one ratio, or at a minimum,
clearly outline the Corps discretion to
require greater than one-for-one ratios.
The Corps is committed to the no
overall net loss of wetlands goal, and
will continue to require more than one
for one mitigation for wetland loss in its
nationwide permit program. The
underlying policy of the Corps, since
1990, has been to offset impacts to
wetlands at a one for one ratio on a
functional basis. Based on the
possibility of failure of mitigation, as
pointed out in the recent NRC/NAS
Report on the Corps Regulatory
Program, the Corps has for many years
required more than one for one
mitigation on an acreage basis. The
proposed change to condition 19 is
intended to result in a more ecologically
and watershed based approach to
mitigation. Wetlands remain one of the
most critical ecological assets in most
watersheds in the Country, but other
vital aquatic ecosystems, such as free-
flowing streams, are subject to impacts
that must also be offset. The changes to
Condition 19 will allow the Corps
biologists to make the right decision on
mitigation for each project within the
watershed context. However, to
reinforce its commitment to the no net
loss policy, the Corps will also direct its
District Offices to ensure that their
verified NWPs achieve at least one-for-
one mitigation of all wetlands impacts,
on an acreage basis for the District as a
whole, In documenting compliance with
this requirement, districts should not
include preservation of existing
wetlands in their district-level tally of
compensating wetlands mitigation.
Preservation, while it may be important
for the aquatic environment and may be
appropriate in some cases as mitigation,
does not compensate for lost wetlands.
The Corps has also slightly modified
the wording of paragraph (f) of this
general condition from what was
proposed to clarify that the requirement
to mitigate wetland impacts is not
waived only the requirement to provide
wetland mitigation. The stream buffers
themselves may provide mitigation for
wetland impacts. The wording is also
revised to clarify that the District
Engineer may reduce as well as
completely waive the requirement for
wetland mitigation for wetland impacts.
One commenter stated that the waiver
would conflict with the Corps policy
that nationwide permits have only
minimal adverse effects on the aquatic
environment. Another commenter stated
that wetlands offer too many important
services to be sacrificed by
implementing this waiver. One
commenter suggested that guidelines
should first be developed that identify
the circumstances which warrant the '
use of a waiver mechanism and outline
its proper implementation.
The waiver will not sacrifice
wetlands; it will ensure the best
mitigation for each permit decision that
is made. The Corps cannot establish
specific guidelines beyond what we
have for waiver of the one for one
acreage requirement. The Corps has
exceptional biological and ecological
expertise in the districts and we trust
those professionals to make the proper
judgments in each case.
One commenter suggested that the
Corps coordinate with regulatory
natural resource agencies for out-of-kind
mitigation when the one-for-one
mitigation requirement is waived.
The Corps 1,150 district employees in
the Regulatory Program are
predominantly biologists and ecologists.
These exceptional professionals have
the capability to make the ecological
mitigation judgments, and with 40,000
nationwide permit decisions made
every year the other agencies do not
have the capability to substantively
comment on every project.
Many commenters agreed with the
proposed waiver of the one-for-one-
mitigation requirement, stating it would
provide the Corps with increased
flexibility when determining
appropriate mitigation. One commenter,
while agreeing with the proposal,
suggested the applicant should be
required to justify why a less than one-
for-one mitigation is appropriate by
clearly articulating why a mitigation
area's functions and values are greater
than what was lost.
We agree that proper mitigation
decisions will be made under the
revisions to Condition 19. The Corps
will make a decision in writing when
the one for one acreage ratio, for
mitigation will not be met. In most
cases, that decision will be based on the
applicant's information, however, we do
not believe we should require a process
that may not in some cases be needed.
Applicants should note however that
providing sound justification with a
waiver request will increase the chances
of the waiver being granted.
Vegetated Buffers
Many commenters were opposed to
the use of vegetated buffers to mitigate
wetland losses. Several stated that
allowing vegetated buffers to count as
mitigation would be counter to current
Federal mitigation guidance and the
goal of "no net loss". One commenter
suggested the proposal constitutes a
major change in mitigation policy by
establishing a sort of "ecological
trading", allowing the offsetting of
impacts to wetlands with compensation
through non-wetland environmental
improvements. Other commenters stated
that this proposal was against Corps
policy that nationwide permits have
minimal adverse effects on the aquatic
environment.
The Corps believes that vegetated
buffers are a critical element of the
overall aquatic ecosystem in virtually all
watersheds. Of course, some arid areas
do not have vegetated buffers even in a
natural state and the Corps will not
require vegetated buffers where they
would not naturally occur. However,
nationwide this is uncommon. The
Corps believes we need to protect open
waters better than we have in the past,
and vegetated buffers are a critical
element of that protection. Many
vegetated buffers to open waters are in
fact wetlands. Some vegetated buffers
are uplands, but are critical to open
water protection. The Corps believes in
a watershed approach, with the ability
of the Corps districts to make the best
decision for the aquatic ecosystem and
watershed where the permitted impacts
will occur. Mitigation, including
vegetated buffers is used to ensure that
no more than minimal adverse effects
on the aquatic environment will occur.
Several commenters indicated that it
was inappropriate to suggest that
vegetated buffers in uplands could act
as compensatory mitigation for the
placement of fill in waters of the U.S. A
few commenters stated that, as a means
of increasing value of mitigation,
vegetated buffers are beneficial and are
often incorporated into compensatory
mitigation plans to offset the adverse
effect of an individual permit
authorization. However vegetated
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2065
buffers alone will not fully compensate
for wetland loss, do not replace
wetland/aquatic environment value and
function, and should not be regarded as
compensatory mitigation for the
placement of fill in waters of the U.S.,
but instead should be added to the one-
for-one mitigation requirement.
The Corps takes a holistic watershed '
approach to mitigation of impacts to
waters of the U.S., which includes
impacts to non-wetlands. Yegetated
buffers, both upland and wetland are a
critical part of that watershed approach.
The Corps needs the flexibility to make
the best mitigation decision for each
watershed.
A few commenters were concerned
that vegetated buffers may be used more
often than one-for-one wetland
mitigation (e.g, restoration,
enhancement, and/or creation),
supporting a continual loss of wetland
habitats. Concerned for cases in which
less than one-for-one mitigation of lost
wetlands incorporates the establishment
and/or preservation of vegetative buffers
as part of that mitigation, commenters
suggested a careful analysis of the
functions and values of the vegetated
buffers as compared to the impacted
wetlands be performed.
The Corps will use the modified
Condition 19 to make the best decision
for the watershed where the permitted
effects occur. The Corps will continue to
require more than one for one mitigation
for wetlands, it is just not required for
every permit decision, because that does
not always make sense for the aquatic
environment. :
, One commenter suggests that
functional assessments of mitigation
with the purpose of justifying ratios less
than one-for-one based on a projected
functional boost provided by the buffer
is inappropriate. Rather, the Corps
should also address functional impacts
to wetlands under the permit process
and require mitigation for loss of
functional value from permitted impacts
to vegetated buffers.
The Corps does use a functional basis
when requiring mitigation, but since
models to assess aquatic ecosystem
functions, including but not limited to
wetlands, are not yet comprehensive,
the decision requires professional
judgment. The Corps 1,150 Regulatory
Program employees are predominantly
biologists and ecologists, so we have the
capability to make sound ecological
decisions.
One commenter stated the proposed
regulations do not require proof that
vegetated buffers or other methods of
mitigation would replace lost functions
and values of an impacted wetland. This
commenter added that'they were not
convinced the Corps would be able to
assess lost functions resulting from
impacts to particular wetlands or those
functions gained by incorporating
vegetated buffers.
The Corps makes its mitigation
decisions on an aquatic ecological
function basis using professional
judgment. With thousands of decisions
each year many involving less than 0.1
acre of impact, it is not practical, nor a
responsible expenditure of resources to
require absolute proof that the .
mitigation will offset the impacts.
Programmatically, the Corps will
improve its enforcement, and mitigation
banks and in lieu fees are an important
part of that improved mitigation
performance.
One commenter disagreed with the
Corps statement regarding the greater
effectiveness of vegetated buffers at
protecting open waters due to their .
relative proximity to open waters over
those wetland distant to open waters.
Instead, the commenter suggests that the
relative effectiveness of vegetated
buffers and wetlands at protecting open
waters depends more on the nature of
water flow through an area than on the
proximity of the buffer or wetland to the
water body.
There is no doubt that vegetated
buffers protect open waters in terms of '
removing non point source water
pollution. Vegetated buffers also
stabilize the shoreline of open waters
and in most cases provide important
aquatic habitat such as shading or
providing hiding places during high
water. The Corps believes that
establishing or maintaining existing
vegetated buffers to open waters is
critical to overall protection of the
nations aquatic ecosystems. The Corps
agrees, however, that the relative
importance of wetlands and vegetated
buffers at any particular site is
dependent on site-specific factors. This
is why Corps field staff must have
flexibility to determine appropriate
mitigation on a site-specific basis.
One commenter stated that vegetative
buffers must not be used in lieu of
wetlands mitigation, but there must be
a preference for restoring, enhancing, or
creating buffers as a component of
appropriate mitigation. The commenter
further stated that the Corps must
require a minimum 100-foot-wide
riparian or wetland buffer (instead of ,
the proposed 25 to 50 feet), to be
increased as necessary in proportion to
the size and shape of waters they
surround to obtain the desired
performance.
The Corps will take a watershed
approach with mitigation, which will
include vegetated buffers as a critical
element of mitigation. The Corps must
be reasonable in the width of the
vegetated buffer required. While a wider
buffer clearly provides more protection,
even a narrow vegetated buffer provides
important protection for the aquatic
environment. In determining
appropriate buffer widths, the Corps
must balance environmental protection
with what is reasonable given the scope
of the project and the level of impacts
that need to be mitigated.
One commenter stated that the Corps
proposal is counter to Federal policy
and Corps guidance that favors
mitigation banks in the context of
general permitting.
The Corps believes the proposed
changes to Condition 19 are consistent
with Corps policy. Mitigation banks are
one important form of mitigation, but
there are many others. The proposed
changes will enhance, not limit, the
opportunity to use mitigation banks by
providing greater flexibility to Corps
field staff to determine the most
environmentally beneficial mitigation.
One commenter expressed concern
that vegetated buffer areas, especially
non-jurisdictional habitats, used as
mitigation, would not be afforded the
same protection by existing laws as
mitigation sites in which jurisdictional
areas are created, enhanced, restored, or
preserved. .
Vegetated buffers established or
preserved in uplands are subject to the
same protection as aquatic areas are
through permit conditions. The Corps
will generally require that all mitigation,
including upland areas that are parts of
vegetated buffers, are placed in
conservation easements or protected in
some other manner.
One commenter recommended that
the Corps only consider other forms of
mitigation as part of an overall
compensatory mitigation requirement
once no net loss of function and acreage
is obtained, and that a conservation
easement or deed restriction be required
for all such mitigation.
The Corps will take a holistic
watershed approach to mitigation
without arbitrarily favoring any type of
mitigation. The Corps biological and
ecological capability in the districts will
be used to make the best mitigation
decisions.
A few commenters disputed the
appropriateness of the "normal"
requirement of upland buffers as
compensatory mitigation to open waters
since it exceeds the Corps statutory
authority to regulate these areas. A few
commenters expressed concern that .
requiring vegetated buffers as mitigation
may be invalid where the condition
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bears no relationship to the impacts of
the discharge on a particular site.
Vegetated buffers required by the
Corps as mitigation on open waters is
within the Corps authority because they
are providing water quality benefits to
the open water areas and often the
vegetated buffer provides aquatic habitat
such as shading to maintain cool water
stream. All mitigation, whether
vegetated buffers or wetland mitigation,
must be related to the impacts
authorized. The Corps views that
relationship in the context of the overall
aquatic environment on a watershed
basis.
One commenter suggested that the
Corps' advocacy of the use of vegetated
buffers for mitigation of impacts to
waters of the U.S. is an abandonment of
a long-standing policy of "no net loss"
and requirement of in-kind wetlands
mitigation, and called for an adequate
basis for this change in policy.
The proposed modification to
Condition 19 does not change the Corps
commitment to no overall net loss of
wetlands. The Corps has required no
overall net loss of wetlands since the
early 1990s and will continue to do so
under the revised condition. The
changes to Condition 19 simply allow
the Corps to make the best mitigation
decision on a case-by-case basis from a
watershed perspective. Requiring one-
for-one mitigation in every single permit
does not support a watershed approach
to mitigation because it focuses
excessively on one type of mitigation.
Although the Corps believes that
flexibility is needed on a project specific
basis to determine the appropriate
mitigation, we will continue to ensure
that the NWP Program results in no
overall net loss of wetlands. On an
individual permit basis, the Corps often
requires greater than one-for-one
mitigation on an acreage basis, due to
the value of the replacement acreage,
temporal effects and risk factors. As
noted above, to further ensure that no
net loss is achieved, we are establishing
a requirement that all Corps districts
must meet an annual goal of at least
one-for-one wetlands mitigation on an
acreage basis for verified nationwide
permit activities within each district for
each fiscal year. The Corps will collect
information documenting compliance
with this requirement and make it
available on the internet.
Numerous commenters agreed with
eliminating the mandatory one-for-one
mitigation requirement to qualify for an
NWP, stating that it would provide
Corps with increased flexibility in
determining mitigation requirements
that may be more appropriate and
environmentally beneficial. A couple of
commenters also favored the proposed
waiver because they believe the very
low PCN thresholds for the NWPs
creates situations where many small
projects become subject to review for
which one-to-one mitigation would be
overly burdensome and impracticable.
The Corps agrees with these
comments.
One commenter supported the
proposed use of buffers as mitigation,
but cautioned the Corps to avoid
suggesting any minimum width
prescriptions or specific replacement
ratios. Another commenter cautioned
that, in situations where less than one-
for-one mitigation of permanent impacts
to wetlands is allowed, and the
establishment and/or preservation of
vegetative buffers as mitigation is
proposed, then a careful analysis must
be conducted and include a
determination of the function and value
of the proposed vegetated buffers as
compared to the impacted wetlands.
The commenter indicated that
determining the width of vegetated
buffers is extremely subjective, and that
mitigation containing these features
should be scrutinized to ensure the
vegetated buffers have sufficient width
and length to provide habitat in and of
themselves, not just for the waters of the
U.S. they border. Another commenter
stated that alternative mitigation
measures, such as vegetated buffers,
should be valued and compared to
permitted losses only to the degree that
they enhance or create wetland
functions beyond what would exist
without them (e.g. a 10-acre buffer
placed around a 5-acre wetland would
not necessarily offset 10, or even 5
acres, of wetland impacts; rather, if the
5-acre wetland were improved 20
percent in habitat value the buffer
would receive credit for mitigating only
1 acre of wetlands impact.)
The Corps must make its mitigation
decisions based on the information
available and based on the significant
knowledge and understanding of the
aquatic environment that the district
staff of biologists and ecologists possess.
The Corps can not always quantify
precise offset determinations, and it
would not make sense to do so in the
nationwide permit program because
project specific impacts are generally
limited to less than one half acre, and
are often one tenth of an acre or less.
A few commenters agreed with using
vegetated buffers as mitigation, but
opposed using upland buffers as
additional compensatory mitigation,
suggesting that they are neither a
wetland nor aquatic resource, and
therefore it is not justifiable to include
a requirement of upland vegetated
buffers as additional compensatory
mitigation. The commenters suggested
that if the Corps normally includes a
requirement for establishment,
maintenance, and legal protection of
vegetated buffers, then the total
mitigation requirement shall not exceed
that necessary for wetland impacts, (i.e.
if total proposed wetland impacts are Vz
acre and one-for-one mitigation is
required, then the total amount of
mitigation that should be required,
inclusive of any upland buffers, should
not exceed Vz acre). One commenter
suggested that the Corps establish a
maximum percentage of overall
compensation that "alternative forms"
of compensation (such as vegetated
buffers) may comprise.
As stated above, the Corps is
committed to a holistic watershed
approach to mitigation and that cannot
be accomplished with rigid quantitative
requirements. The Corps regulates the
entire aquatic environment, not just
wetlands. Mitigation must consider the
entire aquatic ecosystem as well. The
Corps has and will continue to
programmatically require greater than
one-for-one acreage of wetland
mitigation to account for differences in
function and values, temporal losses
and potential failure of mitigation. The
Corps will continue to require greater
than one-for-one acreage mitigation for
wetlands programmatically, but some
projects should not and will not require
such mitigation, because it is not what
is best for the aquatic environment.
One commenter stated that upland
(riparian) buffers could be used as
mitigation for stream or other non-
wetland impacts, but should not be
allowed to compensate for wetlands.
Another commenter stated that the use
of upland buffers as compensatory
mitigation is acceptable, provided that it
is at the option of the permittee and that
the amount of land required for
mitigation is proportionate to the
impacts.
The Corps will require mitigation for
permitted impacts based on a watershed
approach and what is best for the
aquatic ecosystem in that watershed.
This approach will often involve a mix
of vegetated buffers and other wetland
mitigation. In some cases it will involve
only one type of mitigation. In all cases,
mitigation will be based on what is best
for the overall aquatic environment in
the particular watershed involved. The
Corps always tries to ensure that
mitigation requirements are
proportionate to impacts, though the
areas affected may be greater or less
depending on site-specific
circumstances.
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2067
One commenter cautioned that
incorporating vegetated buffers as
mitigation measures may prove
problematic, especially if a particular
organism relies on vegetated buffer
habitat that is injurious to another
organism using die same aquatic system.
The Corps recognizes this concern. It
is one example of why the Corps must
use its professional judgment based on
a holistic watershed approach to
determine appropriate mitigation.
One commenter warned that,
vegetated buffers present a promising
tool with real benefits to water quality
and public resource, but are not always
compatible with existing functioning
federally authorized flood protection
systems. In some instances, they may
reduce channel capacities and conflict
with maintenance activities; in others,
they may improve flow.
The Corps will consider the aquatic
environment and the practicability of
requiring vegetative buffers. The Corps
will not require vegetative buffers where
it would have adverse effects on projects
such as flood control projects.
Several commenters stated that
guidelines and clarification on the
appropriate use of non-wetland
vegetated buffers as mitigation for
impacts to wetlands should be
developedperhaps by the Corps and
other appropriate natural resource
agencies, or through some form or
rulemakingprior, to extending them
credit as compensatory mitigation. A
few commenters stated that the Corps
should develop guidelines to support
the need to establish buffers and
standards and criteria for determining
appropriate buffer types and widths
based on intended benefit, adjacent land
use, density of vegetative cover, etc.,
and that this documentation should be
put forth for public comment. One
commenter stated that the current
guidance regarding upland vegetated
buffers is lax, suggesting little other than
prohibition of using mowed lawns and
encouraging use of native vegetation. As
such, golf course roughs, where the
height of vegetation is^actively managed,
and areas subject to human disturbance
could be proposed as compensatory
mitigation for the loss of wetlands.
Similarly, landscaped areas of
development projects could be proposed
as compensatory mitigation1 as well.
The Corps can not establish detailed
guidelines for vegetated buffers on a
nationwide basis. No such guidance
exists for wetland mitigation either.
Such detailed guidance for wetland
mitigation would not be sensible just as
detailed guidance for vegetated buffers
would not make sense. ThelCorps has
adequate protections in the condition to
ensure that vegetated buffer mitigation
will be properly used by the districts.
As stated many times above, the Corps
is taking a holistic watershed approach
to mitigation which relies on the
exceptional expertise of our 1,150
district employees, who are
predominantly biologists and ecologists.
Corps Preference for Restoration Over
Preservation .
Many commenters stated that the
preference for restoration of wetland
impacts over preservation must be
maintained. Several commenters
indicated that restoration should be the
preferred option, since, for certain, a net
loss of wetlands will always occur when
preservation is chosen as mitigation.
One commenter stated that preservation
does not necessarily ensure replacement
of functions and values of lost wetlands.
A couple of commenters stated that
many of the existing wetlands that are
appropriate for preservation are already
protected by law. Therefore,
preservation should only be used in
extreme situations, such as when the
wetlands are under threat or not ,
afforded protection (isolated wetlands),
or when the wetlands to be preserved
are large or are of high significance. One
commenter suggested that if and when
preservation of high quality wetlands is
preferred, it should force the project to
be reviewed under an individual permit
instead of a nationwide permit, allowing
the state, the public and other resource
agencies to review the proposed project.
The Corps is increasingly taking a
holistic watershed approach to
mitigation of impacts in our Regulatory
Program, including the nationwide
permit program. The Corps district
experts must have the flexibility in
policy to make decisions that support a
holistic watershed approach.
Preservation is often a very important
component of a watershed approach.
Some of the most important and high
functioning wetlands are potentially
subject to many activities that are not
regulated by the Corps or any other
governmental body. Therefore, absent
the protection by preservation of these
high value areas through mitigation they
will be degraded over time. Restoration
is the main method of mitigating
impacts to the aquatic environment
permitted by the Corps and it will
continue to be the primary mitigation
approach. The Corps has slightly
modified'the wording in paragraph (c)
of this general condition from what was
proposed to clarify that this preference
for restoration applies regardless of
what wetlands mitigation ratio is
required at a specific site.
However, preservation is also a very
important tool in the Corps ability to
mitigate impacts on a holistic watershed
basis. Protection of the aquatic
environment through preservation of
high value aquatic areas is critical to
protecting the nation's aquatic
ecosystems. The view that preservation
is not appropriate because the areas are
not "new" is shortsighted and has
proven to be mistaken because of the ,
significant impacts to wetlands that are
not protected through preservation,
particularly when the preservation
includes adjacent uplands and open
waters as a preserved matrix of
environmental assets that work together
to produce high value habitat. However,
the Corps recognizes that preservation
does not provide new acres and thus
cannot compensate for wetlands loss on
an acreage basis. As noted above, the
Corps will instruct district offices not to
include preservation in their
documentation of compliance with the
minimum one-for-one district level
mitigation requirement.
A few commenters stated that
preservation of wetlands is preferable to
restoration. The evolving emphasis on
watershed assessment and protection
underscores the need and importance of
preserving aquatic ecosystems. One
commenter pointed out that if sites are
established, and functioning well, it
would appear that preserving them
should be critical in attempts to
maintain the present and future value of
wetlands. If vegetated buffers, or the
enhancement of uplands, adjoining
wetlands are important enough to be
considered as mitigation credit, then
preservation of existing wetlands
adjacent to a mitigation site should be
at least similarly credited.
We agree with these commenters to
the extent that they identify the
importance of a holistic approach to
mitigation. However, as noted above,
restoration will continue to be the
primary mitigation approach, and
preservation will not be counted in the
district-level one-for-one mitigation
requirement.
One commenter opposed the use of
preservation of onsite avoided wetlands
or wetland buffers as compensatory
mitigation since it credits the avoidance
of impacts, which is the first step in
mitigation sequencing, a second tune in
the form of compensation for
unavoidable impacts. The commenter
did state that off-site preservation was
acceptable, however, since it did not
conflict with the on-site mitigation
sequencing process.
Whether me Corps requires
preservation and gives project-level
mitigation credit for onsite or offsite
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preservation depends on the size,
functional value and relationship of the
area to other aquatic areas. For example,
preservation of an extremely high value
wetland on the border of a permitted
development site where that high value
wetland is part of a larger high value
wetland system is a very positive
mitigation approach in terms of holistic
watershed protection of the aquatic
environment, particularly if it increases
the chances that the entire system will
be preserved. On the other hand,
preservation of a small moderate value
wetland that will be surrounded by
paved parking areas and may lose its
hydrology because of overall site
development may not make
environmental sense, on-site or off-site.
Several commenters stated that there
should be no established Federal
preference of either restoration or
preservation, and both are equally
appropriate. One commenter suggested
that a preference for restoration over
preservation could result in an
opportunity to preserve a highly
functioning wetland being overlooked.
Other commenters urged greater
acceptance of preservation when the
area to be preserved is of high value,
subject to significant impacts, and
included in a wider planning
framework, and restoration/creation are
not feasible and wetlands are in
abundance, locally, compared to other
important resources. Several of the
commenters stated that the decision to
use either preservation or restoration (or
a combination of the two) should be
flexible and left up to the individual
Corps Districts to decide on a case-by-
case, local or watershed basis,
depending on which type would be
most appropriate.
We agree with these commenters.
One commenter stated that there
should be guidance showing the need
for preservation before it is used over
any other type of mitigation for wetland
losses.
This does not support the holistic
watershed approach the Corps is
working to establish, and would not be
a good use of Corps resources. We want
Corps districts to focus their limited
resources on what makes sense for the
aquatic environment in a particular
watershed.
One commenter stated that the use of
either preservation or restoration is
contrary to the "no net loss" policy and
the goal of the CWA to restore and
maintain the physical, chemical and
biological integrity of the Nations
waters. The General Condition should
require that project impacts be fully
offset unless the applicant demonstrates
that full offset is impracticable. At a
minimum, mitigation must offset all
impacts that are more than minimal,
both individually and cumulatively.
The Corps has and will continue to
require mitigation that is necessary to
reduce project impacts to the minimal
adverse effect level. The Corps will
continue to meet the no overall net loss
goal for wetlands because most wetland
mitigation is at a greater than one for
one acreage basis to ensure that the
functional impacts authorized are offset
by the mitigation. In addition, districts
will be required to document at least
one-for-one mitigation at the district
level.
One commenter stated that the
preference for restoration over
preservation affects the entire Section
404 program and the preamble of the
NWPs is not the appropriate forum to
discuss and change that policy.
The Corps does not agree that it is
inappropriate to discuss this policy, as
it relates to the implementation of the
NWP program. The Corps is not
proposing to change this policy. The
preference for restoration over
preservation is preserved in the
language of paragraph (c) of GC 19.
Mitigation Bonding
Several commenters stated that unless
a comparable bonding program exists
within the Districts, bonding of
mitigation measures under NWPs
should be established that obligate a
permittee to complete the mitigation,
bond the mitigation activity and success
period, and allow the Corps to execute
the bond in the event of forfeiture.
The Corps is currently reviewing
guidance which addresses bonding and
otherwise protecting mitigation sites
and ensuring they will be successful.
The principles in that guidance will
apply to the nationwide permit
program. Bonding is just one tool
available to the Corps in its efforts to
ensure that required mitigation is
established and is successful.
Other Comments on General Condition
19
Several commenters suggested the
Corps should require natural resource
agency review of all mitigation plans,
especially mitigation proposing the use
of vegetated buffers. One commenter
requested rewording of General
Condition!9c to read* * *" unless the
District Engineer determines [in
consultation with the appropriate
natural resource agencies through a PCN
coordination process such as that
described in General Condition 13,] that
some other form of mitigation* * *"
The Corps does not agree. We believe
that such a change would result in
excessive review that would not result
in benefits for the aquatic environment.
The commenting agencies do not have
the staff necessary to evaluate all such
projects either. The Corps has the
technical expertise and capability to
make these determinations. Where
appropriate, the Corps does and will
continue to consult with other agencies.
Many commenters stated that
numerous studies from around the
country, including recent studies
conducted by the National Academy of
Science and General Accounting Office,
showed that mitigation is not fully
successful, and does not compensate for
wetlands lost to permitted fills.
Therefore, reducing mitigation
requirements that already aren't
working is unsupportable.
The Corps is not reducing the
mitigation requirements necessary in
the nationwide permit program. The
requirement remains that mitigation
adequate to ensure no more than
minimal adverse effects on the aquatic
environment will be required. The
Corps agrees with the NRC/NAS report
that we must improve the success of
mitigation. One method the Corps has
used, and will continue to use, to deal
with the failure of some mitigation is
higher ratios of mitigation for most
impacts. Consolidating mitigation into
larger sites through mitigation banks,, in
lieu fees, and other large mitigation
areas as well as protecting a matrix of
environmental assets in mitigation areas
including wetlands, open waters and
uplands will also serve to improve
mitigation in the long term.
Several commenters indicated that the
Corps must improve data collection
from mitigated projects and reporting
cumulative wetland losses to evaluate
and ensure that impacts to waters of the
US have been minimized and the goals
of the program achieved.
We agree that we need to improve our
data collection and tracking of
mitigation and will soon bring a new
data system on line to facilitate such
tracking. By better documenting the
mitigation requirements included in
NWPs and tracking the fulfillment of
these requirements, the Corps will better
ensure that the impacts authorized are
offset to the level that no more than
minimal adverse effects will result.
One commenter stated that the
proposal continues to elevate one form
of mitigationcompensationabove all
others by automatically requiring that
type of mitigation in every instance.
Thus, the program fails to consider
whether avoidance and/or minimization
has been sufficiently incorporated into a
project to the maximum extent
necessary.to ensure that adverse effects
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2069
to the aquatic environment are minimal.
Then, in a gesture toward easing the
burden of compensatory mitigation, the
Corps allows different types of
compensation, such as vegetated
buffers, to be used in lieu of providing
one-for-one wetlands compensation.
The Corps should treat ALL forms of
mitigation uniformly, not just all forms
of compensation, especially those such
as the use of upland buffers which are
not subject to regulation or! jurisdiction.
This omission removed any incentive to
incorporate avoidance and
minimization efforts. The Corps is urged
to remove preferential treatment given
.to compensatory mitigation, over
avoidance and minimization, by
deleting all mandatory compensation
requirements.
We disagree with these comments
because deleting all compensatory
mitigation requirements would
substantially reduce protection of the
aquatic environment by reducing
mitigation, much of which:is very
successful. The Corps will instead take
a watershed approach to mitigation, as
discussed above. ;
One commenter stated the acreage of
fill placed in waters of the U.S. to
construct compensatory mitigation must
be included in the calculation of acreage
and impacts. These fills should not be
discounted, because compensatory
mitigation does not always succeed, and
can result in the conversion of one type
of water of the U.S. to another.
The Corps considers the ioverall
impacts of a proposed project. Fill in
waters of the US involved with
mitigation projects is very small in
volume in essentially all cases. If there
were a case where potentially
substantial impacts would.be involved
in the mitigation project the Corps will
consider that impact. However, the
acreage used to construct compensatory '
mitigation projects is not counted in the
acreage limit of the NWPs.i
A few commenters stated that in-kind
mitigation must be mandatory for all
unavoidable impacts to wetlands, non-
wetland aquatic habitats, and terrestrial
habitats.
We disagree. The Corps ^vill take a
watershed and holistic approach when
requiring mitigation.
A few commenters stated that
mitigation ratios recommended by EPA
Region 4 must be adopted as the
absolute minimum ratios for wetland
mitigation. i
The Corps disagrees with nationwide
mandatory ratios on a permit-specific
basis although, as noted above, ratios
exceeding one-for-one are often
required. The underlying requirement
for mitigation in the nationwide permit
program is that the mitigation reduces
the permitted adverse effects on the
aquatic environment to the minimal
adverse effect level.
A few commenters stated that there
should be a requirement for detailed
mitigation plans as part of each PCN,
which at a minimum identify specific
mitigation sites, detailed mitigation
development/management plans,
assurances against mitigation failure;
success criteria, detailed monitoring
plans, details of protection afforded to
guarantee functions replaced by the
mitigation will be protected and
maintained in accordance with
objectives, and identification of the
party responsible for the mitigation.
We believe we have required the
proper level of documentation for PCNs
submitted to the Corps. If the Corps
determines on a case by case basis that
additional information is necessary to
ensure that any permitted impacts will
be offset by mitigation the district can
require such information.
Several commenters stated that
mitigation buy downs to meet the
404(e)(l) minimal effects requirement
should be prohibited in the context of
NWPs. A couple of commenters
questioned the capability of any type of
mitigation to compensate for the
complete loss of an aquatic
environments. One commenter pointed .
out that there is significant scientific
evidence, the validity of which is
recognized by the Corps and other
federal agencies.which shows that
wetlands mitigation often fails, meets
mixed success, or does not replace lost
functions/values. Thus, mitigation
cannot assure minimal effects. The
commenter adds that if minimal effects
are not achieved through the use of
NWPs, then their use should be
prohibited since they cannot satisfy the
CWA's requirement of minimal
cumulative adverse effects. One,
commenter suggested that any activities
having adverse impacts sufficient to
warrant compensatory mitigation be
converted to an individual permit.
However, another commenter stated that
some compensatory mitigation plans
which have been reviewed under
individual permit public notice were
inappropriate for the resources lost, and
would not adequately replace lost
functions and values, and therefore they
see no reason to believe that
compensatory mitigation proposed for
NWPswhich lacks public review and
agency commentwould be any better.
The Corps understands that some
mitigation projects fail. We are working
to improve the success of mitigation we
require. The test for mitigation for
adverse effects on the aquatic
environment under the nationwide
permit program is to ensure no more
than minimal adverse effects after
considering the required mitigation. For
general permits, by regulation, impacts
to the aquatic environment are to be
avoided to the extent practicable on the
project site. These regulations are not
being changed. General Condition 19
deals with mitigation when it is
required, after impacts to aquatic areas
have been avoided to the extent
practicable.
One commenter suggested that
language regarding compensatory
mitigation be narrowed to prevent its
use in open water habitats in navigable
public waterways. The commenter
states that there is an unwarranted
assumption that compensatory
mitigation can be relied on to
compensate for alteration or destruction
of naturally occurring aquatic
ecosystems, including open waters. The
commenter adds that habitats should
not be tradeable; each is unique and
artificial habitats are not as good as the
real thing. Eliminating open water by
constructing wetlands or altering the
habitat as mitigation can destroy species
which are dependent upon open water.
These comments identify one of the
many reasons that the Corps is changing
its approach in Condition 19 to more
effectively allow the Corps expert
biologists and ecologists to make project
specific decisions on impacts to be
authorized and mitigation that will be
required.
One commenter suggested that NWPs
should require mandatory mitigation for
all unavoidable impacts to non-wetland
aquatic habitats and to terrestrial
habitats since these areas have
. significant ecological value as do
wetlands.
The Corps regulates the aquatic
environment not uplands. We may
require upland vegetated buffers as
mitigation to the extent the vegetated
upland buffers to open waters protect or
enhance aquatic functions and habitat.
The Corps agrees we need to more
effectively mitigate impacts permitted to
waters other them wetlands. That is
precisely why the Corps is modifying
Condition 19 to allow flexibility in
mitigation decisions that are holistic
and take a watershed approach.
One commenter stated that the Corps
should emphasize the importance of
accurate assessments and expressly
indicate whether it has taken into
account new data on mitigation
methods.
The Corps continually works to
improve its mitigation approaches at the
Corps district level. The Corps districts
are where the local technical expertise
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resides and they continually adjust the
program based on new information.
One commenter stated that the Corps
should reassert its policy and preference
of utilizing mitigation banking versus
in-lieu-fee or other types of
compensation for mitigation in the
context of General permits.
The Corps needs to use all mitigation
options in its tool box, including
mitigation banks and in lieu fees. These
methods are extensively used and will
continue to be extensively used because
they are effective and simple for the
applicant.
One commenter stated that mitigation
bankers acknowledge financial
considerations and not always
ecological considerations in locating
mitigation banks. This does not ensure
that functions and values lost within a
local watershed will be replaced, a fact
acknowledged by the Corps in the last
version of the NWPsmitigation banks
are usually constructed and maintained
by entrepreneurs, who locate mitigation
banks in areas where they believe the
established credits will sell quickly".
The Corps requires mitigation that
will offset the permitted adverse effects
on the aquatic environment. The Corps
identifies service areas for mitigation
banks based on reasonably focusing
mitigation in watersheds where impacts
are permitted. We will continue to
approve mitigation bank service areas in
a manner that recognizes the need to
offset impacts in the same watershed to
the extent practicable. The fact that
mitigation banks are designed to be
financially successful does not mean
that they will not also be ecologically
successful. On the contrary, ecological
success is a prerequisite for financial
success.
One commenter stated that the Corps
should prohibit the use of in-lieu-fee
mitigation since it does not ensure no
net loss of wetlands, and at best may
provide some protection for existing
wetlands. The time constraints of the
review and approval process for NWP's
limits adequate analysis of this type of
mitigation. In the absence of meaningful
resource agency and public review, in-
lieu-fee mitigation is not consistent with
the goals of the CWA of "restoring/
maintaining the chemical, biological
* *»
This commenter appears not to
understand in lieu fee programs
approved by the Corps. The majority of
in lieu fee mitigation involves some
type of restoration, creation or
enhancement of aquatic areas. Some of
the mitigation is preservation, but not
all mitigation under in lieu fees involves
only preservation. In lieu fee
arrangements are getting better as time
goes forward. The GAO report that
raised concerns about the Corps use of
in lieu fees was incomplete in that it
limited its in lieu fee program analysis
to in lieu fees programs that were in
place as of 1997, when the approach
was still very new. Substantial
improvement has occurred since 1997
in the Corps use of in lieu fees.
One commenter objected to any
changes and additions to mitigation
requirements after the environmental
documents have been completed and a
Record of Decision issued, stating that it
is a violation of Congress' mandate for
streamlining as well as a violation of
NEPA and should be prohibited in the
permitting process.
The environmental documentation
will be finalized as we issue the
nationwide permits in final form. No
changes to the new permits will occur
after that, unless they are revised or
reissued following opportunity for
public comment.
One commenter indicated that offsite
mitigation greatly reduces overall
aquatic habitat quality and natural
functioning. Mitigated wetlands have
been demonstrated time after time to
"show a decrease in native plant species
diversity", and are "not functionally
equivalent to reference sites" in terms of
"flood retention, water quality
improvement and habitat provision."
The Corps will take a holistic
watershed approach to mitigating
impacts permitted. Onsite mitigation is
typically best for water quality measures
including vegetated buffers and
stormwater management. However,
onsite mitigation for loss of habitat,
such as wetlands is usually less
preferable to offsite. Moreover,
consolidated mitigation such as that in
mitigation banks and in lieu fee
operations is generally more successful
than project specific mitigation. All of
these principles are consistent with the
findings of the recently issued NRC/
NAS report. In fact, the changes to
General Condition 19, are intended to
facilitate the adoption of some of the
report's recommendations, by moving
toward a watershed approach.
One commenter objected to the use of
in-lieu-fee agreements for compensatory
mitigation, especially in areas where
land prices are high and in-lieu fees
low. Money must sit in an account for
many years before any use can be made
of it, while the nation suffers temporal
loss of wetlands and the in-lieu-fee
cannot provide adequate compensation.
The Corps is improving its in lieu fee
arrangements to ensure that ecological
mitigation will Occur within 2 years of
accepting funds from permittees.
A commenter stated that mitigation
should be required for any length of
piping or filling of streams covered by
NWP. The US has lost thousands of
miles of headwater and streams from the
landscape. It is .time to recognize the
ecological services provided by these
ecosystems [in addition to wetland].
The proposed changes to General
.Condition 19 are specifically designed
to improve our ability to consider and
properly mitigate impacts to streams.
We agree that too often in the past
stream impacts may have been
overlooked. Decisions on the level of
mitigation required by the Corps will be
made on a case-by-case basis by the
Corps districts.
The General Condition is adopted
with the wording clarifications
discussed above.
20. Spawning Areas. There were no
changes proposed to this General
Condition. However, one commenter
recommended that the statement
"important spawning area" should be
rewritten to say "spawning areas that
support federally-listed or special status
fish". Another commenter agreed that
this General Condition 20 is acceptable
but stated that it would not sufficiently
protect the areas intended. This
commenter suggested that discharges
into spawning areas should be
prohibited year round and not just
during spawning season. The
commenter requested that the second
paragraph, which states "Activities that
result in the physical destruction of an
important spawning area are not
authorized" be changed to "Activities
that could result in the physical
destruction of an important spawning
area, up or downstream, are not
authorized".
We disagree with these comments. It
is not appropriate to narrow this
condition to cover only Federally-listed
or special status fish. General Condition
20 prohibits the physical destruction of
important spawning areas. However, it
does allow temporary effects provided
they occur outside of the spawning
season. We believe this adequately
protects such spawning areas and
ensures that there will be no more than
minimal adverse effects, on the aquatic
environment, individually and
cumulatively.
The General Condition is adopted
without change.
21. Management of Water Flows. The
Corps proposed to revise the wording of
this General Condition to clarify that
normally detailed studies and
monitoring would not be required, but
may be required in appropriate cases.
Several commenters agreed with the
proposed clarification. One commenter
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2071
supported the clarification but believed
the Corps is exceeding its authority by
regulating water flow and suggested the
Corps delete the requirement to
maintain precbnstruction flow or clarify
how compliance with this requirement
will be judged. A few commenters
opposed the proposed clarification
because, without flow information it will
be hard to determine if the impacts are
only minimal to the aquatic
environment, including indirect
impacts. One commenter recommended
that each applicant be required to
submit a written description of how the
requirements of General Condition 21
will be met. One commenter suggested
that General Condition 21 should state
that the Corps defers to state and local
authorities when local regulations are in
place. ;
Authorized activities or
improvements to aquatic systems
typically will cause deviation from pre-
construction flow conditions. NWPs
authorize only those activities that will
have no more than 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 toy 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. Compliance with
state and local flow management
requirements, where these exist, is
usually sufficient to satisfy this General
Condition,
The General Condition is adopted as
proposed.
22. Adverse Effects from
Impoundments. There were no changes
proposed to this General Condition. One
commenter stated that impacts
associated with impoundments result in
more than minimal impacts, should be
evaluated as an individual permit, and
General Condition 22 should be deleted.
We disagree. Some small
impoundments do not result in more
than minimal impacts. However, where
they do result in more than minimal
adverse effects to the aquatic
environment, individually or
cumulatively, an individual permit will
be required.
The General Condition is adopted
without change.
23. Waterfowl Breeding Areas. There
were no changes proposed to this
General Condition. Two commenters
suggested this condition be amended to
prohibit discharges into breeding areas
for migratory waterfowl as well as other
migratory birds.
The Corps believes this would place
an unreasonable and overly restrictive
limitation on this NWP and that the
condition, as worded, provides
sufficient protection of aquatic
resources.
The General Condition is adopted
without change:
24. Removal of Temporary Fills. There
were no changes proposed to this
General Condition. One commenter
suggested this condition be amended to
require any temporary fills be removed
in their entirety and affected areas
returned to their preexisting elevations
immediately upon removal of the fill.
The condition as stated requires that
the affected area be returned to
preexisting elevation concurrent with
the removal of the fill. We do not agree
that this condition should require
immediate restoration in all cases. Corps
districts can add a time period for when
the restoration to preexisting elevations
should take place, when necessary.
The General Condition is adopted
without change.
25. Designated Critical Resource
Waters. There were no changes
proposed to this General Condition. One
commenter in favor of General
Condition 25 suggested it be amended to
include "source waters used for
drinking water or ground water
recharge" in the definition of "critical
resource waters". The commenter added
that there should be no provision for
discretionary authority for discharges of
dredged or fill material into designated
critical resource waters or wetlands
within the NWP program.
Concerns regarding impacts to sources
for drinking water and ground water
recharge are more appropriately
addressed through regional conditioning
of the NWPs or case-specific review of
PCNs for specific and identified waters.
Division engineers can regionally
condition the NWPs to prohibit or limit
their use in such high value waters.
District engineers should continue to
exercise discretionary authority and
require individual permits for activities
proposed in such valuable waters when
they will result in more than minimal
adverse effects on the aquatic
environment.
One commenter recommended that
the Corps exempt utility activities
within designated critical resource
waters affecting % acre or less from the
prohibition in General Condition 25
because utility projects have only
minimal impacts and should be allowed
under NWP 12 without requirement of
notification or consultation.
While utility line activities that
comply with NWP 12 normally do have
no more than minimal adverse effect on
the aquatic environment, individually
and cumulatively, we remain concerned
that this will often not be the case in
designated critical resource waters.
Therefore, unless there is evidence to
the contrary, we believe that the
restriction on NWP 12 should remain.
One commenter recommended the
title of General Condition 25 be changed
to "Critical Resource Waters". The
commenter also recommended that the
condition be changed to read
"Discharges within or affecting Critical
Resource Waters, including wetlands
adjacent to those waters, are not
authorized under the NWP program
except as specified in National Wild and
Scenic Rivers, provided that the activity
complies with General Condition 7".
The Corps does not agree with the
suggested title change. In order to apply
this condition to critical waters those
waters need to be designated so the
Corps and the public know where the
condition is applicable. The Corps
continues to believe that an activity can
occur in designated critical habitat if it
is compliance with the Endangered
Species Act.
The General Condition is adopted
without change.
26. Fills Within the 100-year
Floodplain.
The Corps proposed to delete the
"notification" requirement, to delete the
requirement to document that the
project meets Federal Emergency
Management Agency (FEMA) approved
requirements and to modify the
condition to require that all projects
authorized by the NWPs must comply
with any applicable FEMA approved
state or local floodplain management
requirements. In addition, we proposed
to remove the prohibitions in
paragraphs 26(a) and 26(b) for NWPs 12,
14, and 29, and the prohibition in 26(b)
for NWP 43. We also requested
comment on allowing projects to
proceed under this condition below the
headwaters where the project provides
additional flood storage.
Many commenters supported the
Corps proposal to remove the
notification requirement and the
requirement to document that the
project meets FEMA approved
requirements for fills within the 100-
year floodplain. One commenter stated
that this revision would reduce
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redundancy since they must comply
with E.0.11988 for all structures
associated with roadway construction
and routinely provide documentation to
federal and state agencies for review. A
few commenters stated that the Corps is
beyond its statutory authority and the
existing documentation requirements
have done nothing to affect compliance
with FEMA approved floodplain
management requirements. One
commenter recommended that the
Corps delete the notification
requirement for NWP 12.
The Corps continues to believe that
the notification should be removed from
this condition. We agree that this
change would reduce some paper work
redundancy at various levels of
government while retaining the
restrictions on floodplain development.
We agree that the notification
requirement for NWPs under this,
condition, including NWP 12, should be
removed.
Many commenters objected to the
change. One commenter stated that
documenting compliance with FEMA
approved requirements is very
important and strong motivation for
ensuring that projects meet local
floodplain regulations.
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 ALL permittees
comply with FEMA approved
requirements will be just as effective.
One commenter stated that the Corps
added additional wording without
providing proper notice in the preamble
of the notice and failed to provide the
legally required explanation for their
action. Specifically, the first sentence of
the current General Condition 26 states
that, "For purposes of this General
Condition, 100-year floodplains will be
identified through Federal Emergency
Management Agency's (FEMA) Flood
Insurance Rate Maps or FEMA-approved
local floodplain maps", and the first
sentence of proposed General Condition
26 states that, "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.
The word "existing" was addressed
and discussed in the preamble of the
March 9,2000, NWPs. The word
"existing" was placed in the proposed
NWPs to clarify questions raised by
Corps personnel and the public.
One commenter stated that the Corps
should not rely on often out-of-date and
inaccurate floodplain maps and
suggested that General Condition 26
should apply to all 100-year floodplains,
including those not mapped by FEMA.
One commenter requested clarification
where no FEMA floodplain maps exist.
One commenter suggested that where no
FEMA maps exist, permits should
require applicants to obtain a
determination from a registered
hydrologist that their project is not
within the 100-year floodplain.
To effectively implement the
requirements of this General Condition
and to be consistent with other Federal
programs, 100-year floodplains will be
identified through the latest Flood
Insurance Rate Maps (FIRMs). published
by FEMA or FEMA-approved local
floodplain maps. We believe that these
maps are adequate for the purposes of
this General Condition. Further,
utilizing existing FIRMs and FEMA-
approved local floodplain maps
eliminates the additional burdens on
local governments or landowners that
existed in the proposed condition. If
there are no FIRMs or FEMA-approved
local floodplain maps available for the
area where the proposed work is
located, then the requirements of this
General Condition do not apply. In such
'cases, the Corps will still consider the
impacts of proposed projects through
the PCN review process. In addition, we
believe that the prospective permittee
should not routinely be required to
incur the cost of having a licensed
professional engineer or hydrologist
certify whether or not the proposed
work is within a 100-year floodplain,
particularly considering the very small
scale of many permitted projects. Where
appropriate, the District Engineer can
require additional documentation on a
case-by-case basis.
Several commenters agreed with the
Corps proposal allowing DE's the
discretion to approve projects in the
floodplain below the headwaters where
the project could improve flood storage.
One commenter agreed provided the
project complies with FEMA approved
requirements. One commenter stated
that floodplains are the best sites for
creating stormwater management
facilities. One commenter agreed and
stated that these types of activities and
facilities authorized under NWP 43
increase floodplain capacity. One
commenter suggested that if NWP 43 is
not removed from part (b) of General
Condition 26, the DE should be
authorized to waive this restriction on a
project specific basis. One commenter
requested that the Corps define
increased flood storage. One commenter
agreed with the Corps observation that
some activities authorized by NWP 39,
40, and 42-44 provide additional flood
storage capacity and recommends that
such projects below the head waters
should be allowed to proceed even if
they result in permanent above grade
fills. .
The Corps has decided not to make
this change at this time. We need to
consider die specific language that
would be needed to effectively
implement this option. If we can
develop acceptable language, we will
consider proposing such a provision for
public notice and comment.
A dozen or so commenters objected to
the Corps proposal to remove NWP43
from part (b) of General Condition 26. A
couple of commenters stated that the
proposal could result in unacceptable
threats to life and property. One
commenter stated additional case-by-
case review will increase workload. The
commenter requested our rationale for
considering that NWP 43 projects such
as golf courses could provide additional
flood storage. One commenter cited that
other public interest factors should be
evaluated, which highlights the need for
completing a comprehensive PEIS. One
commenter stated that the change was
made without discussing it in the
preamble and with no explanation
supported by substantial evidence. This
commenter requested that the Corps
place NWP 43 back into part b of
General Condition 26. One commenter
stated that while providing additional
flood storage is generally beneficial,
there may be situations where such
actions could cause adverse hydraulic
or other impacts on the floodplain and
increase risk of damage to existing
floodplain properties. The commenter
suggests that the Corps allow discretion
on these projects only if the action is in
furtherance of a local stormwater or
watershed plan that has already
assessed the hydrologic and hydraulic
and other impacts of the action. One
commenter stated the prohibitions of
General Condition 26(a) and (b) do not
allow for NWP 43 to be authorized in a
floodplain but does allow projects to be
authorized in a floodway. The
commenter requested further
clarification and explanation.
We are keeping the prohibition on the
of NWP 43 in the floodplain below the
headwaters. However, allowing NWP 43
to be used for projects above the
headwaters but keeping them out of the
floodway would be counterproductive.
We believe that above the headwaters
the only feasible alternative will often
be to place them in the floodway.
General Condition requires that the,
project avoid and minimize impacts to
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2073
waters. For stormwater management
facilities this means keeping them out of
the waters and the floodway, if
practicable. Since the purpose of
stormwater management-facilities is to
minimize flooding impacts, when they
must be located in the floodway, there
is no value added to the aquatic
environment by requiring a more costly.
and lengthy individual permit process.
One commenter suggeste'd that parts
(a) and (b) of General Condition 26
should be removed because the
requirements in pact (c) that the
applicant must comply would be a
sufficient safeguard. A few ;commenters
stated that General Condition 26 should
be removed because it is a duplication
of activities regulated by local \
floodplain administrators. One
commenter stated that the 100-year
floodplain restrictions have increased
the time required for reviewing small
projects and leave the Corpjs less time
and resources to focus on projects that
may have significant impacts.
We continue to believe that the NWPs
listed in General Condition 26(a) and (b)
need to be restricted in the flood plain.
This provides an added measure of
protection of floodplains beyond that in
paragraph 26(c). There has been some
increase in workload due to the general
condition. We believe that the adopted
modifications to this General Condition
will reduce that workload somewhat,
which will allow the Corps to focus
those resources on areas where the
Corps can provide added protection to
the aquatic environment.
One commenter stated that General
. Condition 26 is unnecessary and
duplicative of existing FEMA
requirements and would like the Corps
to provide any data to show any
correlation between wetlands loss and
flooding. One commenter suggested that
the Corps delete General Condition 26 :
for all permits and retain the flexibility
to authorize all projects resulting in
minimal adverse effects to proceed
under NWPs, regardless of where those
waters are located within the landscape.
The same commenter recqmmended
that any project located within a
floodplain that meets FEMA
requirements and the minimal impact
test should be allowed to proceed under
a NWP. One .commenter stated that
General Condition 26 is redundant and
believes that the ban on permanent fills
should not extend to all waters,
specifically ephemeral streams above
headwaters. \ '.
We agree that we are using the FEMA
requirements that are applied to flood
insurance programs for projects that
occur in the flood plain. To this extent
General Condition 26 is somewhat
duplicative with that program.
However, we believe that General
Condition 26 plays an important role in
reinforcing the FEMA program to
minimize impacts to flood plains.
Several commenters objected to the
changes to General Condition 26 and
, some commenters requested that the
Corps retain General Condition 26
without any changes. A couple of
commenters stated that the Corps must
consider other aspects of flood plains
such as water quality, ground water
recharge, fish, wildlife, plant resources,
and open space. Several commenters
objected to development within 100-
year flood plain. A couple of
commenters objected to development
within the floodplain. One commenter
stated that the proposal would no longer
discourage above grade fills with the
floodplain. One commenter suggested
that NWPs should not be used in
counties designated as federal flood
hazard areas at least once in the past 10
years. One commenter objected to the
use of NWP 39,40, 42, 43, and 44
within the 100-year floodplain. One
commenter suggested that NWPs located
within a floodplain should be required
. to demonstrate that the project is
essential arid has no alternative, the
public should be able to comment on
these types of projects, and they should
be reviewed as an individual permit.
One commenter stated that FEMA
approved requirements are inadequate
in many locations. A hand full of
commenters suggested that the Corps
should not allow the use of expedited
permits for any filling activities in the
entire 100-year floodplain.
We are very concerned with the loss
of life and property resulting from
unwise development in the floodplain.
The Corps has recently advocated the
strengthening of floodplain policy and
the use of non-structural measures to
reduce flood damages. We believe that
the changes to the NWP program
published today and two years ago will .
play an important role in reducing
damages associated with development
in the floodplain. Specifically, we are
now requiring that ALL projects comply
with FEMA approved state and local
floodplain management requirements. '
We will monitor carefully the
effectiveness of the new floodplain
condition to ensure that it has the
intended impact on reducing floodplain
development.
A couple of commenters' agreed with
the Corps proposal to remove the
prohibitions of General Condition 26 (a)
and (b) from NWP 12,14, and 29. One
commenter suggested that part (b) of
General Condition 26 should be
changed to allow the use of NWP 39, 40,
42, or 43 with a PCN requirement. A few
commenters suggested that the Corps
retain prohibitions of General Condition
26 (a) and (b) for NWPs 12,14, 29. One
commenter objected to removing the '
prohibitions because it will increase
damage and destruction of aquatic
habitat and should not be permitted. A
few commenters agreed with the Corps
proposal to remove the prohibitions of
General Condition 26 (a) and (b) from
NWP 12 and 14. One commenter
recommended that the prohibitions of
General Condition 26 (a) and (b) should
be retained for NWP 29 because local
FEMA authorizes can come under
tremendous pressure to stretch the
regulations for certain projects/One
commenter agreed with the Corps
proposal to remove the prohibitions of
General Condition 26 (a) and (b) from
NWP 12 but wants to keep the
prohibitions for NWP 14 & 29. The
commenter stated that homes and other
structures create a potential for ' '
increased downstream flooding due to
floodplain storage capacity and
transmission line projects occupy very
little volume of the 100-year floodplain
and would have only a minimal effect
on floodplain storage capacity. One
commenter suggested reducing the PCN
requirements and raising the acreage
thresholds for NWP 12. Numerous
commenters objected to the removal of
the prohibitions of General Condition
26(a) and 26(b) from NWP 29. A couple
of commenters objected because it could
result in unacceptable threats to life and
property. A couple of commenters
objected because it will have long-term
negative consequences, including the
potential to heighten downstream
flooding. One commenter stated that the
removal will make it easier to build
homes and developments in
floodplains, will place families at
greater risk, and cost taxpayers for the
inevitable cycle of flooding and
rebuilding. A couple of commenters
suggested that NWP 12 and 29, in light
of the requirements of General
Condition 21, continue to be subject to
all of the limitations in General
Condition 26. Given that these permits
are subject to General Condition 21, the
commenters stated concerns that
improper use of these permits could
adversely impact flooding, because
linear projects are likely to obstruct
flood flows while single-family housing
can result in cumulative losses of flood
storage. Both commenters stated that if
the Corps removes the prohibition of
General Condition 26(a) and (b) from
NWP 12 and 29, the Corps should
closely monitor activities authorized
under these permits over time to ensure
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Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
that cumulative impacts on flooding are
in fact minimal.
The Corps believes that it is
appropriate to remove NWPs 12,14 and
29 from the prohibition below
headwaters and retain the prohibition
for NWPs 39, 40, 42, 43,"and 44. The
permanent above grade fill authorized
by these NWPs are small and do not
occur very often especially in the same
watershed. Furthermore, these activities
must comply with the applicable FEMA
approved requirements. We believe that
activities authorized by these NWPs that
are in full compliance with FEMA
approved requirements will have no
more than minimal impacts on the flood
plain.
The General Condition is adopted as
proposed.
27. Construct/on Period.
We proposed 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 will allow the
Corps to establish project completion
dates beyond the expiration of the
NWPs.
Several commenters stated that they
are in favor of this new condition. Some
commenters suggested that this
condition be applicable to all permit
authorizations that are currently in
effect including activities, which were
authorized under NWP 26 and are still
under the grandfather rule, and the
District Engineer should be urged to;
authorize extensions providing
conditions have not changed
substantially. One commenter in favor
of General Condition 27 requested that
the Corps revise the condition to have
a definite extension period and remove
the language "reasonable period". One
commenter in favor of General
Condition 27 suggested that it be
amended specifically to include an
extension of the completion date for
multi-phase linear transportation
projects that have been verified and the
extension request should be submitted
30 days prior to the previously
approved completion date. One
commenter suggested that the life of the
permit be extended instead of adopting
General Condition 27. One commenter
stated that General Condition 27 will
reduce protection for listed species and
critical habitat. Two commenters
suggested that there is no need to extend
an NWP beyond the current expiration
date because the permittee is offered
sufficient time within the current time
parameters to complete an authorized
project. Two commenters stated that
General Condition 27 violates the terms
and conditions of the Clean Water Act
and this condition would establish
National policy on what is considered a
reasonable timeframe to complete a
minimal impact activity. One
commenter recommended that the
permit be modified to change the
extension date of those activities not
verified by the Corps from 12 months to
3 months and that all future projects be ,
verified by the Corps.
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. We
believe that the district office that is
reviewing the project is best able to
determine a reasonable time to complete
the work. Projects will vary in the
amount of time it takes to complete the
activity. We believe that general
.condition 11 will ensure that NWP
authorized activities will comply with
the Endangered Species Act. The Crops
is not proposing ,to change the
completion period for unverified NWP
activities.
The General Condition is adopted as
proposed.
Definitions
There were no comments on the
definitions not listed below. There were
no changes proposed to those
definitions. Those definitions are
adopted without change.
Floodway. There were no changes
proposed to this definition. One
commenter believes that the definition
of flood-ways is very broad.
The Corps is using the definition of
flood way as it is determined by the
Federal Emergency Management Agency
for the purposes of the national flood
insurance program. This is the standard
that is most used by Federal agencies for
compliance with Executive Order
11988, Floodplain Management. It is the
definition of the term that is used in
general condition 26 of the NWPs. The
definition is adopted without change.
Independent Utility. There were no
changes proposed to this definition. One
commenter said that the definition of
the term "independent utility" should
exclude highway projects, because a
single project within the limits of the
particular logical termini may need to
be reviewed and authorized under the
same NWP multiple times.
We do not agree that the definition of
this term should exclude highway
projects. The Corps issues permits for a
highway to cross a waterbody not for the
highway itself. Normally the separate
crossings will have independent utility.
Only in rare circumstances would a
highway project be considered a single
and complete project as discussed in
Corps regulations at 33 CFR 330. The
terms and conditions of the NWPs, as
well as the PCN process and the ability
of district engineers to exercise
discretionary authority, will ensure that
highway projects authorized by NWPs,
such as NWP 14, result in minimal
adverse effects on the aquatic
environment. The definition is adopted
without change.
Loss of waters of the US. The Corps
proposed to clarify this definition,
consistent with the explanation
provided in the preamble to the March
9, 2000, NWPs Federal Register notice,
which reflects the current practice for
measuring the acreage and linear foot
impacts for determining compliance
with the threshold limits of the NWPs.
In other words, this clarification does
not change the current application of
this term.
One commenter noted that the Corps
proposed to change the definition of
"loss of waters of the US" without
discussing the proposed change in
preamble of the August 9, 2001, Federal
Register notice. The commenter
suggested that the definition remain as
defined in the March 9, 2000, Federal'
Register notice that announced the
issuance of new and modified NWPs to
replace NWP 26. The definition in the
March 9, 2000, notice stated that "* * *
the loss of stream bed includes the
linear feet of stream bed that is filled or
excavated." The commenter suggested
explicitly including perennial,
intermittent, and ephemeral reaches in
this definition. One commenter stated
that the proposed change to limit the
definition of "loss of waters of the US"
to perennial or intermittent stream
could weaken protection for ephemeral
streams.
The Corps believes that it is necessary
to clarify, that for determining the
acreage and linear thresholds for the
NWPs, ephemeral waters and streams
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2075
are not included in the measurement.
This was previously explained on page
12881 of the March 9, 2000, preamble of
the NWPs, but not included in the
permit language. We now believe that it
is important to include this language in
the formal definition to avoid the
confusion that was created by having
this information in a Preanible
discussion only and not in the
definition itself. However, the Corps
had proposed modifying language that
we now believe did not fully and clearly
address the issue. Therefore we are
retaining the current language of this
definition, but adding a new sentence at
the end of the definition. The new
sentence will clearly state that for
measuring the threshold limitation only
will we not include impacts to
ephemeral waters. As with the proposed
change, the new sentence will not
change the current application of this
term.
Note that in excluding ephemeral
streams from the definition ,of "Loss of
Waters of the US" for the purposes of
determining compliance with NWP
acreage and linear foot limitations, we
are not suggesting that ephemeral
streams are not jurisdictional waters
under the Clean Water Act. |
One commenter requested
clarification concerning the, placement
of box culverts and the definition of
"loss of the water of the US?'. This
commenter said that if the placement of
a culvert in waters of the US does not
change the bottom elevation, then the
activity should not be considered to'
result in a loss of waters of the US.
The placement of a culvert in waters
of the United States would be
considered a loss of waters of the United
States, even if the activity would not
result in a change in the bottom
elevation. The definition ofthe term
"loss of waters of the US" includes
activities that change the use of the,
waterbody. The placement of a culvert
in a stream or other water of the United
States changes the use of that
waterbody, and therefore the area
changed by the installation of the
culvert would be considered when
determining whether the proposed work
exceeded the acreage limit of an NWP.
The definition is adopted with the
change discussed above.
Minimal effects. The Corps did not
propose to define this term. Several
commenters said that the term "minimal
effects" should be defined. One
commenter requested that the Corps
develop an evaluation criteria for
determining when an activity results in
more than minimal impacts.
We maintain our position that the
term "minimal effects", as used in the .
context of the NWP program, cannot be
simply defined. Aquatic resource
functions and values vary considerably
across the country, and the minimal
adverse effects criterion for general
permit must be subjectively applied by
district engineers. Site-specific factors,
such as the quality of waters that may
be impacted by the proposed work, the
functions and values of those waters,
the geographic setting, and other factors
must be considered when determining
whether a particular activity results in
minimal adverse effects on the aquatic
environment. Further, in order to adopt
such a term the Corps would have to
publish a proposed definition for public
notice and comment. A definition of
this term is not being adopted.
Open water. There were no changes
proposed to this definition. One
commenter stated that the definition of
the term "open water" should be
refined. This commenter said that
sparsely vegetated areas of obligate
emergent vegetation still meet the
definition of a wetland and that
vegetated shallows are special aquatic
sites, such, as seagrass beds. Sparsely
vegetated waters inhabited by emergent
vegetation may be identified as
wetlands, provided the area meets the
criteria required by the 1987 Corps of
Engineers Wetlands Delineation Manual
(Technical Report Y-87-1) and
associated guidance. Vegetated waters
inhabited by non-emergent vegetation,
such as beds of submersed aquatic
vegetation often found in estuaries,
lakes, and ponds, are considered open
waters for the purpose of the NWP
program.
The definition is adopted without
change.
Mechanized Land Clearing. The Corps
did not propose to define this term. One
commenter stated that the term
"mechanized land clearing" is not
defined in the "Definitions'" section of
the NWPs and recommends that the
Corps adds a definition for this term.
We do not agree that it is necessary
to include a definition of the term
"mechanized land clearing" in the
NWPs. Matters related to mechanized
landclearing have been most recently
addressed in the changes to 33 CFR
323.2 that were published in the January
17, 2001, issue of the Federal Register
(66 FR 4550). A definition of this term
is not being adopted.
Stream Definitions. There were no
changes proposed to these definitions.
One commenter said that the definitions
of ephemeral and intermittent streams
do not address streams that may flow for
longer periods due to snowmelt,
artificial discharges, or other water
sources beside groundwater and
precipitation. This commenter also
suggested that artificial water discharges
should not be used for the definitions of
ephemeral and intermittent streams and
if a water course is naturally ephemeral
and a water treatment plant outfall is
constructed, the watercourse should
continue to be defined as ephemeral for
Section 404 purposes.
When determining whether a
particular stream segment is perennial,
intermittent, or ephemeral, district
engineers should consider the source of
hydrology and the normal circumstance
of that hydrology. They will make these
determinations on a case-by-case basis.
We believe that these definitions are
sufficient for the Corps Regulatory
Program. The stream definitions are
adopted without change.
Executive Order 13212Energy-related
Projects Issues
One commenter indicated that NWPs
have already been designed to expedite
permit processing and any new energy
related projects (i.e. drilling oil in the
Arctic National Wildlife Refuge,
construction of new nuclear power
plants, or electric power generation
dams) not covered by existing NWPs
should receive full consideration under
the National Environmental Policy Act
(Act) and not be authorized by NWPs.
One commenter said that states have
provisions similar to Executive Order
13212 and this commenter believes that
the current coordination process and the
expedited review process provided by
the NWPs are sufficient. One
commenter asserted that the expiration
of NWP 26 reduced the ability of the
Corps' to efficiently authorize energy-
related projects. This commenter
suggested that other NWPs be amended
to expedite energy-related projects or
revisit the development of a regional
permit for such activities.
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 Executive
Order directs all agencies to take
appropriate actions, to the extent
consistent with applicable law, to
expedite projects that will increase
energy production, transmission, or
conservation, while maintaining
protection of the environment. We
believe that the NWP program provides
an opportunity to expeditiously
authorize energy-related activities that
have no more than minimal adverse
effects on the aquatic environment,
individually and cumulatively. Energy
related projects that have more than
minimal individual and cumulative
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Federal Register /Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
adverse effects on the aquatic
environment cannot be authorized by
NWPs and will be expeditiously
reviewed under the individual permit
process.
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 no
more than minimal adverse effects with
little, if any, delay or paperwork. NWPs
allow smaller, repetitive, low impact
projects with no more than minimal
adverse 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 Corps is adopting changes
to the Nationwide Permits that 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.
Regional Conditioning of Nationwide
Permits
Concurrent with this Federal Register
notice, District Engineers are issuing
local public notices. In addition to the
changes to some NWPs and NWP
conditions required by the Chief of
Engineers, the Division and District
Engineers may propose regional
conditions or propose revocation of
NWP authorization for all, some, or
portions of the NWPs. Regional
conditions may also be required by state
Section 401 water quality certification
or for state coastal zone consistency.
District engineers will announce
regional conditions or revocations by
issuing local public notices. Information
on regional conditions and revocation
can be obtained from the appropriate
District Engineer, as indicated below.
Furthermore, this and additional
information can be obtained on the
internet at http://wwwMsace.army.mil/
where.htmlitState by clicking on the
appropriate District office.
Alabama
Mobllo 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 532711, Los
Angeles, CA 90053-2325
Arkansas
Little Rock District Engineer, ATTN:
CESWL-PR-R, P.O. Box 867, Little Rock,
AR 72203-0867
California
Sacramento District Engineer, ATTN:
CESPK-CO-R. 1325 J Street, Sacramento,
CA 95814-2922
Colorado
Albuquerque District Engineer, ATTN:
CESPA-OD-R, 4101 Jefferson Plaza NE,
Albuquerque, NM 87109-3435
Connecticut
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
Delaware '
Philadelphia District Engineer, ATTN:
CENAP-OP-R, Wannamaker Building, 100
Penn Square East Philadelphia, PA 19107-
3390
Florida
Jacksonville District Engineer, ATTN:
CESAJ-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-
EC-R,,Building 230, Fort Shafter,
Honolulu, HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN:
CENWW-OD-RF, 210 N. Third Avenue,
Walla Walla, WA 99362-1876
niinois
Rock Island District Engineer, ATTN:
CEMVR-QD-P, P.O. Box 2004, Rock
Island, IL 61204-2004
Indiana
Louisville District Engineer, ATTN: CELRL-
OP-F, P.O. Box 59, Louisville, KY 40201-
0059
Iowa
Rock Island District Engineer, ATTN:
CEMVR-OD-P, P.O. Box 2004, Rock
Island, IL 61204-2004
Kansas
Kansas City District Engineer, ATTN:
CENWK-OD-R, 700 Federal Building, 601
E. 12th Street, Kansas City, MO 64106-
2896
Kentucky
Louisville District Engineer, ATTN: CELRL-
OP-F, P.O. Box 59, Louisville, KY 40201-
0059
Louisiana ' ,
New Orleans District Engineer, ATTN:
CEMVN-OD-S, P.O. Box 60267, New
Orleans, LA 70160-0267
Maine
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
Maryland
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Massachusetts
New England District Engineer, ATTN:
CENAE-R. 696 Virginia Road, Concord,
MA 01742-2751
Michigan
Detroit District Engineer, ATTN: CELRE-RG,
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-R, 700 Federal Building, 601
E. 12th Street, Kansas City, MO 64106-
2896
Montana
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, NE
68102-1618
Nebraska
Omaha District Engineer, ATTN: CENWO-
OP-R, i06 South 15th Street, Omaha, NE
68102-1618
Nevada
Sacramento District Engineer, ATTN:
CESPK-CO-R, 1325 J Street, Sacramento,
CA 95814-2922
New Hampshire
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
New Jersey
Philadelphia District Engineer, ATTN:
CENAP-OP-R, Wannamaker Building, 100
Penn Square East, Philadelphia, PA 19107-
3390
New Mexico
Albuquerque District Engineer, ATTN:
CESPA-OD-R, 4101 Jefferson Plaza NE,
Albuquerque, NM 87109-3435
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2077
New York ,
New York District Engineer, ATTN: CENAN-
OP-R, 26 Federal Plaza, New York, NY
10278-0090
North Carolina
Wilmington District Engineer, ATTN:
CESAW-RG, P.O. Box 1890, Wilmington, ,
NC 28402-1890 [
North Dakota
Omaha District Engineer, ATTN: CENWO-
OP-R, 106 South 15th Street, Omaha, ME
68102-1618
Ohio
Huntington District Engineer, ATTN:
CELRH-QR-F, 502 8th Street, Huntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWTPE-
R, 1645 S. 101st East Ave, Tulsa, OK
74128-4609
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-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, 106 South 15th Street, Omaha, ME
68102-1618
Tennessee
Nashville District Engineer, ATTN: CELRN-
OP-F, P.O. Box 1070, Nashville, TN
37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-
PER-R, P.O. Box 17300, Ft. Worth, TX
76102-0300 ,
Utah
Sacramento District Engineer, ATTN:
CESPK-CO-R, 1325 J Street, CA 95814-
2922
Vermont .
New England District Engineer, ATTN:
CENAE-R, 696 Virginia Road, Concord,
MA 01742-2751
Virginia
Norfolk District Engineer, ATTN: CENAO-
OP-R, 803 Front Street, Norfolk, VA
23510-1096 .i '
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, 106 South 15th Street, Omaha, ME
68102-1618
District of Columbia
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Pacific Territories (American Samoa, Guam,
& Commonwealth of the Northern Mariana
Islands)
Honolulu District Engineer, ATTN: CEPOH-
EC-R, Building 230, Fort Shafter,
Honolulu, HI 96858-5440
Puerto Rico &.Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970, Jacksonville,
FL 32202-4412
Dated: January 4, 2002.
Approved:
Robert H. Griffin,
Brigadier 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. Hydropower 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. Stormwater 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
17. Shellfish Beds
18. Suitable Material
19. Mitigation
20. Spawning Areas
21. Management of Water Flows
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
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Federal Register/Vol. 67, No. 10/Tuesday, January 15, 2002/Notices
Single and Complete Project
Stormwator Management
Stormwaler Management Facilities
Stream Bed
Stream Channelization
Tidal Wetland
Vegetated Buffer
Vegetated Shallows
Waterbody
B. Nationwide Permits
1. Aids to Navigation. The placement
of aids to navigation and Regulatory
markers which are approved by and
installed in accordance with the
requirements of the U.S. Coast Guard
(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
tho 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 th'e 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.
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
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 impoundments 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)
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2079
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 riot 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
the 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 the 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. I
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(fj). Such structures will not be
placed in established danger zones or
restricted areas as designated in 33 CFR
part 334: nor will such structures be
permitted in EPA or Corps designated
dredged material disposal areas.
(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
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
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Federal Register/Vol. 67, No. 10 /Tuesday, January 15, 2002 /Notices
elevations (e.g., at grade corduroy roads
or geotextile/gravel roads). Access roads
constructed above preconstructioii
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) through (iv) may not
exceed a total of Vi-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 permaneritly
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 Vio-
acre of waters of the US; or
(fj 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 yardiper 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 the 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 than 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.
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
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2081
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 jpart 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 farm roads, forest roads, or temporary
roads for moving mining equipment may be
eligible 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 thelbridge
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 perinittee
notifies the District Engineer in
accordance with the "Notification"
General Condition; or (b) hydropower
projects for which the FERC has granted
arl 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 Vic-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,
of 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 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 in 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 NVVP 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
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. (Sections
10 and 404)
22. Removal of Vessels. Temporary
structures or minor discharges of
dredged or fill material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
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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 seq.),
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(gHl) 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 Pub. L. 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),
the National Marine Fisheries Service,
the National Ocean Service, or
voluntarywetland 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, to the extent that a Corps
permit is required, 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; the construction of oyster ,
habitat over unvegetated bottom in tidal
waters; activities needed to reestablish
vegetation, including plowing or discing
for seed bed preparation and the
planting of appropriate wetland species;
mechanized land clearing to remove
non-native invasive, exotic or nusiance
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
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
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2083
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 iii"
the original agreement or permit, and
the determination of return to prior
conditions will be made byithe 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 in 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 authorize
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 kind 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 V-s-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."
(Sections 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,
state-owned or managed property, and
local government agency-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 the
extent that these have been included in
the maintenance baseline. All dredged
material must be placed in an upland
site or an authorized disposal site in
waters of the 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)).
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
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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 that has been
abandoned. A flood control facility will
be considered abandoned if it has
operated at a significantly reduced
capacity without needed maintenance
being accomplished in a timely manner.
Mitigation: The District Engineer will
determine any required mitigation one-
time only for impacts associated with
maintenance work at the same time that
the maintenance baseline is approved.
Such one-time mitigation will be
required when necessary to ensure that
adverse environmental impacts are no
more than minimal, both individually
and cumulatively. Such mitigation will
only be required once for any specific
reach of a flood control project.
However, if one-time mitigation is
required for impacts associated with
maintenance activities, the- District
Engineer will not delay needed
maintenance, provided the District
Engineer and the permittee establish a
schedule for identification, approval,
development, construction and
completion of any such required
mitigation. Once the one-time
mitigation described above has been
completed, or a determination made
that mitigation is not required, no
further mitigation will be required for
maintenance activities within the
maintenance baseline. In determining
appropriate mitigation, the District
Engineer will give special consideration
to natural water courses that have been
included in the maintenance baseline
and require compensatory mitigation
and/or 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; or
(in) The terms of a final court
decision, consent decree, settlement
agreement, or non-judicial settlement
agreement resulting from a natural
resource damage claim brought by a
trustee or trustees for natural resources
(as defined by the National Contingency
Plan at 40 CFR subpart G) under section
311 of the Clean Water Act (CWA),
.section 107 of the Comprehensive
Environmental Response, Compensation
and Liability Act (CERCLA or
Superfund), section 312 of the National
Marine Sanctuaries Act (NMSA), section
1002 of the Oil Pollution Act of 1990
(OPA), or the Park System Resource
Protection Act at 16 U.S.C. '19jj, to the
extent that a Corps permit is required.
For either (i), (ii) or (iii) 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
that it will not cause more than minimal
adverse effects on aquatic resources.
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2085
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 U.Sl (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
U.S., 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
loss of wetland acreage. This NWP does
not authorize any discharge of dredged
or fill material related to other cranberry
production activities such as
warehouses, processing facilities, or
parking areas. For the purppses 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, and
boat slips to previously authorized
depths or controlling depths for ingress/ ,
egress, whichever is less, 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
U.S. 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
U.S. (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); or
b. The USFS under its Burned-Area
Emergency Rehabilitation Handbook
(FSH 509.13); or
c. 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 U.S., 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 arid 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 Va-acre of non-tidal
waters of the U.S., 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 for intermittent
stream beds 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:
(1) The discharge causes the loss of
greater than Vic-acre of non-tidal waters
of the US, excluding non-tidal wetlands
adjacent to tidal waters; or
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(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
(3) The discharge causes lie loss of
greater than 300 linear feet of
intermittent stream bed. In such case, to
ba 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 hi 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
slto. 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 compeiisatory 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 hi
conjunction with any other NWP, any
combined total permanent loss of waters
of the US exceeding Vio-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: (l) 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., Vn-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.,
Vi2-acre of emergent wetlands created
on-site);
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
of 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 Va-acre,
see General Condition 15).
Subdivisions: For residential
subdivisions, the aggregate total loss of
waters of US authorized by NWP 39 can
not exceed Vi-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 by 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. Vs-acre of
emergent wetland on a 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 hot 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 V2-acre of non-tidal
wetlands on a farm tract;
(2) The permittee must notify the
District Engineer hi accordance with
General Condition 13, if the discharge
results in the loss of greater than Vio-
acre of non-tidal wetlands;
(3) The notification must include a
delineation of affected wetlands; and
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2087
(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
V2-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, for drainage
ditches constructed in intermittent non-
tidal streams, 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
constructed in intermittent non-tidal
streams, 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 ofithis 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 Va-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. In general, this
NWP does not apply to reshaping
drainage ditches constructed in
uplands, since these areas are generally
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 the centerline of the
reshaped drainage ditch must be
approximately the same as the location
of the centerline of the original drainage
ditch. This NWP does not authorize
stream channelization or stream
relocation projects. (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 V2-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 for intermittent
stream beds 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 of intermittent stream beds. 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. For discharges causing the loss of
greater than Vio-acre of non-tidal waters
of the US, the permittee notifies the
District Engineer in accordance with
General Condition 13;
e. For discharges in special aquatic
sites, including wetlands, thie
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.
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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
substantially change preconstruction
grades or deviate from natural landscape
contours. For the purpose of this permit,
tho 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
not 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 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 for intermittent
stream beds 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
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);
f. 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
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2089
US at the project site to the maximum
extent practicable, and the notification
must include a written statement
detailing compliance with this
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 waterquality 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 streanrwhere 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
Vi-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:
\. 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. Permittees are
encouraged to perform work within
waters of the United States during
periods of low-flow or no-flow.
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 Bivers. No activity
may occur in a component of the
National Wild and Scenic River System;
or iri 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)).
(b) For NWPs 12,14,17,18, 32, 39,
40, 42, 43, and 44, where the state or
tribal 401 certification (either
generically 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
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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
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. As a result of formal
or Informal consultation with the FWS
or NMFS the District Engineer may add
species-specific regional endangered
species conditions to the NWPs.
(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 die 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 G. The
prospective permittee must notify the
District Engineer if the authorized
activity may affect any historic
properties listed, determined tp 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)). 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 to make the PCN complete ,
only once. However, if the prospective
permittee does not provide all of the
requested information, then the District
Engineer will notify the prospective
permittee that the 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.);
(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
(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.
To be authorized by this NWP, the
District Engineer must determine mat
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 riotify the
project sponsor of this determination in
writing;
(8) 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;
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2091
(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 thatjthe 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 V-t-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 VWcre in size,
formal wetland delineation must be
prepared in accordance with the current
method required by the Corps. (See
paragraph 13{f)); ;
(ivj 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. For
discharges that cause the loss of greater
than 300 linear feet of an intermittent
stream bed, 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;
(14) For NWP 40 (Agricultural
Activities), the PCN must include a
compensatory mitigation proposal to
offset losses of Waters of the US. This
NWP does not authorize the relocation
of greater than 300 linear-feet of existing
serviceable drainage ditches constructed
in non-tidal streams unless, for drainage
ditches constructed in intermittent non-
tidal streams, 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;
(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. For discharges that
cause the loss of greater than 300 linear
feet of an intermittent stream bed, to be
authorized, the District Engineer must
determine that the activity complies
1 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;
(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; and
(18) For activities that may affect
historic properties listed hi, 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 Notifications: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 in 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 die 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
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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 Vz-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
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
(V-j-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 Va-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).
(b) Mitigation in all its forms
(avoiding, minimizing, rectifying,
reducing or compensating) will be
required to the extent necessary to
ensure that the adverse effects to the
aquatic environment ate 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 as compensatory mitigation,
with preservation used only in
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, Vj-acre of
wetlands cannot be created to change a
%-acre loss of wetlands to a Vz-acre loss
associated with NWP 39 verification.
However, V2-acre of created wetlands
can be used to reduce the impacts of a
Va-acre loss of wetlands to the minimum
impact level in order to meet the
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minimal impact requirement associated
withNWPs.
(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 riot 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 in 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 or reduce
the requirement to provide wetland
compensatory mitigation for wetland
impacts.
(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
to require detailed plans beisubmitted
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
roust 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, arid 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 of 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 GeneralCondition 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
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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
the Corps.
For projects that have been verified by
the Corps, an extension of a Corps
approved completion date maybe
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
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 a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed includes the
linear feet of stream bed that is filled or
excavated. Waters of the US temporarily
filled, flooded, excavated, or drained,
but restored to preconstruction contours
and elevations after construction, are
not included in the measurement of loss
of waters of the US. Impacts to
ephemeral waters are only not included
in the acreage or linear foot
measurements of loss of waters of the
US or loss of stream bed, for the purpose
of determining compliance with the
threshold limits of the NWPs.
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 either non-emergent,
sparse, or absent. Vegetated shallows are
considered to be open waters. The term
"open water" includes rivers, streams,
lakes, and ponds. For the purposes of
the NWPs, this term does not include
ephemeral waters.
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
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2095
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 and 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 bf 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
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-
section 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. 02-539 Filed 1-14-02; 8:45 am]
BILLING CODE 3710-92-P
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