Friday
December 13, 1996
Part VII
Department of
Defense
Department of the Army
Corps of Engineers
Final Notice of Issuance, Reissuance, and
Modification of Nationwide Permits;
Notice
"65873
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Federal Register / Vol. 61. No. 241 / Frffisy, December 13, 1996 / Notices
DEPARTMENT OF DEFENSE
Department of the Army
Corps of Engineers
Final Notice of Issuance, Reissuance,
and Modification of Nationwide
Permits
AGENCY: Army Corps of Engineers, DOD.
ACTION: Final Notification.
SUMMARY: The Corps of Engineers is
reissuing the existing nationwide
permits (NWP) and conditions, some
with modifications, and issuing two
new NWPs. As with all general permits,
NVVPs include specific project
limitations which ensure that adverse
effects will be no more than minimal
and that the aquatic environment will
be protected. At the same time, if a
permit applicant can design a project in
a way that meets the limitations of the
NWP, the Corps will provide an
expedited review and decision for the
project. General permits, including
NWPs, are an essential part of the Corps
regulatory program, and provide us with
the method we use to authorize 80% of
the activities we regulate. An effective
NWP program is essential to
administration of the Corps regulatory
program. The Corps, however, is
increasingly aware of the concerns
regarding the level of adverse effects
being authorized by NWPs, particularly
NWP 26. As a result, we have taken a
critical look at the NWP program to
better ensure that projects that truly
have minimal impacts will continue to
be authorized, while ensuring that only
minimal individual and cumulative
adverse effects will result from the
Corps authorizing projects under the
program. For example, we have made .
substantial changes to NWP 26, with an
ultimate approach of more clearly
defining the activities regulated through
activity-specific replacement general
permits. The interim changes to NWP 26
we have made will greatly increase
environmental protection while
increasing the review time for a
relatively small percentage of the total
number of activities authorized each
year. We have also become increasingly
aware of the concerns that NWPs,
particularly NWP 26, need to be
modified to reflect regional differences
in aquatic ecosystem functions and
values and to more effectively reflect the
desire of the states to develop
partnerships to protect the aquatic
environment. We, therefore, have
directed our districts to carefully review
all of the NWPs, particularly NWP 26,
to revoke applicable NWPs in high
value aquatic ecosystems, and to add
regional conditions to limit the .
applicability of the NWPs to ensure that
no more than minimal adverse effects
occur in each district.; We are also
directing the districts!to work with the
states to develop mutually agreeable
conditions that will result in a greater
level of state Section £dl water quality
certifications being issued for the NWPs.
We are directing our districts to develop
local procedures with their counterparts
in the JJ.S. Fish and Wildlife Service
and National-Marine Fisheries Service
which will ensure that the Corps bases
its "affect" and "jeopardy" decisions on
the best available information. We are
also initiating formal programmatic
consultation under section 7 of the
Endangered Species Act regarding the
procedures associated with
administering the NWP program. We
believe that the changes described
above, along with many others we have
included in this reissuance of the
NWPs, will substantially increase
protection of the aquatic environment,
ensure that no more than minimal
adverse effects will occur, and maintain
.the regulatory flexibility necessary to
administer a reasonable regulatory
program.
EFFECTIVE DATE: February 11, 1997.
ADDRESS: Information can be obtained
by writing to: Office of the Chief of
Engineers, ATTN: CECW-OR, 20
Massachusetts Avenup NW.,
Washington, DC 20314-1000.
FOR FURTHER INFORMATION: Contact Mr.
Sam Collinson or Mr. John Studt, at
(202) 761-0199 or access the U.S. Army
Corps of Engineers Regulatory Home
Page at: http//:wetland.usace.mil/
SUPPLEMENTARY INFORMATION:
Background ' !
The White House Office on
Environmental Policyannounced the
President's Wetlands Plan on August 24,
1993. The plan sets faith a
comprehensive package of
improvements to Federal wetlands
protection programs. A major goal of the
plan is that the programs be fair,
flexible, and effective, To achieve this
goal, the Corps regulatory program must
continue to provide effective protection
for wetlands and other aquatic
resources, while conveying to the public
a clear understanding of regulatory
requirements. In its implementation, the
regulatory program must be
administratively efficient, flexible yet
predictable, and avoid unnecessary
impacts to private property, the
regulated public, and the environment.
There were 37 existing nationwide
permits. Thirty-six of the NWPs were
published in the November 22, 1991,
Federal Register (FR) at 33 CFR part
330, appendix A (56 FR 59110). They '
became effective on January 21,1992,
and expire on January 21, 1997. One
additional NWP, the Single-Family .
Housing NWP (NWP 29), was proposed
in the Federal Register on July 27, 1995,
(60 FR 38650) and became effective on
September 25, 1995. NWP 29 would
expire on S'eptember"25, 2000. ,
In the preamble of the Final Rule at
33 CFR part 330, as published in the
Federal Register (56 FR 59110) on
November 22, 1991, we indicated that
upon expiration of the existing NWPs,
we would issue the NWPs separately
from the regulations governing their use
and rescind 33 CFR part 330, appendix
A. The NWPs will now be published
using the procedures adopted on
November 22, 1991, for issuance, re-
issuance, modification, and revocation
of NWPs (see 33 CFR 330.5). The NWPs
will no longer appear in the Code of
Federal Regulations (CFR) but will be
published in the Federal Register and
announced, with regional conditions, in
the public notices issued by Corps
district offices, and included on the .
Internet.
We are reissuing all the existing
NWPs; however, several have been
modified, as have several NWP
conditions as published in the Federal
Register (56 FR 59110) on November 22,
1991. Many of the proposed
clarifications are a result of the
modification of the definition of
"discharge of dredged material" at 33
CFR 323.2 (d). as published in the
Federal Register (58 FR 45008) on
August 25, 1993 (i.e.., the excavation
rule). The definition was revised to
include the following language that
clarified which excavation activities are
regulated: "(iii) Any addition, including
any redeposit, of dredged material,
including excavated material, into
waters of the United States which is
incidental to any activity, including
mechanized landclearing, ditching,
channelization, or other excavation"
(See 33 CFR 323.2 (d) for the complete
definition of "discharge of dredged
material").
We are also issuing, in accordance
with the President's Wetlands Plan, two
new NWPs to authorize those additional
regulated activities with minimal
adverse effects that resulted from the
excavation rule! These new NWPs
include: NWP 30, Moist Soil
Management for Wildlife: and NWP 31,
Maintenance of Existing Flood Control
Projects.
The Corps believes that, when the
changes to the nationwide permits and
their conditions are considered as a
whole, the average approval time for
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65875
projects requiring a Department of the
Army permit will not substantially
change. However, the individual
approval time for •some projects will be
longer while for others it may be
shorter. In addition, we believe that the
approval time for a vast majority of
activities authorized by nationwide
permits will not be affected by these
changes.
We have made a final determination
that this action does not constitute a
major Federal action significantly
affecting the quality of the human
environment. Environmental
documentation and a Finding of No
Significant Impact (FONSI) have been
prepared for each NWP. This
documentation includes an
environmental assessment and, where
relevant, a section 404(b)(l) Guidelines
compliance review. Copies of these
documents are available for inspection
at the office of the Chief of Engineers,
at each Corps district office, and on the
Corps Home Page at http://
wetland.usace.mil/. Based on these
documents the Corps has determined
that the proposed NWPs comply with
the requirements for issuance under
general permit authority.
The 36 nationwide permits issued or
reissued effective January 21, 1991 will
expire on January 21, 1997; however, all
of these permits are being reissued with
an effective date of February 11, 1997.
There will be a period between January
21, 1997 and February 11, 1997 where
these 36 NWPs will not be in effect.
Between today and February 11,1997
the permittee may submit Pre-
construction Notifications (PCNs)
required by the terms of certain NWPs,
in accordance with the NWP
"Notification" General Condition.
However, the 30 day (45 day for NWP
26) time period in the notification
condition will not start until February
11, 1997. Further, Corps districts will
review PCNs during this period and will
verify projects as soon as possible after
February 11, 1997.-Nationwide Permit
29, Single Family Housing, is revoked
and reissued with new conditions on
the same effective date, February 11,
1997, and therefore, there will not be a
period of time where NWP -29 is not in
effect. Permittees may submit PCNs at
any time, however, the 30 day time
period for the reissued NWP -29 will not
start until February 11, 1997. In
addition, two new nationwide permits,
NWP 30 and 31, are being issued with
the same effective date. All of the issued
and reissued nationwide permits, with
the exception of NWP 26, will expire in
5 years on February 11, 2002 unless
otherwise modified, reissued or
revoked. Nationwide Permit 26 will
automatically expire 2 years from
today's date unless otherwise modified
or revoked.
Many of the nationwide permits have
been modified in the course of
reissuance. The continued adequacy of
an authorization under a nationwide
permit, following its expiration, is
dependant upon whether that permit
has been reissued with or without
modification. A nationwide permit is
considered to have been modified if
either the permit scope or limitations
have been modified, or if one of the
nationwide permit conditions which
applies directly to the activity has been
modified. In those cases where the
nationwide permit is being reissued
without change, and General Condition
4 does not directly apply, the
verification remains valid as issued. In
those cases where the previously used
nationwide permit is being reissued
with modification (NWPs 6, 12, 14, 21.
26, 27, 32) or General Condition 4
directly applies to the activity, activities
which commence (i.e., under
construction, or are under contract to
commence) in reliance upon the earlier
NWP, prior to January 21, 1997, will
remain authorized provided the activity
is completed prior to January 21, 1998,
unless discretionary authority has been
exercised on a case-by-case basis to
modify, suspend, or revoke the
authorization in accordance with 33
CFR 330.4(e) and 33 CFR 330.5 (c) or
(d). Activities completed under the
authorization of a nationwide permit
that was in effect at the time the activity
was completed continue to be
authorized by that nationwide permit.
DE's will, in accordance with 33 CFR
330.6(a), provide applicants with the
above information in their responses to
requests for verification of compliance
with nationwide permits. These
procedures are specified in 33 CFR
330.6(b).
Discussion of Public Comments and
Changes
I. Overview
Approximately 4,000 comment
documents addressing the proposed
nationwide permits were received in
response to the June 17, 1996, Federal
Register announcement (61 FR 30780),
district public notices, one national
public hearing, and 6 regional public
hearings. The Corps has reviewed and
considered all the comments. Many of
the comments expressed support for the
nationwide permit program while many
others opposed the program. Most
comment letters provided permit
specific-comments, providing
information and -recommending changes
to both the permits and permit
conditions. A few commenters provided
comments specific to 33 CFR part 330,
our regulations governing
implementation of the nationwide
permit program. These comments were
also reviewed and have been made a
part of the record. However, no changes
have been proposed for 33 CFR part 330
and, therefore, it is not being revised at
this time.
77. General Comments
Regionalization of Nationwide Permits
The Corps proposed a process to
regionalize the nationwide permits,
particularly NWP 26, in order to reflect
the differences in aquatic ecosystem
functions .and values that exist across
the country. We -envisioned a process
where we would solicit the views of the
various stakeholders regarding the
nationwide permits and develop region-
specific approaches for each district to
best protect the environment while
providing fair, reasonable, and timely
decisions for the regulated public. The
final permits we are issuing today
reflect a clear decision to proceed in a
way that does regionalize the program,
particularly NWP 26. We are issuing
NWP 26 for an interim period of two
years, during which we will gather
interested parties at the national level as
well as the district and division levels,
to develop replacement permits for
NWP 26. The replacement permits will
be activity-specific rather than the
geographic based approach of NWP 26.
By developing activity-specific NWPs to
replace the existing NWP 26, we will be
able to more clearly and effectively
address the potential impacts to the
aquatic environment, as well as more
effectively address specific applicant
group needs.
Once the Corps establishes activity-
specific replacement permits that have
clear national conditions to ensure the
aquatic environment is protected and
the impacts will be no more than
minimal, each district, working with the
Corps divisions, will establish regional
conditions for the activity specific
replacement permits. This may result in
the revocation of certain NWPs in
aquatic environments of particularly
high value, and the addition of regional
limitations to specifically address needs
for protection of specific environmental
assets. Of course, we will continue to
encourage all districts to develop
programmatic general permits (PGP)
with states and other regional
• authorities that effectively regulate the
waters of the United States. When such
permits are developed and issued, it is
often appropriate for the Corps district
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to revoke the nationwide permits in the
area covered by the (PGP), provided the
PGP provides at least the level of
protection of the aquatic environment
that the Corps does through its
administration of the NWP program.
During the next two years, as the
Corps develops the activity-specific
replacement permits, the revised NWP
26 will be in effect. We have
substantially changed NWP 26, with
additional nationwide limitations and
conditions, in order to provide
substantially improved protection of the
aquatic environment, and to ensure that
only minimal adverse effects will result
from use of the NWP. These additional
limitations and conditions are discussed
in detail in the preamble for NWP 26
below, as are the specific means by
which we have directed the districts
and divisions to regionalize NWP 26. In
summary, we have directed our districts
working with the divisions and Federal
and state natural resource agencies to
add region-specific conditions to all
NWPs, paying particular attention to
NWP 26. which will add an additional
layer of protection to the changes we
have put into place at the national level.
This process will also involve public
notice and comment to ensure that all
interested parties have the opportunity
to be involved in the process.
Reissuance Process
A few commenters also commented
on the process,we used for reissuance of
the NWPs. One commenter felt that the
Corps should have requested comments
and suggestions from the public prior to
issuance of the proposed nationwide
permits. A few expressed concern that
the Corps Special Public Notices,
announcing the proposed nationwide
permits and requesting comments, did
not include sufficient information to
generate meaningful comment by the
public. These commenters felt that the
public notices should have included
such information as: The text of all
nationwide permits proposed for
reissuance, legal and biological
justification for reissuance, the location
of records regarding use and impacts of
the nationwide permits, potential
additional impacts due to reissuance or
modification of the permits, the extent
and effectiveness of existing mitigation
permit conditions, the effect of the
proposed changes in the permits, and
the possible benefits to die nation of
eliminating specific NWPs. These
commenters also felt that the comment
period was not adequate for so many
permits at one time and recommended
the Corps publish individual public
notices for each permit, three per
month, with 90 day review periods for
each public notice.
The Corps believes that the process
provided adequate information and time
for public review and comment. We
provided concise information regarding
the proposed revisions to the
nationwide permits and included the
names, addresses and phone numbers of
points of contact for requesting
additional information. To include the
information requested |by a few
reviewers as outlined above was not
considered to be productive and the
publication would be too voluminous
and costly for publication and
distribution to the general public.
Information requests received during
the review period were given priority
and information was pirovided in as
timely a manner as was possible. We
extended the original 45 day review
period by 14 days and added 6 regional
public hearings to the originally
scheduled hearing in Washington, D.C.,
in order to provide as much opportunity
for the public to comment as was
reasonable. In response we received •
approximately 4,000 letters of comment,
and most of the public hearings were
well attended. The Cor|ps also believes
it is much more efficient and less
burdensome on all parties involved to
collectively review all jthe nationwide
permits at one time. To publish three
notices a month for 90 days each would
require more than a year to address all
39 NWPs and place a continuous review
burden on the commenting public for
the entire period. Such a process would
also result in significant inefficiencies
in the utilization of Corps limited
resources for implementing the
program. ;
Accounting i
A substantial number of commenters
stated that the Corps of Engineers
should establish a system of record
keeping to quantify impacts and
mitigation, and that such records would
be necessary to document that the
.nationwide permits have only minimal
adverse environmental effects. Many
commenters stated that the acreage lost
due to nationwide permits is not known
and the Corps cannot support a
conclusion that the effects of the
nationwide permits are not significant.
A number of commenters stated that
reporting should be required for all
nationwide permits while others called
for reporting for any permit which
might have more than [minimal impact.
Comments indicated that, at a
minimum, data reported should include
the location and size of any wetlands,
and should be collected by activity,
nationwide permit number and acreage
for each aquatic type. A large number of
commenters asked that the records be
published quarterly or annually and one
suggested they be made available on the
Internet.
The Corps has collected and reviewed
specific data to assist in making
program-wide determinations and
decisions regarding the NWP program.
While we believe that the data currently
being collected for most nationwide
permits is sufficient for these purposes,
we are increasing the information we
will regularly collect in the future. In
particular, we are making changes to
NWP 26 that will substantially increase
the data base regarding that permit.
Many districts also collect additional
data relative to the use of nationwide
permits for use in regionally
conditioning the nationwide permits
and evaluating specific actions on a
case-by-case basis. We do not have the
resources necessary for field verification
of all nationwide authorizations and
associated mitigation efforts. While we
do not believe it is necessary to publish
periodic reports regarding the
nationwide permit program, information
and data collected is available for public
review upon request. Each district does
periodically publish a "Permits Issued
and Denied" report which is currently
sent to standard mailing lists. The Corps
is planning to provide access to such
information and data via the Internet.
Enforcement
Most of those who commented on the
enforcement of nationwide permits
expressed the belief that the Corps has
not enforced permit conditions or
verified that projects are eligible for the
nationwide permit issued. One
commenter stated that lax enforcement
gives violators an economic advantage
over those who comply with the law.
Commenters stated that the Corps must
develop a system to monitor activities,
verify applicant information, and
enforce conditions. Several comments
suggested conducting random
inspections and penalizing violators.
Other proposals included
recommendations that we develop a
process to allow citizens to petition the
Corps to address a situation where
conditions are not being met, or to allow
citizens to sue the Corps to enforce
conditions.
The Corps has limited human
resources to manage the entire
Regulatory Program. Since properly
developed and coordinated nationwide
permits have minimal individual or
cumulative adverse effects, we direct
the majority of our efforts to projects
with a greater potential for impact to the
environment. Every application
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65877
t. rsceived is reviewed and a
.^termination is made whether the
;„• reject is authorized by an existing
general permit or requires a standard
individual permit {IP) evaluation
process. The Corps does inspect a
selected number of permitted activities,
including nationwide permit activities,
each year to encourage and verify
compliance with all terms and
conditions of the permit (individual or
general). The Corps does follow up on
reports of alleged violations of the Clean
Water Act
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and Tribes at the District level, with the
goal of ensuring that issuance of each of
the NWPs in today's package is
consistent with Water Quality Standards
established by the states. Tribes, and
EPA. This process will include
discussion and incorporation of
appropriate terms and conditions that
would ensure consistency with state/
Tribal Water Quality Standards.
We believe that the procedures in 33
CFR part 330 regarding state 401 water
quality certification are appropriate and
provide a reasonable approach for the
state to ensure their water quality
standards will be met. Moreover, we
believe denial of a 401 water quality
certification for a nationwide permit
should not be'the sole basis for
requiring an individual permit
application for activities that would
otherwise comply with the terms and
conditions of that nationwide permit.
Denial of state water quality
certification for a nationwide permit
does not necessarily mean that
unacceptable adverse environmental
effects will occur on a case-by-case
basis. Rather, it indicates that the state
is not confident that state standards will
be met in all cases. It follows then that,
based on the state's denial, the Corps
denies authorization, without prejudice,
for those activities for which the state
denied section 401 water quality
certification. Those activities cannot
proceed under an NWP or an IP unless
the state subsequently issues or waives
a water quality certification for that
activity. Thus, when the state
determines that state standards are met
in a specific case (i.e., an individual 401
water quality certification is issued or is
waived), the nationwide permit
authorization should be available to the
prospective permittee. Finally, this
approach is based on our desire to
develop effective partnerships with
states where workload is shared,
regulatory duplication is reduced, and
neither the Corps nor the states
determine how the other party
discharges its regulatory
responsibilities.
Given the concern regarding the
potential water quality impacts of NWP
26, the Corps will also provide an
additional opportunity for review for
this NWP. In those circumstances where
a state has denied section 401 water
quality certification for activities
between 1/3 and one acre, EPA may
request that the Corps provide EPA with
PCNs for those proposed activities in
the state. Specifically, if the Regional
Administrator requests PCNs in those
states that have denied water quality
certification, the Corps will provide
PCNs to EPA consistent with the
notification general condition. EPA will
work with the other Federal resource
agencies to determinfe which PCNs they.
wish to receive, and will forward them
as appropriate. We anticipate that in
most states the agencies will not be
receiving PCNs for discharges between
1/3 and one acre because of the Corps
commitment to work with the states to
ensure, to the best of our ability, that
Section 401 water quality certification
will be granted. •
Several commenters stated that the
Corps ought to preveht the states from
requiring verification of authorization
from the Corps under section 404 prior
to receiving 401 certification or waiver
thereof. Other commenters stated that
the Corps should limit the states' review
under section 401 toionly 21 days. The
Corps believes it would be
inappropriate for us to instruct the
states on implementation of their
responsibilities unde|r section 401, but
rather we will work Svith the states to
resolve concerns regarding impacts to
the Nation's waters and implementation
of our respective regulatory programs on
a programmatic basis. This will include
discussions between'the states and the
Corps on a reasonable period of time for
the states to act on an individual
Section 401 water quality certification.
One commenter repommended an
additional general condition requiring
that projects otherwise eligible for
nationwide permits also be consistent
with the requirements of section 303 of
the Clean Water Act.iThe states, as part
of their review and evaluation under
section 401 of the Clean Water Act, are
responsible for ensuring compliance
with several sections of the Clean Water
Act, including section 303. Therefore,
we have proposed no changes for this
provision. • ;
Publication of the Nationwide Permits
in the CFR ;
Many commenters were opposed to
publishing the NWPs only in the
Federal Register (FR) and suggested that
they be published in both the Code of
Federal Regulations (CFR) and FR.
Many indicated that using the CFR is
easier and more accessible and that the
FR would make it more difficult and
even a burden for the public to obtain
a full list of available NWPs. One
commenter stated that the Corps failed
to provide an explanation of why it
proposes to publish the NWPs only in
the FR. One comment indicated that
most county and university law libraries
• have the CFR, but not back issues of the
FR; that only libraries with Federal
document depositories have FRs and
very few carry back issues. One
commenter pointed put that although
FRs are found on databases or CD Rom
(e.g.. Environmental Law Reporters)
they usually have only the prior year on
database. Therefore, they would have no
access until the nationwide permits are
over one year old.
One commenter requested that the
final announcement include a summary
of nationwide permits valid in each
state to provide those who work in
multiple states with a "one-stop
reference" of potential nationwide
permits.
The final nationwide permits have not
been included in the CFR and are being
published herein, following procedures
similar to those for individual permits
and regional general permits, because
NWPs are-permits, not regulations, and
therefore, are not appropriate for
publication in the Code of Federal
Regulations. While publication in the
CFR would provide a ready reference,
publication of the final decisions on the
nationwide permits are announced in
the Federal Register and will also be
published through regional public
notices issued by District Engineers.
Moreover, publication of the nationwide
permits in the CFR does not provide an
accurate representation of the
nationwide permits for any particular
area. Such CFR publication would not
include the state 401 position nor
regional conditions imposed by the \
local Corps district and division offices.
Furthermore, the CFR is only published
once a year. Therefore, the reissued
NWPs would not be published until July
1997. In addition, it is our intention to
ensure that all of the pertinent statutes,
regulations and other guidance, as well
as the nationwide permits including
district regional conditions, be made
available on the Internet in the near
future.
Compliance With the National
Environmental Policy Act
Numerous commenters stated that
issuance of the NWPs in their proposed
form would constitute a major Federal
action which would have a significant
effect on the human environment, thus
requiring preparation of an
Environmental Impact Statement (EIS)
under the National Environmental
Policy Act (NEPA). Numerous
commenters also contended that the
Corps decision documents are
inadequate, do not provide .enough
information, and are based on •
insufficient data to appropriately
evaluate the impacts of the NWPs. Many
of the comments received indicated the
Corps should prepare an EIS to ensure
that adverse effects are minimal. One
commenter added that, at a minimum,
ah EIS should be prepared for NWPs 26
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65879
and 29. Other commenters listed the
following NWPs as needing an CIS:
NWPs 12. 13, 14, 21, 34, and 40.
Several commenters requested that
the Corps prepare a cumulative impact
analysis now and make it part of an EIS.
Several different commenters provided
the following -estimates of cumulative
impacts occurring under the existing
NWP program as acres of wetlands lost:
70,000 acres per year; 82,000 acres from
1988 to 1996 nationwide from 27 of the
36 Corps districts and only from NWPs
that were reported to the Corps
(included in .this figure was an estimate
of 4,333 acres of vernal pools lost in
California); in 1994 more than 90,000
wetland filling activities proceeded
under Corps general permits; nearly •
one-half million activities; the sum of
the small, 0.5-acre, wet areas, like the
prairie potholes and vernal pools,
impacted is biologically significant; the
National Oceanic and Atmospheric
Administration's National Marine
Fisheries Service (NMFS) Pre-
construction Notification (PCN)
database from 1992 to 1996 indicated a
loss of 5,500 acres in the southeast
region of the United States (Florida had
more than 2,000 acres, Georgia, more
than 1,000 and coastal Texas 300 acres
in Harris County alone).
Several commenters raised the issue
of alternatives analysis. One commenter
recommended that a full range of
reasonable alternatives be explored in
the decision documentation, to include
not only alternative formulations of the
individual NWPs, but also alternative
approaches to NWPs, in general. The
commenter states that Programmatic
General Permits (PGPs), including state
PGPs, have already been demonstrated
to be effective in several northeastern
states. One commenter requested that
the decision documents incorporate the
regional conditions.
The Corps has collected data relevant
to the usage of nationwide permits and
associated impacts and we believe that
our data demonstrate that the adverse
effects from the previous NWPs were
minimal. These data show that for
Fiscal Year 1995 (FY95) a total of 43,775
activities were authorized with written
Corps verifications under all of the
. NWPs nationwide (this total does not
include those for NWP 27, which allows
for creation, enhancement and
restoration of wetlands and are,
therefore, anomalous' to this data set).
These authorizations under all of the
NWPs adversely affected approximately
"6,500 acres of wetlands and the Corps
received approximately 7,800 acres of
mitigation in return. It is estimated that
there were approximately 87,000
activities authorized by all of the NWPs
nationwide that did not require a PCN,
or were otherwise verified in writing by
the Corps. We estimate that these
unverified authorizations adversely
effected an additional 4,300 acres of
wetlands. Although this is less than .
many have suggested, we are
consciously striving to reduce this loss
through the changes to the program set
forth here today. Moreover, the
provisions and limitations of the
nationwide permit program ensure that
those activities authorized by NWPs
will have less than minimal adverse
environmental effects. Notwithstanding
our continued belief that adverse effects
of the NWP program have been minimal
and the fact that the NWPs we are
issuing today will substantially reduce
potential effects, the Corps will collect
additional data on the reissued NWPs,
to document more fully the impacts. For
all NWPs that involve a PCN, we will
collect data on the acreage of impact
and acreage of mitigation. We are also
adding a condition to NWP 26 that will
require all permittees to notify the Corps
of the acres of impact of their project.
The Corps evaluation of the impacts
on the aquatic environment resulting
from the Nationwide Permit (NWP)
program indicates that the cumulative
adverse environmental effects are
minimal and not significant. This is
based on our belief that cumulative
impacts must be viewed in the context
of the individual watersheds. We
believe that past, regional conditions
placed on NWPs, particularly NWP 26,
in many districts have substantially
reduced cumulative impacts on a
watershed basis. Districts have revoked
NWP 26 in many high value watersheds
and placed additional notification or
other limitations on NWP 26 to ensure
minimal adverse environmental effects
to specific watersheds. Although these
past regional protections have
substantially reduced adverse
environmental impacts, we believe
additional protections are needed to
continue to ensure that only minimal
adverse environmental effects will
occur. Some of the additional
protections we are implementing
include substantially reducing the
acreage limits under NWP 26, ensuring
that stacking of NWPs impacts a
maximum of 3 acres and only after a
review by the Corps, substantially
increasing the number of instances
where a Corps review is necessary, and
requiring increased and more detailed
data collection to better monitor NWP
activity. Moreover, we are more strongly
directing the Corps districts and
divisions to add regional conditions for
high value watersheds, and additional
generalized regional conditions that will
ensure that only minimal impacts will
occur. This will also ensure that
cumulative impacts will not be
significant.
In that the adverse effects will be less
than minimal, it also follows that they
will not result in "significant impacts
on the human environment," the
threshold requiring an EIS as defined
within regulations implementing NEPA.
Thus, no EIS is required prior to
finalization of these nationwide permits.
Formal documentation of the Corps
analysis and determinations have been
prepared in compliance with NEPA and
the Clean Water Act. This
documentation includes an
environmental assessment and, where
relevant, a section 404(b)(l) Guidelines
compliance analysis. Copies of these
documents are available for inspection
at the office of the Chief of Engineers
and at each Corps district office.
Additionally, Division Engineers will
supplement the national NWP decision
documentation to discuss regional
conditions and regional revocation
requirements, which further ensure that
the impacts are minimal. These
supplements will be available for
inspection at the appropriate district
offices. We have prepared a
programmatic alternatives analysis for '
each-NWP which discusses
administrative alternatives to issuing
each NWP.
General Permit Criteria
Several commenters requested that
the Corps define what constitutes
"minimal" adverse effects and "similar
in nature" and prove or guarantee that
the NWPs meet the legal requirement
that wetland fills have no more than
minimal adverse effects before the
NWPs are reissued. One commenter
stated that the Corps simply ignores the
requirement of section 404 (e) for
activities that are "similar in nature"
and have no more than minimal adverse
effects on aquatic resources such as
wetlands. Another commenter
recognized that generally the NWPs are
conditioned to ensure that adverse
effects will be minimal, but was
nevertheless concerned that there are
many serious exceptions, noting NWPs
26, 29. 34, and 40. One commenter
argued that some of the NWPs covering
activities that are similar in nature
could affect wetlands that were not
similar, including NWPs 7, 12, 13, 14,
16, 17, 19, 21,-25, 26, 29, 33, 34, 37, and
40. Most commenters indicated that
NWP 26 was of most concern and others
commented that, without mitigation,
there could be a cumulative effect.
Several commenters recommended that
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Federal Register / Vol. 61. No. 241 / Friday, December 13, 1996,7 Notices
the Corps first obtain data to determine
the extent of the project impacts.
Without such data, they maintain that it
is difficult to accurately assess if
wetland fills authorized by the NWPs
comply with the Clean Water Act
requirements for no more than minimal
individual or cumulative adverse
environmental effects.
We have determined that it is not
appropriate to define the term
"minimal" at the national level, because
what constitutes minimal adverse
environmental effects can vary
significantly from resource to resource,
state to state, county to county, and
watershed to watershed, as well as
district to district. Moreover, the term
"minimal" must be defined based on
the effects of the specific project in the
immediate vicinity, and in the
watershed where the activity will occur.
Simply listing the acres lost nationally
is not instructive regarding minimal
adverse effects. Therefore, the
determination of "minimal" adverse
environmental effects is left to the
discretion of the DE. The district
represents the most knowledgeable
office concerning the aquatic resources
within that particular region, and the DE
is therefore the most capable of
assessing relative impacts that would
result from activities authorized under
the NWP program. We believe that each
nationwide permit authorizes similar
activities within the definition for
general permits as defined in 33 CFR
322.2(f) and 323.2{h). and with each
district's capability to identify impacts
associated with these activities and the
ability of the DE to require project
specific mitigation or to exercise
discretionary authority, activities
authorized under these NWPs will have
less than minimal adverse effects. The
Corps divisions have had the authority,
based on recommendations from the
Corps districts, to reduce potential
adverse effects by imposing regional
conditions or revoking the applicability
of specific NWPs in high value aquatic
areas. The Corps divisions have used
this authority in many cases. However,
we are, in this notice, further
emphasizing to all Corps districts and
divisions that they should use this
authority within their geographical
areas to further ensure that only
minimal individual and cumulative
adverse effects will occur. We expect
that each division will, based on the
recommendations from each district,
restrict the use of several nationwide '
permits to ensure protection of high
value aquatic systems under its
authority. Moreover, districts will
ensure that adverse effects under NWP
26 are minimal by requiring mitigation
for most projects abo^e Vs acre. This
determination is further reinforced by
the NEPA and Section 404 evaluations
discussed above. The; collection of
detailed data for the-purpose of
addressing cumulative impacts is also
addressed above under "Compliance
with the National Environmental Policy
Act."
Endangered Species
The Corps believes that the
procedures that we have in place ensure
proper coordination under section 7 of
the Endangered Species Act (ESA) as
well as ensuring that threatened and
endangered species will not be
jeopardized and their critical habitat
will not be destroyed; We also believe.
that current local procedures in Corps
districts are effective jin ensuring that
the ESA is fully complied with under
the nationwide permit program. Finally,
we have incorporated several additional
assurances into the program which have
resulted from informal consultation
with the U.S. Fish and Wildlife Service
(FWS) and the National Marine
Fisheries Service (NMFS).
Under the current Corps regulations
for our NWP program (33 CFR 330.4(f)),
each district must consider all
information made available to it, and
information that it has in its own
records, to determine whether any listed
threatened or endangered species or
critical habitat may be affected by a
specific permit action. Based upon this
consideration and evaluation, the.
district will initiate consultation with
the FWS or NMFS, as appropriate, if the
district determines that the regulated
activity may affect, or if the district
believes that the action is not likely to
adversely affect, any endangered
species. Consultation may occur under
the NWP process or the district may
assert its discretionary authority to
require an individual permit for the
action and initiate ESA consultation
during the individual permit process. If
the ESA consultation is conducted
under the NWP process without the
district asserting its discretionary
authority and require an IP, then the
applicant will be notified that he cannot
proceed until the consultation is
complete. If the district determines that
the activity would have no effect on any
endangered species, then the district
would proceed to issue a NWP
verification letter. The Corps
verification letter will explicitly state
that the Corps has made a determination
of no affect on endangered species.
Corps districts have, in most cases,
established informal or formal
procedures with their local counterparts
in the FWS and NMFS through which ,.
the agencies share information regarding
endangered species. Information
developed, shared, and used by the
local Corps and FWS/NMFS offices
result in the. Corps becoming aware of
potential adverse effects on ESA-listed
species. In most cases, maps and
computer data bases are available on the ;
local level that identify locations of
populations of endangered or threatened
species and their critical habitat.
Moreover, for cases which involve a
level of potential adverse effects that
require a PCN process of coordination
with the other agencies, the Corps is
now specifically requesting any
information that the FWS or NMFS may
have on endangered species as part of
the PCN consultation. Thus, based on
location of the-project, an additional
level of review now exists for these
types of projects. Furthermore, the
Corps is now requiring additional PCNs
in additional areas and for additional
types of activities to ensure that the
potential NWP effects will be minimal,
for example, the lowered threshold
levels of NWP 26. This provides for an
additional level of review for many
more activities. Any information
provided through the PCN process will
be used by the district to make its "may
affect," "not likely to adversely affect"
or "no affect" determination.
In addition to the procedures listed
above, each NWP verification includes
General Condition 11, which states that
"no activity is authorized tinder any
NWP which is likely to jeopardize the
continued existence of a threatened or
endangered species * * * or which is
likely to destroy or adversely modify the
critical habitat of such species." Also, to
avoid possible confusion on the part of
some applicants, Condition 11 has been.
modified to clarify that this NWP does
not authorize the taking of Federally
listed threatened or endangered species.
This should help ensure that applicants
do not mistake the Corps permit as a
Federal authorization that would allow ;
the taking of Federally listed threatened
or endangered species.
Although the Corps continues to
believe that these existing procedures
ensure that the Nationwide Permit
Program complies with the ESA, we will ;
take the following additional steps to
provide further assurance. First,
although not required, the Corps will
initiate programmatic formal section 7 .
consultation with the FWS and NMFS
•as a precaution to further ensure that
there is no adverse effect on listed
species. We intend that formal
consultation will be concluded as soon ,
as possible but not to exceed two years
from the date of issuing the revised and
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65881
reissued NWPs. Second, the Corps will
direct the district offices, in writing, to
meet with appropriate localt
representatives of the FWS and NMFS
and to establish or modify existing
procedures to ensure that the Porps has
the latest information regarding the
existence and location of any Federally
listed threatened or endangered species
or their critical habitat in its district.
This will ensure that districts have the
best information available to make
decisions regarding whether an activity
may affect an endangered species and
thus whether or not to initiate
consultation. The Corps districts can
also establish through local procedures,
regional .conditions or other means of
additional consultation for areas of
particular concern that a permitted
activity may affect an endangered
species. The Corps believes that the
procedures that we have in place ensure
proper coordination under section 7 of .
the ESA, as well as ensuring that
threatened and endangered species will
not be jeopardized, and that their
critical habitat will not be destroyed.
While we are issuing/reissuing this
entire package of NWPs (except for
NWP 26) for a period of five years, we
will be working over the next twenty-
four months to collect data, monitor use
of these NWPs, and conduct formal
consultation under section 7 of the ESA.
This two year process is intended to
provide us with more detailed
information on the types of activities
being authorized, the nature and extent
of wetlands and other waters being
affected by the NWPs, and potential
effects to the Nation's Federally listed
threatened and endangered species.
Immediately following the conclusion of
this two year process, we will use the
, results of this data collection, analysis,
and consultation to reevaluate the
NWPs being issued/reissued today to •
determine what modifications are
necessary. We will provide to the
public, by notice in the Federal
Register, the results of our data
collection and consultation. In addition,
we will provide the opportunity for •
public comment on changes to the NWP
program that might be necessary to
ensure compliance with the CWA, ESA
and NEPA. In the interim, we would
welcome any comments or information
that the public might wish to provide
relevant to our data collection and
consultation process.
///. -Comments and Responses on
Specific Nationwide Permits
1. Aids to Navigation: Two
commenters supported reissuance of
this NWP and no changes were
.proposed. NWP 1 is reissued without
change.
2. Structures in Artificial Canals: No
changes to this permit were proposed by
the .Corps. One commenter suggested
the term "artificial canal" be defined
and that the definition exclude historic
sloughs or channels. Another
commenter suggested that the term
"structures" is too vague and requested
clarification on the interpretation of ' ,
"principally residential canals,"
whether this .NWP authorizes the
removal of structures, and whether it
can be used in place of or in association
with NWP 13 for bank stabilization.
While the term artificial canal could
be misinterpreted by some to include
channelized natural areas, this is clearly
not the Corps interpretation. Should a
Corps district find that individuals are
using NWP -2 in such areas, the district
would take appropriate action to bring
such activities into compliance through
proper procedures. In accordance with
33 CFR 322.5(g), structures in
previously authorized canals would
have been considered under
applications for the original canal work.
In grandfathered canals or in cases were
structures may not have been
considered, the DE may use
discretionary authority to evaluate
structures if more than minimal adverse
effects are anticipated. Artificial canals
within principally residential
developments would be used primarily
for personal or recreational egress and
ingress rather than for commercial use.
The Corps procedures, as outlined in
the general condition for historic
properties, comply with the
requirements of 33 CFR part 325
appendix C, which implements 36 CFR
part 800 and fully satisfies the
requirements of National Historic
Preservation Act (NHPA). This
nationwide permit is not to be used for
bank stabilization projects; such projects
should be reviewed for authorization
under NWP 13. In case(s) of
independent utility, NWP 2 may be
used in conjunction with NWP 13
provided individual or cumulative
adverse effects are not more than
minimal. We anticipate that the impacts
resulting from the removal of structures
in artificial canals would be similar to
the impacts derived from the original
installation. Consequently, removal
activities are authorized by this NWP.
NWP 2 is reissued without change,
3. Maintenance: The Corps proposed
no changes to this nationwide permit.
One commenter recommended that the
NWP not allow restoration that clearly
adversely affects fish and wildlife.
Several commenters recommended that
no deviation from the original design be
authorized by the permit since changes
could result in significant adverse
effects, while one commenter suggested
eliminating the qualification for "minor
deviation in the structure's
configuration." Another commenter
requested a list of types of authorized
activities and that "minor" be defined.
Another commenter asked for inclusion
of bridge/culvert replacement that
complies with flood-proofing and
structural design standards.
The experience with NWP 3 has been
very good; navigable waters have not
been obstructed and impacts are, very
minor. Furthermore, in many cases, use
of NWP 3 actually enhances the aquatic
environment. For example, replacing a
seawall that is damaged often results in
eliminating chronic turbidity caused 'jy
erosion. Because all structures and fills
require maintenance periodically and
because infrastructure repair following
national disasters is critical to the
public welfare, we believe this
nationwide permit is necessary. We are
retaining the provision allowing "minor
deviations" in order to provide the
flexibility necessary to keep pace with
construction technology, building codes
and public safety. Activities with
deviations resulting in more than
minimal adverse effects would not be
authorized by this nationwide permit,
nor would activities having more than
minimal adverse effects on fish and
wildlife. The qualifications attached to
the "minor deviations" provision are
considered necessary in order to ensure
adverse effects are avoided and
minimized to the extent possible. This
NWP is not limited by type of facility.
"Minor" is not specifically defined,
because the variety of structures and •
fills included makes defining the word
impracticable. "Minor" is meant to refer
to a level of project deviation which will
result in a level of adverse
environmental effects associated with
the change that are no more than
minimal. Bridge and culvert
replacement in compliance with local
requirements and design standards
would normally be authorized under the
permit if they meet the limitations and
conditions of the permit.
One commenter requested that NWP 3
authorize activities previously
authorized by 33 CFR 330.3 and
equivalent authorizations at the state
level or constructed prior to the
excavation rule. NWP 3'specifically
states in the first sentence that 33 CFR
330.3-authorized activities are included.
Similar authorizations under state laws
can vary considerably and may not be
consistent with'NWP 3; thus a blanket
authorization is not appropriate. This
nationwide permit is tied to structures
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65882
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Federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 / Notices
and fills only, and cannot be used to
authorize the repair, rehabilitation or
replacement of excavated facilities. The
term "structure" does not include
unconfined waterways, such as streams
and non-lined drainage ditches. The
term does include such activities as
bank protection measures, ditches and
canals lined with man-made and placed
materials.
Several commenters recommended
that fills and structures required by
special conditions in a previously
issued permit be covered. The NWP
does authorize maintenance of such
structures or fills that were previously
authorized. This NWP does not
authorize activities that were not
previously authorized by the Corps.
Another commenter suggested that
ESA coordination occur after
catastrophic events when new habitat
can be created but then damaged by
repair activities. General Condition 11
and ESA section 7 require coordination
for endangered species. Consideration of
improved habitat is made under section
7.
Another commenter felt maintenance/
operation plans should be approved
before the work is conducted. We
believe that this would create an
unnecessary burden on the applicant
and the Corps for authorization of
maintenance and repair activities with
less than minimal adverse effects.
One commenter believed that the two
year construction time period should be
extended, while another felt that two
years is long enough. In our judgment,
two years has proven to be a reasonable
period that does not jeopardize
environmental protection due to
changing conditions. The permit
includes provisions for the DE to extend
the period if warranted.
Another commenter felt that this
NWP should not be allowed in
floodplains. We believe the floodplain
capacity,would not be appreciably
changed for structures or fill
maintenance and repair within the
limits of this NWP.
One commenter suggested limiting
the impact area and another suggested
the PCN procedure be applied to this ,
NWP. Since NWP 3 only authorizes
structures and fills that are existing, the
impacts have already occurred.
Maintaining them creates little or no
added adverse effects, which ensures
that effects would be less than minimal.
Therefore, we believe neither of these
limitations should be applied. NWP 3 is
reissued without change.
4. Fish and Wildlife Harvesting,
Enhancement, and Attraction Devices
and Activities: As part of the proposed
modification of this permit, we were
clarifying that the permit does not
authorize the use of covered oyster trays
or clam racks. One commenter
questioned whether the prohibition on
clam racks included "clam bags" and
was concerned about fhe scope of *
"covered oyster trays and clam racks." •
This commenter was also concerned
about the harvesting of natural live rock,
the inclusion of open Water pens in the
definition of "impoundments or semi-
impoundments for culture of motile
specimens," or qualitative limitations to
define "small fish attraction devices";
and whether bottom dredging of sea
grass areas or "bottom tending gear" for
commercial purposes were authorized
by this permit. One commenter.
suggested that the permit should
specifically exclude commercial scale
net pen culture in addition to oyster
trays and clam racks. Another
commenter asserted that shellfish beds
should not be authorized under this
permit. This commenter also stated that
the exclusion of authorization of
covered racks and the location of racks
in wetlands of sites that support aquatic
vegetation was not sufficient. The
commenter cited information that
described changes in species diversity
associated with the Iqcation of racks on
and in intertidal mudflats. One
commenter stated that the permit
should be modified to authorize the
releases of scallop and hard clam seed
into eelgrass cover. One commenter
urged that small aquaculture projects be
excluded from this permit, while
another commenter stated that fish
hatcheries should be specifically
excluded. A few commenters suggested
that the installation of fish ladders be
included under the permit. One
commenter was concerned about
issuance of permits in'areas that have
been customary boating channels.
Each of the comments on this
nationwide permit are expressions of
concern for unique situations in specific
regions of the Nation^ It is not possible
to address all the possible limitations
and conditions that may be appropriate
at a local or regional level. Nor can we
address all the possible variations in
terminology, such as *'clam bags."
Therefore, we believe it is more
reasonable and practicable for such
comments to be addressed 'through
regional conditions and the provisions
for discretionary authority at the .
division and district levels. Corps
districts have the authority, working
with the divisions, to restrict use of this
NWP in high value areas, such as
particularly vulnerable seagrass beds, if
they deem such restrictions to be
necessary. The one change proposed by
the Corps was not objected to and
received some comments of support.
Therefore, that change has been made to
the permit in its reissuance.
Another commenter suggested that
the.permit be modified to include "sites
where submerged aquatic vegetation
may not be present'in a given year."
Although we believe that the NWP •
language includes such sites in the
terminology"* * * or sites that support
submerged aquatic vegetation * * *"
(i.e., a site may not have submerged :
aquatic vegetation present, but could
support such vegetation), we have
clarified this in the NWP. NWP 4 is
reissued with the proposed changes and
the clarification stated above.
5. Scientific Measurement Devices:
The Corps proposed no changes to this
NWP. A few commenters were
concerned that the structures permitted
by this NWP could preclude or
substantially obstruct movement of
aquatic organisms including migratory
fish. One commenter was concerned
that this NWP does not provide any
limit on the size or Use of the structures
authorized and suggested that a
maximum size be included (e.g., 1000
square feet). This commenter also
recommended that the NWP be
.conditioned that the structure be used
exclusively for purposes associated with
scientific measurement to preclude
anyone from using this NWP to
circumvent the permit process. One
.commenter recommended that the 25
cubic yard threshold be maintained but
to eliminate the PCN requirement.
We believe the concern for impeding
the passage of fish or shellfish is
addressed by General Condition 4. Due
to the varying structures involved in
scientific measuring devices, imposing a
size limitation would be difficult and
unwarranted. A condition will be added
stating that any structure authorized by
this NWP must be exclusively used for
purposes associated with scientific
measurements. We have also modified
the PCN requirement so that: applicants
will need to notify only the Corps. NWP
5 is reissued with the modifications
described above.
6. Survey Activities: The Corps-
proposed changes to this nationwide ,
included allowing discharges associated
with the placement of structures
necessary to complete a survey for
historic resources and soil surveys. Most
commenters supported the proposed
changes. A few commenters requested
that the placement of survey markers
such as benchmarks and monuments be
authorized under this NWP. One
commenter'felt that mechanical clearing
of survey lines should be included, but •
limited to 8 to 10 foot widths. A few
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65883
'commenters requested that limited
discharges and structures necessary-for
the recovery of artifacts and information
he included in the NWP rather than
excluded as proposed. Many
commenters asked for the exclusion of
seismic exploratory operations
involving the use of explosives, such as
"3-D" operations, due to the extensive
scope and environmental impacts of
such activities. It was proposed that the
term "core sampling" be changed to
"soil, rock and sediment sampling" and
changing "exploratory-type bore holes"
to "exploratory-type holes" because
while most sampling of rock may be by
coring, much of the soil sampling is by
other methods (i.e.,' augering, hand
shovel, backhoe, etc). Other commenters
asked that the permit language
specifically indicate that no permanent
structures are authorized, all fills be
removed and that the area be restored to
its original state.
The placement of survey markers
such as benchmarks and monuments is
authorized under NWP 18 within
limitations. Activities necessary for the
recovery of artifacts and information are
not authorized by this NWP which is
intended for authorization of survey
activities only to ensure the minimal
adverse effects limitation is not
exceeded. Operations involving the use
of explosives such as 3-D operations
with blast shock during seismic tests, or
mechanical landclearing activities, have
not been categorically excluded. These
activities are either unique to, or differ
between, geographical regions of the
Nation; therefore, regional conditions
are the best way to address concerns
about minimizing the effects of 3-D
'seismic.surveying. Corps districts will
be directed to coordinate with any
Federal, state, or tribal authority
expressing a concern about 3-D seismic
surveying for the purpose of developing
regional conditions to address those.
concerns, as appropriate. Of course, use
of towed explosive, pneumatic or
seismic devices that do not involve
construction, excavation or other work
in sediments do not require any permit
from the Corps. We have conditioned
this NWP to clarify that it does not
authorize any permanent structures or
fills. The current wording of the NWP
does include, but is not limited to, the
use of augers, shovels, backhoes, and
other small equipment, as well as core
drills. NWP 6 is reissued with the
proposed changes and the clarification
stated above.
7. Outfall Structures: The Corps
proposed no changes to this NWP. A
number of commenters objected to re-
authorization of this NWP or stated that
work in tidal wetlands or areas
supporting anadromous .fishes should be
excluded. Commenters stated that
outfalls have caused the loss of
wetlands and may trap or entrain fish.
Several commenters stated that the
NWP should contain a requirement to
include measures in the design to
prevent such fish loss. One comment
indicated that work in areas that may be
contaminated should be excluded.
Another stated that activities authorized
by this NWP have significant adverse
environmental effects.
Regional conditioning of the
nationwide permit and the provisions
for discretionary authority at the
division and district levels will provide
tools necessary to protect fish, wetlands,
and water quality, and to address any
other environmental effects that
potentially are more than minimal.
One commenter requested elimination
of the notification requirement when the
construction of the outfall requires less
than 25 cubic yards. Several
commenters called for retaining the
notification requirement.
The notification requirement will be
retained to allow review of proposed
projects for greater than minimal
adverse environmental effects and
impacts to navigation.
Several commenters stated that this
permit violates section 404 (e) of the
Clean Water Act because the discharge
structures may not be similar in size or
in the material discharged. One
commenter called for authorizing all
intake structures under this NWP.
The activities authorized by this NWP
are similar because they are similar in
scope and purpose and are reviewed
and approved pursuant to the National
Pollutant Discharge Elimination System
(NPDES) under section 402 of the Clean
Water Act. The relationship of these
projects to section 402 assists the Corps
in arriving at a minimal adverse effects
determination. The inclusion of all
intake structures under the NWP would
make such'a determination not possible,
NWP 7 is reissued without change.
8. OH and Gas Structures: The Corps
proposed minor changes to this
nationwide permit to clarify that Corps
review for taking discretionary authority
is limited to the effects on navigation
and national security. One commenter
was concerned that work could occur in
environmentally sensitive areas.
Another commenter suggested that
pipelines be excluded from use of this
NWP. A few commenters believed that
this NWP should not be reissued
.because of potential impacts associated
with oil and gas exploration and that
this NWP does not meet the "similar in
nature" or "minimum effects" threshold
of section 404 (e) of the Clean Water Act.
One commenter recommended.that a
PCN be required for this NWP. A few
commenters believed that individual
state 401 water quality certification
should be required for these activities.
The Corps believes.this NWP is very
restrictive. 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 the Service must
prepare prior to issuing a lease. Further,
the Corps involvement is only to review
impacts on navigation and national
security as stated in 33 CFR 322.5 (f).
NWP 8 is reissued with the proposed
clarifications.
9. Structures in Fleeting and
Anchorage Areas: The Corps proposed
no changes to this NWP. One
commenter requested clarification of the
term "structures" and the definition of
"fleeting and anchorage areas," and
expressed concern for secondary
impacts of vessel discharges, and
impacts from shading submerged
aquatic vegetation by the structures.
The NWP is specific to the purpose of
moorage of vessels, thus structures will
be small compared to the vessels.
Fleeting and anchorage areas are
determined by the U.S. Coast Guard and
indicated on navigation charts. They are
for concentrating vessels in an area that
minimizes navigation impacts to other
vessels while the former vessels wait for
unloading cargo, etc. Shading impacts
are not expected as these areas are
usually in deep water and the structures
and buoys seldom produce measurable
shading. NWP 9 is reissued without
change.
10. Mooring Buoys: The Corps did not
propose changes to this NWP. One
commenter expressed concerns about
the limitations or specifications on the
size or number of mooring buoys, and
the environmental restrictions on
location.
Comments regarding specific areas
that should be excluded or other special
restrictions that are needed to protect
special areas such as shellfish beds or
submerged aquatic vegetation should be
dealt with by contacting the appropriate
district and requesting the addition of
regional conditions. Based on our
experience, we do not anticipate that
the mooring buoys and anchorage ^
systems will have more than minintel
adverse effects, either individually or
cumulatively. NWP 10 is reissued
without change.
11. Temporary Recreational
Structures: The Corps proposed no
changes to this NWP. A few commenters
were concerned that the NWP may
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cause removal of riparian vegetation and
alter the nearby shore aquatic
environment, and that the Corps should
define "temporary," "small floating
docks" and "seasonal". A commenter
requested that the NWP be expanded for
certain commercial activities other than
jet ski, parasailing, and similar rentals,
provided the activity is of temporary
duration.
We disagree with the approach of
attempting to define national time
limitations on temporary or seasonal
structures because of the seasonal
variations for different recreational
activities from region to region. Regional
conditions can be developed for the
NWP and/or the District Engineer may
use discretionary authority, on a case-
by-case basis, if duration, structure size,
or location require such action. Limiting
the NWP to discrete events would
greatly reduce its utility. This
nationwide permit was proposed to
authorize temporary recreational
structures which overall would have
only minimal adverse effects. Given
this, and the discretionary authority
provisions, the Corps believes that the
NWP adequately balances the need for
temporary recreational structures in
waters of the United States, while
protecting riparian and aquatic
resources. NWP 11 is reissued without
change.
12. Utility Line BackRll and Bedding:
The Corps proposed rewording of this
NWP to include discharge of dredged
material from the trench excavation, and
requested comments establishing
limitations for special aquatic sites. A
large number of comments addressed
NWP 12. Based on the comments we
. received and the Corps internal
evaluation of the implementation of
NWP 12, we have made substantial
changes to this permit. We have added
a PCN review for four situations: for any
activity that would be authorized under
NWP 12 that involves more than 500
linear feet in waters of the United
States; for any project that involves
mechanized landclearing of forested
areas; for any utility line that is placed
parallel to a water of the United States;
and for any activity involving
authorization under section 10 of the
Rivers and Harbors Act of 1899. We
believe that these increased limitations
will ensure that no more than minimal
adverse effects to the aquatic
environment will occur.
The comments were closely split
between supporting issuance without
changes and supporting issuance with
limitations. Several commenters were
opposed to reissuance based on
environmental impacts. Many
commenters. requesting limitations.
made suggestions on those limits: 200
linear feet, 1,000 linear feet in forested
wetlands, 6 inch diameter.utility line,
.0.33 and 0.5 of an acre. Some
commenters suggested PCN procedures
•above particular limits: 6 inch diameter
line, 0.5 of an acre. The allowed
duration of side casting also received
suggestions: no side cjasting, 14 days, 30
days. Work with a maximum width of
30 feet was suggested ;by two
commenters. I
The variation in wetland values
across the nation dictates that a
limitation, or threshold for PCN, not
overly restrict use of t|he NWP or
unnecessarily add administrative
burden to any large geographic area.-
Potential impacts will vary with the
construction methods. The acreage
limitation presents the possibility that
high value wetlands could suffer more
adverse effect at less acreage than the
limitation/PCN threshold, but low value
or easily recovering wetlands would
require unnecessary added
administrative procedure when
exceeding an acreage limitation/
• threshold. An acreage limit of 0.33 acres
would allow a nearly 2Vz mile long
utility line trench that was one foot
wide. This could be a minimal impact '
in some areas, but may require an
individual permit in other geographic
areas and/or wetland (types or values.
Based on careful review of all the
comments, we have determined that
certain limitations shpuld be established
and that certain activities will require a
Corps-only PCN. We have added section
10 to this permit to allow districts to
authorize projects that cross navigable
waters. To ensure the navigable capacity
of such waters will not be adversely
affected, we have also established a PCN
for any authorization;that involves work
in section 10 waters. We have also
explicidy stated that mechanized
landclearing, including landclearing of
forested wetlands, for overhead utility
lines may-be authorized under NWP 12.
To ensure that only minimal adverse
effects will occur, we have established
a PCN requirement for any utility line
that will require landclearing of forested
wetlands. We have also included the
requirement for a PCN whenever a
utility line is placed parallel to a stream
bed. Finally, in order to ensure that only
minimal adverse effects will occur, we
have established a PCN requirement for
any use of NWP 12 that exceeds-500
linear feet in waters Of the United
States.
Several commenters recommended
that stream crossings! be allowed only if
perpendicular to the stream. One
. commenter suggested that bank
stabilization must occur by segments
rather than at the completion of the
entire project. Another stated that laying
utility lines on bottoms of streams
should be discouraged. Several
recommended that alternative routes be
examined more thoroughly. We have
added several PCN requirements,
including one for situations where a
utility line is proposed to be placed
parallel to a stream bed. Generally,
utility lines are placed perpendicular to
•a stream and we are, with this notice,
directing the Corps districts to critically
evaluate any projects that may be
proposed to be placed parallel to a water
of the United States. Moreover, we
believe that it should be an exceptional
case where a district authorizes a utility
line within, or within wetlands parallel
to, a stream bed for more than 100 feet.
With the added PCN review, by the
Corps, for any project that should be
subject to a generalized alternative
analysis (i.e., more than simply
adjusting the alignment slightly to
ensure minimal adverse effects), the
district will use its discretionary
authority to require an IP.
Several commenters believe that this
permit should not be used in
combination with other permits (see
additional discussion on stacking
permits). This restriction would be too
limiting for many projects that have
minimal adverse effects for the entire
project including utility lines. At times,
• utility lines are considered "single and
complete projects" as they support
existing developments but will also
support other future development. We
have added a PCN for any stacking of
NWP 12 with any other NWP.
Several commenters appeared to be
confused with the word "subaqueous".
Two commenters suggested slightly
different wordings and deleting
"subaqueous". The term subaqueous
referred to below the -surface of the
ground (wetland) or water surface; a line
laid on the surface does not require a
section 404 permit but any mechanized
landclearing to lay such a line would.
We have dropped "subaqueous" as we
feel the reference is not needed and
confusing. One commenter desired
authorizing maintenance of
landclearing. Most maintenance consists
of cutting the wetland vegetation above
the soil, which is not regulated under
section 404 when the soil is not
disturbed. If maintenance of a utility
line corridor involves landclearing as
defined in 33 CFR 323.2(d)(l), it would
require additional authorization.
One commenter was confused about
the "single and complete project"
requirement for an NWP combined with
an individual permit in relation to the
required section 10 permit for utility
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65885
lines crossing navigable waters. The
NWP authorization covers the
excavation and backfill portion in
conjunction with the remaining single
and complete portion of the line that
Qontinues beyond the navigable water,
usually in wetlands. "Single and
complete" for a linear project under .the
NWPs is defined at 33 CFR 330.2 (i);
briefly, a linear project is single and
complete at each widely separate water
crossing. Also, the navigable water
portion of the structure (utility line)
required a permit under section 10
because it was not included in NWP 12
authorization. Although we have added
section 10 to NWP 12, the single and
complete provision for linear projects
remains in effect.
In the past, NWP 12 has not included
Section 10 authorization, which has
added an individual permit procedure
(usually a Letter of Permission) to the
authorization of a utility line in
navigable waters. The Corps has
decided to add section 10 authorization
to minimize the administrative
procedures and decrease the time
needed for authorization. However, we
are requiring a PCN for review of
navigation impacts and requiring
procedures for notifying the National
Oceanic Atmospheric Administration
for charting the utility line to protect
navigation.
A few commenters were confused by
the term "parallels a water." The Corps
had suggested, in the proposal, that care
should be taken during the placement of
a utility line parallel to a waterbody. We
are concerned with the potential
adverse effects associated with the
placement of a utility line parallel to a
waterbody and, therefore, have modified
and clarified this language. We have
removed the proposed language and
have added a PCN requirement for the
placement of a utility line within a
water of the United States parallel to a
stream and have clarified that "parallel
to a stream" means installation of a
utility line lengthwise to the bed of the
stream. Furthermore, we have added a
PCN requirement for proposed projects
that would involve placing utility lines
along stream beds (see discussion
above). Two commenters suggested
clarifying whether the NWP included
discharges for access roads and
foundations for structures supporting
overhead transmission lines. Structural
fills for overhead utility line supports
are often permitted by NWP 25. Access
roads could be authorized by NWP 14
or 26 in some cases. The Corps has
clarified that mechanized landclearing
is authorized for overhead utility lines
as -long as the width is kept to-the
. minimum necessary. Furthermore, as
discussed above, we have added a
Corps-only PCN for landclearing
forested areas. Access roads and
foundations for overhead lines are not
authorized. NWP 12 is reissued with
modifications as discussed above.
13. Bank Stabilization: The Corps
proposed no changes to this NWP. Two
commenters wanted to keep the current
language of the nationwide permit with
no changes, while another expressed
general support. Several commenters
objected to limitations on length of
project area or quantities of fill,
particularly for flood control structures.
A few commenters stated that the
limitation of one cubic yard of fill per
linear foot should not include any
earthen backfill to return the bank to a
former footprint, and that the limitation
should apply only to fills that encroach
into the pre-existing waterway. Their
reasoning is that this would allow
reconstruction of failed levees and road
embankments and would not result in a
loss of wetlands or jurisdiction relative
to the pre-failure condition. These ••
commenters also note that the
prohibition of any fill in any special
aquatic site is a restriction that unduly
constrains projects and often renders
this NWP inapplicable. They
recommend that impacts to special
aquatic sites of up to 0.1 acres be
allowed without notification, and that
greater acreage be allowed with
notification. These commenters further
recommend that use of biotechnological
slope protection or other methods
relying on vegetative stabilization be
allowed greater PCN thresholds to
encourage such usage.
We believe expansion of the scope of
this NWP would result in a potential for
more than minimal adverse effects. The
permit is designed specifically for the
protection of existing bank lines at the
time of protection and does not
authorize filling to restore the original
bank line or any other intermediate
alignment of the bank. Adjustment in
the alignment of the bank is allowed
only for reasonable and practical design
and construction considerations within
the limitations of NWP 13.
Two commenters recommended
removing the special aquatic site
restriction for ephemeral watercourses
when there is no flow under the premise
that such areas are defined as wetlands
under a broad definition. These
commenters also recommend that the
nationwide permit recognize that there
is. likely to be a construction zone 30
feet or greater along the bank within
jurisdictional areas where project
impacts will be incurred for installation
of bank protection.
We disagree that wetlands in
ephemeral systems are necessarily of
lesser value than other waters simply
because they do not contain water at all
times of the year. Therefore, removal of
special aquatic site restrictions is not
warranted. We do recognize that certain
bank stabilization projects necessitate
keying in the toe of the slope to ensure
adequate protection, and that such work
requires a construction footprint that
will impact additional areas beyond the
waters of the United States. If any such
adverse effects are likely to be more
than minimal for a particular
waterbody, the Corps will add regional
conditions to ensure that only minimal
adverse effects will occur.
One commenter stated that
notification is an unnecessary level of
Federal review, and that it usurps the
states' authority to assess site-specific
impacts to water quality under section
401,
This is not an expansion of authority
because notification has been a
condition of this nationwide permit
since its last re-authorization in January.
1991. Likewise, it does not usurp the
authorities of the states pursuant to
section 401 of the Clean Water Act. A
state may condition its 401 water
quality certification for this NWP so that
it will review projects over 500 feet in
length, and issue or deny site-specific
section 401 certification.
Many commenters were opposed to
the reissuance of this nationwide permit
because they perceived it to be used in
ways inappropriate to its intended use,
such as a precursor to channelization of
watercourses. Specifically, they
suggested that permittees might use this
nationwide permit to construct flood
control works, and how riprapping
affects existing hydrology with adverse
effects on habitat and adjoining
properties. Several commenters stated
that this nationwide permit should
specifically exclude channelization,
noting that bank stabilization projects
can adversely affect habitats adjacent to
jurisdictional waters that may support
plant or animal populations that are
equally limited. We agree that
channelization is an inappropriate use
of this nationwide permit. It is the
responsibility of each district to
determine whether a particular project
is contributing to greater than minimal
cumulative adverse effects, and to
exercise discretionary authority if they
believe such effects are occurring.
' Several commenters noted that this
nationwide permit should be used
selectively on a regional or watershed
basis to prevent cumulative adverse
effects in sensitive habitats. Others
stated that this nationwide permit needs
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better monitoring and compensatory
mitigation, or should always require
compensatory mitigation. One -
commenter stated that this nationwide
permit should not be used in
conjunction with any other nationwide
permit.
We believe the provisions for regional •
conditioning and asserting discretionary
authority will ensure that greater than
minimal adverse effects do not occur.
Mitigation is being required where
appropriate to achieve minimal adverse
effects, but we do not believe that all
bank stabilization projects require
mitigation because many projects have
minimal effects, in fact often positive
effects, on aquatic resources without
mitigation. For example, riprap on an
eroding barren bank will typically
increase habitat diversity and reduce
turbidity in downstream waters.
One commenter stated that because
erosion has occurred after some projects
permitted under this nationwide permit
were constructed, the Corps should not
reissue it unless it can demonstrate that
such projects will perform as expected.
Another commenter noted how some
projects of inadequate design integrity
would eventually wash downstream
with potentially adverse effects on water
quality, aquatic habitat, public safety,
and aesthetics.
The Corps evaluates projects to
determine if they are in compliance
with Clean Water Act requirements,
including whether the project will only
result in minimal adverse effects for
NWPs, and to ensure that they are not
contrary to public health or safety. We
believe that the bank stabilization
methods employed are generally
effective even in cases where there is no
reporting to the Corps. Although a
washout of shore protection could
occur, such unusual flows would also
wash out unprotected shorelines and
structures or natural features such as
trees, rocks, and the like, all of which
would wash downstream.
One commenter questioned whether
this nationwide permit could be used in
lieu of NWP 2 for stabilization projects
in artificial canals. Another commenter
recommended that this nationwide
permit should be used only on artificial
canals.
NWP 13 can be used in lieu of NWP
2 where appropriate. However,
restricting its use only to artificial
canals would unduly restrict its utility.
Several commenters recommended
retaining the notification requirements,
particularly for those projects in excess
of 500 linear feet. Several commenters
called for lowering the PCN threshold to
100, 200 or 300 feet to more
appropriately address cumulative
impacts. One commenter suggested that
the cubic yardage limit for notification
be 100,000 cubic yards. Several
commenters stated that the nationwide
permit should specifically mention the '
types of bank stabilization allowed, with
an emphasis on methods that did not
include landscaping. lylany others
recommended excluding certain
materials such as gravel, asphalt, tires,
automobiles, building;rubble, poured
concrete, driven sheet|piles, and
structural timber bulkheads. Two
commenters stated that projects
authorized under this nationwide
permit should not include seawalls or
bulkheads on open or natural shorelines
and should not allow backfilling for the
purpose of creating fast land or
reclamation. Three commenters stated
that use of concrete rubble should only
be used if it meets acceptable riprap
standards for size and density, is free of
contaminants, is faced with acceptable
rock riprap, and has all rebar cut flush
with the surface.
We believe the terms and conditions
that prohibit discharges in special
aquatic sites (including wetlands)
prohibit the use of unsuitable and toxic
materials, limit the shpre stabilization to
1 cubic yard per linear foot, and require
that the proposed stabilization be the
minimum necessary, are sufficient to
alleviate these concerns. In some cases
where the adverse effects could be more
than minimal (i.e., discharges on more
than .500 feet of shoreline, and/or greater
than one cubic yard per linear foot of
shoreline) notification; to the DE is
required. Also, where potentially high
value aquatic resources may be
impacted with less than 500 feet of bank
protection, the Corps division can
regionally condition NWP 13. The
intent is to accommodate a wide range
of users, techniques and materials with
minimal time delay and maximum
protection of valuable wetland
resources. NWP 13 is reissued without
change.
14. Road Crossing: The Corps
proposed no changes to this NWP. Many
commenters suggested that this NWP
should not be reissued or should be
modified for a number of reasons
including the following: it should not be
used for large road projects with
multiple wetland crossings; the breadth
of the road crossings are not
constrained; the acreage allowance
should be reduced; and this NWP is
most frequently stacked with other
NWPs, causing adverse effects to exceed
minimal. A few commenters
recommended that a maximum acreage
impact limit be applied to large road
projects with multiple crossings of
waters of the United States (including
wetlands and other special aquatic
sites).
The Corps regulatory policy regarding
linear projects and what constitutes a
single and complete crossing is well
established (RGL 88-6). Individual
channels in a braided stream or
individual arms of a large, irregularly-
shaped wetland or lake, etc., are not
separate waterbodies. For linear
projects, the single and complete project
requirement for individual NWPs will
be applied to a waterbody at a single
location. That is, each waterbody
impacted by a roadway will be
considered a single and complete
crossing at that location. Where .a
roadway intersects a single waterbody
such as a meandering river at separate
but distinct locations, each crossing is
considered a single and complete
crossing. The purpose of the "single and
complete" language is to preclude
situations where one project will
repeatedly crisscross one waterbody
when such multiple crossings can be
practicably avoided.
Several commenters expressed
support for this NWP as proposed.
Others indicated that there should.be no
limits on the length or area of a crossing.
Two commenters suggested that the
NWP 26, 1 to 10 acre provision be
incorporated and that acreage be the
only controlling limit. Two other
commenters recommended the length be
increased to 400 linear feet and one
suggested that the acreage be increased
to acre. A few commenters opposed the
inclusion of the "Notification" general
condition in this NWP.
We carefully considered the
suggestions to limit the width of the
roadway as well as to expand the length
and maximum acreage for the roadway.
We concluded, however, that the limits
in the NWP as proposed represent a
tested balance. With regard to stacking
NWP 14 with other NWPs, we have
conditioned this NWP to not allow NWP
18 or NWP 26 to be combined with it
for the purpose of expanding the
allowable road crossing footprint. In
addition, a Corps-only PCN is required
any time this NWP is combined with
any other NWP. (See discussion on
"Stacking of NWPs" in section II
above.). NWP 14 is reissued with the
modification discussed above.
15. U.S. Coast Guard Approved
Bridges: The Corps proposed no changes
to this NWP. A few commenters
expressed concerns about the impacts
associated with the construction of
access fills, fill removal, and restoration
of preconstruction grades. Another
commenter was concerned about
revegetation with native species after
completion of such preconstruction •
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€5887
grade restoration activities. One
commenter encouraged inclusion of
conditions to require excavation and
removal of old approach fills when they
have been replaced. Another commenter
stated that the impacts related to Coast
Guard bridges can be significant and
that issuance of the NWP contributes to
an incomplete and less than thorough
review by the Coast Guard. A few
commenters felt that the Corps'had
inappropriately delegated Section 404
responsibility to another agency.
Based on the requirement of this NWP
and the ability of the DE to assert
discretionary authority should the
nature of the impacts warrant, we
believe that this NWP is an efficient
means .to regulate the construction of
bridges. The regulations also allow for
the development and inclusion of
conditions to address particular project
aspects such as removal of old approach
fills, revegetation specifications, etc.
The comments regarding the delegation
of regulatory authority are apparently
• based on the misinterpretation of the
permit language. The Coast Guard has
been given the task of reviewing such
bridge construction pursuant to section
9 of the Rivers and Harbors Act of 1899.
A Department of the Army permit
pursuant to section 404 of the Clean
Water Act is still required for the
discharge of dredged or fill material into
waters of the United States associated
with the construction of the proposed
bridges and causeways. NWP 15 is
reissued without change.
16. Return Water From Upland
Contained Disposal Areas: The only
change the Corps proposed to this NWP
was a change in wording to note that, in
certain circumstances; dredging may
now require a section 404 permit. One
commenter requested that, the NWP
require an NPDES permit. A couple of
commenters recommended that the
NWP not be applicable to dredged
material taken from areas of known
sediment contamination or where there
is reason to believe that the discharge is
contaminated. A few commenters stated
that water quality violations could
result from the NWP unless it is limited
to the activities authorized by, and
operating in conformance with,
currently valid permits.or exemptions.
One commenter suggested that all return
water be tested for contaminants. A
couple of commenters thought that the
original text and the clarification were
unclear without specifying when the
activity may require a section 404
permit relative to the excavation rule, or
when a section 10 permit may be
required.
This NWP authorizes the return of '
effluent to waters of-the United States
from upland contained disposal areas,
. and is not intended to address the
dredging activity. However, a
Department of the Army permit
pursuant to section 10 is required for
structures or work in, or affecting,
navigable waters of the United States, as
that term is defined in 33 CFR parts 322
and 329. A Section 404 permit is
required for any addition or
redeposition of dredged material
associated with any activity that
destroys or degrades a water of the
United States as defined in parts 323
and 328, unless the discharger
demonstrates to the satisfaction of the
Corps or EPA, as appropriate, prior to
the discharge, that the activity will not
have such an effect. The effluent subject
to NWP 16 has been administratively
defined as a discharge of dredged
material. Based upon Corps experience
' and knowledge of dredging and disposal
operations, we believe that the
technology is readily available to
control the quality of the return water
from contained upland disposal sites. •
Any adverse environmental effects
resulting from this type of activity
would be minimal, provided the
effluent meets established water quality
standards and adequate monitoring of
the activity is performed to assure
compliance with these standards. With
this in mind, it is our intent to provide
the states an' opportunity to review each
activity under this NWP authorization
to assure compliance with state water
quality standards. We see no need to
require additional state review unless
the.water quality certification for the
NWP has been denied. The prospective
permittee must receive an individual
certification or waiver from states that
have denied water quality certification
for the NWP authorization. The Corps
has no authority to determine NPDES
program requirements. NWP 16 is
reissued with the proposed changes.
17. Hydropower-Projects: The Corps
proposed no changes to this NWP. The
comments received addressing NWP .17
were all related to the potential impacts
associated with hydropower projects
and stated the position that NWP 17 is
contrary'to the NWP program's
provision allowing only activities of
similar nature and of minimal impacts.
We are maintaining the notification
requirement for this NWP to enable us
to assess the nature of the impacts
associated with each project and
whether to exert discretionary authority.
In addition, the Federal Energy
Regulatory Commission has the
•responsibility of examining
environmental impacts for those small
hydropower projects at existing
reservoirs. NWP 17 is reissued without
change.
18. Minor Discharges: The Corps
proposed a modification to the.wording
of this NWP to clarify how the Corps
measures excavation activities for the
purpose of determining compliance
with the NWP. This was based on
existing guidance developed after the
Corps revised the definition of
"discharge of dredged material" at 33
CFR 323.2(d) to clarify when the Corps
regulates incidental discharges of
dredged material associated with
excavation activities. (See August 25,
1993, Federal Register, 58 FR 45008.)
Based on this existing procedure, this
clarification does not affect the number
and type of activities that^are regulated
under this NWP. When measuring the
quantity of the discharge of dredged or
fill material, the Corps will include the
volume of any excavated area (i.e., the
volume of the substrate excavated)
which is below the plane-of the ordinary
high water mark (OHWM) or high tide
line (HTL). Many commenters expressed
uncertainty regarding how to measure
the 25 cubic yards of discharge
authorized by this NWP. Some
commenters requested that the
allowable area of impact be increased to
2/10 acres. The Corps continues to
believe that the current:volume and-
acreage limits are, and have proven to
be. appropriate to ensure that the
adverse effects are no more than
minimal for the purpose of
authorization by this NWP and is not
changing those limits. We are providing
the following guidance to clarify how
NWP 18 quantities, are measured.
How to determine quantities under
NWP 18: NWP 18 applies to all waters
of the United States. For projects that
are;
Below and waterward of the OHWM
or HTL:
Volume: The cubic yardage of any
dredged or fill material placed; plus,
The cubic yardage of the substrate
excavated.
Acreage: The acreage of any areas that
are filled, excavated, flooded and
drained. •
Landward of the OHWM or HTL:
Volume: Not applicable. Only acreage
limits apply.
Acreage: The acreage of any areas that
are filled, excavated, flooded and
drained.
For projects that are both below and
waterward of the OHWM or HTL and
that are landward of the OHWM or HTL,
the acreage is the sum of the two
acreages' as determined above, while the
volume is that measured below and
waterward of the OHWM or HTL. For
example, a permittee may place 50
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cubic yards in a wetland landward of
the OHWM provided the fill does not
exceed Via of an acre and the District
Engineer determines that the impacts
are minimal. In this example, there was
no material placed below and
waterward of the OHWM or HTL,
therefore the cubic yard (volume) limit
was zero and not exceeded.
Furthermore, the total acreage was less
than Vio acres. NWP 18 may be.
combined with NWP 19 to authorize
activities in navigable waters of the
United States (i.e., Section 10 waters).
NWP 18 is issued as proposed.
19. Minor Dredging: The Corps
proposed a modification to this NWP to
authorize, under section 404 of the
Clean Water Act, the incidental
discharges associated with the dredging
activities in navigable waters of the
United States. This was necessary after
the Corps revised the definition of
"discharge of dredged material" at 33
CFR 323.2 (d) to clarify when the Corps
regulates incidental discharges of
dredged material associated with
excavation activities. (See August 25,
1993, Federal Register. 58 FR 45008.)
This clarification does not affect the
number and type of activities that are
regulated under this NWP. Many
commenters supported keeping the
quantity limit at the existing level. We
agree and continue to believe that the 25
cubic yard limit is acceptable. We have
allowed and will continue to allow
NWPs 18 and 19 to be used for the same
project in section 10 navigable waters of
the United States. NWP 19 cannot be
used in section 404-only waters. We
believe that the requirement of NWP 19
that prohibits excavation in wetlands,
coral reefs, sites supporting submerged
aquatic vegetation, and anadromous fish
spawning areas, and the requirement of
NWP 18 that requires notification in
special aquatic sites, including
wetlands, and the requirement of NWP
18 that requires notification in excess of
10 cubic yards, will ensure that impacts
resulting from these activities will be
minimal. For example no more than 35
cubic yards could be excavated from
navigable waters of the United States
without a notification to the Corps.
Furthermore, no activity between 35
and 50 cubic yards of combined
excavation and discharge could occur
without a notification to the Corps and
a Corps determination diat the adverse
effects would be minimal. NWP 19 is
issued as proposed.
20. Oil Spill Cleanup: The Corps
proposed no changes to this NWP. One
commenter suggested a regional
condition to require that activities be
conducted in conformance with the
.National Response Team Integrated
Contingency Plan Guidance.-Even
though this guidance;is used to assist an
applicant to develop one plan to satisfy
several applicable laws, it is strictly
voluntary on the applicant's part to
develop one consolidated response
plan. The Corps belieVes it is most
important to verify that the response is
conducted in accordance with the Spill
Control and Counterrneasure Plan
required by 40 CFR 1J12.3 and any
existing state contingency plan, and that
the regional response1 team (if one
exists) concurs with the proposed
containment and cleanup effort. This
NWP authorizes the structures and fills
used to effect the oil spill cleanup.
Other Federal and state agencies have
lead responsibility to administer oil
pollution laws. NWP 20 is reissued
without change.
21. Surface Coal Mining Activities:
The Corps proposed the consideration
of expanding this NWP for mining
activities on previously mined lands
that have not been subject to restoration.
Several comments sujpported the
proposed inclusion of previously mined
areas and a few expressed opposition.
Some commenters stated that this
proposal should not apply to wetlands
restored under the Surface Mining
Control and Reclamation Act (SMCRA)
of 1977 or NWP 27. Another commenter
questioned whether the NWP applies to
pre-1977 SMCRA. Comments about
mitigation presented 'a wide range of
possibilities: Support for on-site
mitigation after completion of mining;
mitigation ratio should be set at 1:1 on-
site as proposed; flexibility is needed to
apply mitigation on-s,ite and/or off-site;
and mitigate off-site before mining
begins; mitigate concurrent with
mining. One commenter stated that
restricting the mitigation to on-site
would economically stop a mining
operation. Many commenters opposed •
the bond, stating that this is already
required by the SMCRA and at least
some state agencies.
The remining of abandoned areas
requires application under Title V of the
SMCRA. As with new mining, the Office
of Surface Mining (OSM) coordinates
such proposals with the Federal and
state resource agencies and determines
whether or what mitigation is required.
The Corps has decided that specific
language referencing remining
abandoned mines is not required within
the nationwide permit text. The NWP,
as worded, will allovj/ remining of
abandoned mines. The Corps will
Strongly encourage remining of
abandoned mines where the wetlands
are of low value, rather than mining
new areas with wetlands that were not
previously disturbed. The Corps will
review the Title V application for
compliance with the NWP. The Corps
will only require a bond for mitigation .
when OSM or the state agency has not
required a bond. Requiring a bond in
certain cases is consistent with existing
policy. (See 33 CFR 325.4).
One commenter expressed concern
over the area impacted (i.e., ancillary
activities). The NWP specifically applies
only to the coal excavation area.
Additionally, any facilities, such as
buildings, to be placed in waters of the
United States would require separate ;
authorization by the Corps. :
Several comrhenters desired
restrictions such as set-backs, no stream
relocations, no impacts to wetlands
which would be difficult to replace, and
acreage limits. Another requested an
exemption from mitigation for certain
chemical compositions of the wetland
soil. We believe that each case will be
so specific that it is best reviewed case-
by-case.
A couple of commenters stated that :
the Corps was delegating its authority to
the OSM and that this NWP did not
comply with section 404(e).'Minimizing
duplication of Federal regulation is one
of the goals of the President's Wetland
Plan and is one of the principal
purposes of NWP 21. We believe that
the Corps should not duplicate the
intensive review performed by OSM in
coordination with other Federal and
state resource agencies. OSM complies
with the same Federal environmental
laws, such as National Environmental
Policy Act. Fish and Wildlife
Coordination Act, Endangered Species
Act, and National Historic Preservation
Act as the Corps does in executing its
regulatory program. The Corps reviews
the Title V information to assure that
the impact analysis and mitigation are
in compliance with the Corps policy
and regulations. The NWP authorization
is not valid until the mining activity has
been authorized by OSM or by a state
with an approved Title V program. To
assure that the Corps receives a
complete application, we have revised
the NWP to include a requirement for an
OSM or state-approved mitigation plan.
NWP 21 is reissued with the
modifications described above.
22. Removal of Vessels: The Corps
proposed no changes to this NWP.
However, a few commenters requested
that the term "minor fills" be the same
as that for Nationwide Permit 18y and
one commenter requested that this NWP
require a PCN that would specifically
require contacting the State Historic
Preservation Officer (SHPO) to ensure
against damage to vessels potentially
eligible for listing in the National
Register. Another commenter requested
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65889
' notification to the SHPO since the
Abandoned Shipwreck Act gives states
title to, and management authority of,
certain shipwrecks.
The criteria described in Nationwide
Permit 18 for minor discharges of
dredged or fill material could be used as
a guide in evaluating the environmental
impacts, but is not meant to be a
definition of "minor fill". This term is
intended to be subject to the DE's
interpretation on a case-by-case basis as
a project is being evaluated. The
existing language of NWP 22 does not
allow its use for any ship or vessel that
is listed or eligible for listing unless the
district determines that the activity
complies with the National Historic
Preservation Act. The Corps will, in any
particular case, coordinate with the
SHPO regarding historic properties,
including concerns with regard to the
Abandoned Shipwreck Act. We believe
that the restrictions within this NWP in
conjunction with General Condition 12
and the Corps regulations at 33 CFR
330.4 (g), are sufficient to protect against
damage to historic properties. NWP 22
is reissued with no changes.
23. Approved Categorical Exclusions:
The'Corps proposed no changes to this
NWP. A few commenters supported
expansion of Nationwide Permit 23 to
cover state environmental program
approvals, especially for flood control'
work, and all emergency work by a
public agency.
State programs are not required to
comply with NEPA and states have
varying environmental protection
programs. Therefore, the Corps cannot
base a nationwide permit on state
approvals as NEPA Categorical
Exclusions (CE). Regional and
programmatic general permits are
effective tools that can be developed at
the district level for state programs that
meet or exceed the Federal CWA
requirements. Emergency work can
normally.be authorized under other
nationwide permits such as NWP 3 and
37, or the Corps emergency permit
authority.
A few commenters requested the
NWP be regionalized with regional
conditions and asked that districts
publish public notices for proposed CEs
and lists of approved CEs. The Division
Engineers have the authority to add
regional conditions to any nationwide
permit and are currently in the process
of considering recommendations for
conditions on these nationwide permits.
All CEs are available in the Federal
Register and we intend to make them
available on our Internet homepage
which is currently being developed.
A number of commenters. opposed
continuation of the existing nationwide
permit. They stated that the permit is
often misused, especially by the
Highway Departments. Most of these
commenters called for revision of NWP
23 to require periodic review (every 5
years at the renewal of the general
permit) and assessment of approved CEs
(citing new knowledge and outdated
agency Environmental Assessments)',
limits on the area of wetlands that may
be impacted (similar to Nationwide
Permit 26), and limiting (to 25-50 feet)
or excluding stream channelization.
Some commenters called for excluding
bridges and culverts in those streams
that support fish, and excluding stacked
concrete slabs that create low water
dams.
The Corps does, upon being furnished
a notice of an agency's CE, solicit public
comment, and review the CE for
approval for authorization by this
nationwide permit. We may include
conditions for authorization as a part of
that approval. This is an ongoing
process and the U.S. Coast Guard has
recently updated their CEs and
requested approval for authorization
under the NWP. RGL 96-1 has already
been issued for Coast Guard CEs and we
will soon publish our findings and
determinations in the Federal Register.
We will continue to monitor the CEs
approved for authorization under this
nationwide permit and make
adjustments through changes in
conditions, new approvals, and removal
of previously'approved CEs when
warranted. General Condition 4
prohibits substantial disruption of
movement of aquatic life species
indigenous to the waterbody.
Some commenters called for not
renewing Nationwide Permit 23 due to
misuse, violations of 404(e), and illegal
delegation to other agencies of the Corps
determination of which projects are
subject to Clean Water Act review.
We believe the Corps current review
process of the lead agency's decision
ensures that the CE is not misapplied.
The Corps does not necessarily approve
all of an agency's CEs. Only those
consistent with the NWP program are
approved. Furthermore, in the recent
action on the Coast Guard CEs, the
Corps requires a PCN for some actions
with the potential to result in more than
minimal impacts.
One commenter requested that we
require a cultural resources inventory
before approving CEs.
Compliance with cultural resource
requirements is the responsibility of the
lead Federal agency. CEs are developed
in accordance with NEPA. All other
Federal environmental laws and
regulations, including the cultural
resource and historic preservation laws,
must still be satisfied by the agency
proposing the CE. NWP 23 is reissued
without change.
24. State Administered Section 404
Programs: The Corps proposed no
changes to this NWP and the only
commenter providing comments
specific to the permit expressed support
for this nationwide permit as written.
NWP 24 is reissued without change.
25. Structural Discharge: Corps
proposed clarification that this NWP
may be utilized for general navigation
purposes. A few commenters
recommended issuance of this' NWP as
proposed. One commenter stated that
this NWP should not be reissued
because it has not been demonstrated
that the adverse environmental effects
are only minimal, and that individual
permits provide greater protection to
environmental resources. We believe the
impacts resulting from the portion of
these projects regulated by the Corps are
typically very small and localized. Any
project can be further conditioned to
ensure that adverse effects are minimal
or mitigated appropriately, if necessary.
If it is determined that any particular
project would not qualify for this NWP
because adverse effects are not minimal,
the DE can exercise discretionary
authority and instruct the applicant on
the procedures to seek authorization
under an IP.
One commenter requested.
clarification of the significance of
changing the previously worded "piers
and docks" to "mooring cells". Another
commenter stated that "docks and
piers" should be specifically included,
noting the current authorization does
include such wording.
We recognize that piers and docks are
not mentioned in this NWP; however,
they would be covered if their
construction.methods entailed discharge
of material into tightly sealed forms or
cells. We do not feel it necessary to
specifically include piers and docks,
because their construction often
requires driving piles, which typically
does not require a Section 404 permit.
The structure itself may require a
Section 10 permit if located in navigable
waters of the United States.
One commenter stated that this NWP
should include well pads for
monitoring, and surveillance wells used
for monitoring pollutants and
groundwater parameters of aquifers.
We.do not believe it is necessary or
appropriate to include such uses under
this NWP, because Nationwide Permit
18, covering Minor Discharges, would
be more suitable.
One commenter noted that this NWP
does not propose any limitations.
Several others recommended limitations
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on this NWP, including no more than 20
mooring cells, size thresholds such as
less than 8,000 square feet for pile-
supported structures, or spacing
between piles of at least six feet. Two
commenters stated that this NWP
should authorize the side-casting of
material for placement of the forms or
construction of pile caps. One
commenter stated that mechanized
landclearing for access to the project site
for the placement of structural members
should be authorized by this NWP. One
commenter recommended that this
NWP specifically not authorize river
boat mooring cells for gambling
purposes.
We believe that the actual footprint of
project impacts typical of the types
discussed in the NWP are limited
sufficiently such that further limitations
are not necessary. However, each
district may implement special
conditions or regional general
conditions on a case-by-case basis as
deemed necessary. We agree that side-
casting of material for construction of
pile caps is appropriate provided it is
kept to the minimum necessary, that
material is not placed in such a manner
that it is dispersed by currents or other
forces, and that preconstruction
contours are maintained. However, we
do not believe that mechanized
landclearing to access the project site
should be authorized under this NWP.
Finally, we do not see the significance
of differentiating between mooring cells
used for general navigation purposes
versus those that may be used for
mooring of gambling vessels. NWP 25 is
reissued %vith the proposed clarification.
26. Headwaters and Isolated Waters
Discharges: The Corps proposed two
options to change the previous
thresholds associated with this NWP
and committed to regional conditioning
of the NWP to ensure minimal adverse
effects. Numerous comments were
received and are addressed by categories
in the following text. Based on the
recommendations from the public and
other agencies, as well as the Corps
internal review of implementation of
NWP 26 over the past 5 years, we have
made substantial changes to the permit.
We have reduced the thresholds of NWP
26 to Vh and 3 acres, added a limitation,
forlinear waterbodies of 500 linear feet,
and stated that we believe that most
projects above Vs acre will result in
mitigation requirements to offset
adverse effects to the aquatic
environment. We believe that these
additional limitations that we have
placed on NWP 26 will greatly improve '
the environmental protection afforded
by Corps review of projects under this
NWP and will better ensure that no
more than minimal adverse effects will
occur. In addition to the substantial
limitations that we have placed within
the terms and limitations of the NWP 26
at the national level, we are directing
our districts to carefully evaluate the
aquatic systems in their districts and,
working with the Corps divisions and
the other Federal and state agencies, add
additional limitations as necessary for
added protection of the aquatic '
environment. These changes are
detailed below in our discussion of the
comments we received.
General: More than 500 commenters
provided comments specifically
addressing NWP 26. Numerous
commenters expressed opposition to
NWP 26, expressing concern that NWP
26 authorizes activities that are not
similar in nature and lactivities that have
greater than minimal impacts both
individually and cumulatively,
concluding that NWPi 26, in many cases,
is therefore, "illegal".| Many of these
commenters believe that the NWP
should be deleted while many
acknowledge a necessity for such a
nationwide permit, but feel that the
NWP must be modified to respond to
the growing concerns for the potential
cumulative effects resulting from
activities authorized by this permit.
Many of these commenters also
expressed concern that wetlands
impacted by NWP 26 i(those above
headwaters and isolated wetlands) are
as valuable, if not more so, than other
wetlands to which NWP 26 does not
apply. These commenters state that
there is no scientific evidence that
supports the concept 'that these
wetlands are of less value and refer to
a 1995 National Academy of Sciences'
National Research Council Report,
which states: "the scientific basis for
policies that attribute less importance to
headwater areas and isolated wetlands
than to other wetlands is weak." Some
of these commenters also commented
that there is no scientific basis for the
threshold limits.
Numerous commenters expressed the
view that the NWP has worked well,
that there is no evidence to indicate that
it is resulting in more than minimal
adverse effects and that the loss or
further limiting of NWP 26 would result
in increased regulatory burdens on the
public, less regulatory certainly,
unacceptable work load increases for
the Corps, increased processing times,
project delays, and an overall lessening
of the regulatory program's ability to
protect waters of the United States.
The Corps propose^ 3 options for
acreage limits that would define when
a PCN must be submitted. These options
were:
Option 1: 1 to 10 Acres (no change)
Option 2: Vz to 5 acres
Option 3: Vb to 3 acres •
Thresholds: Approximately 70% of
the more than 400 comment letters on
these threshold options expressed a :
preference for Option 1, no change in
the thresholds of 1 and 10 acres.
Many of these commenters suggested
that a lowering of the thresholds would
result in a lessening of the practice by i
developers of minimizing their wetland ,
fills to fit under the thresholds because ,
the thresholds would be too low to
meet. The result then being, that they
would be forced into the PCN or
individual permit process and would
apply for non-minimized fills. Many
commenters also estimated that the
Corps work load would increase
significantly,- thus causing the Corps to
be less effective in its mission to protect
wetlands. A few commenters believed
that in those cases where mitigation is
required for all fills (often a state or
county requirement), that the effect of ;
causing developers to reduce fill areas
to even smaller fills (by lowering the
threshold to 1/3 of an acre) could be
more, smaller mitigation sites.
A few commenters preferred changing
the thresholds to option 2.
Approximately 30% of those
commenting on this subject preferred '.
option 3, (Vb & 3 acres). Most of these
commenters expressed the view that the
current thresholds are allowing more
than minimal adverse effects and that
the lower levels would, better assure that
the NWP would not result in more than
minimal adverse effects.
A few commenters recommended that
the thresholds be increased to enhance
flexibility and program efficiencies.
The Corps acknowledges the
concerns, expressed principally by >
natural resource agencies and
environmental groups, for the potential
level of adverse effects resulting from
NWP 26 in its present form. The Corps
also acknowledges the concerns of the
regulated public for the potential
lessening of regulatory certainty and
flexibility in the program through
further limitation of the scope of NWP
26.
The Corps agrees that- the level of
cumulative adverse effects under NWP
. 26 must be reduced and more effectively
mitigated. We will later discuss trie
manner in which the Corps has
addressed the concerns regarding
impacts to the aquatic environment. We
also believe it is important to
understand the history and derivation of
the Corps NWP program.
In 1977, the Corps developed the [
headwaters and isolated waters
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' nationwide permit
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also have the authority to exercise
discretionary authority and require an
IP on a case-by-case basis when they,
determine that the "minimal adverse
effects levels" will be exceeded.
Furthermore, we are directing district
and Division Engineers to further reduce
Impacts by requiring mitigation for most
projects from '/a to 3 acres through the
PCN process. In most cases, mitigation
for impacts below 1 acre will be most
beneficial through mitigation banks and
"in lieu fee" programs. In lieu fee
programs allow permittees to obtain
mitigation through funds paid to groups
who will use these funds to restore,
create, enhance, and preserve wetlands.
Such groups include states, counties
and land trusts. Such in lieu fee
approach is currently in place and very
successful in the state of Ohio. Our
Huntington district, in conjunction with
the state, established a fee structure for
NWP 26 authorizations. The fees go to
Ohio Department of Natural Resources
and are used to acquire, restore and
manage former wetlands.
Review Period: A large percentage of
those who commented on the proposal
to increase the 30 day pre-construction
notification period, expressed
opposition to the proposal. They
commented that 30 days is adequate and
, that an increase in the review period
would only result in reviewers delaying
their review rather than conducting
more extensive reviews; that more
extensive reviews, if conducted, are
unnecessary for projects of NWP 26
magnitude, and that the proposal would
result in an unnecessary extension in
the processing time of what is currently
a good expedited process.
Approximately 30% of the commenters
felt that the increase should be
implemented in order to provide for
more thorough review. One commenter
recommended the elimination of the
"de facto" authorization provision,
because there is no logic to allowing the
elimination of wetlands as a result of
administrative situations.
Having given full consideration to the
comments received and discussed the
topic at length with the resource
agencies involved, we have concluded
that it is necessary to extend the review
period to 45 days while maintaining the
"de facto" authorization provision.
Increasing the review period by only 15
days will, we believe, allow adequate
and efficient review of the increased
number of NWP 26 applications
expected due to the lowering of the PCN
thresholds, and will not place an unfair
burden on the regulated public. The de
facto authorization provision is
considered necessary to provide a
reasonable control on the review period
for these relatively minor actions and to
provide as much regulatory certainty as
possible to the regulated public.
Regionalization: Many Commenters
supported the concept of regionalization
of the NWPs by districts either because
of the opportunity to provide additional
protection to sensitive ecological areas,
as well as more appropriately to provide
protection for regionally differing
environments. I
Many commenters j were opposed to
the concept of regionalization of die
NWPs by districts because of concern
that districts would, unnecessarily,
further limit the applicability of the
NWPs when they have been found by
the Corps to authorize less than minimal
adverse effects nationwide.
, The Corps believes there are benefits
to be gained through regional
conditioning of NWP 26, both for
natural resource protection and for the
regulated public. Guidance being
provided to the districts and divisions
will require that the (districts provide
opportunity for full public review and
comment in the process for establishing
regional conditions, and will require
that they consider modifications of the
acreage limits and limitations of use,
based on types of aquatic resources and
activities. They will also consider
potential impacts to the regulated
public, to district workloads, and the
ability of the district ;to effectively
implement the regulatory program.
Further definition of the permit, through
regional conditions, will provide the
regulated public with increased
certainty and predictability while at the
same time further ensuring against use
of the permit under circumstances that
may cause greater than minimal adverse
effects. The fact that districts and
divisions do regionalize NWP 26
through regional conditions to protect
certain aquatic systems is one of the
reasons that the Corps has determined
that only minimal adverse effects occur
nationwide.
Notification: Several commenters felt
that all actions permitted under NWP 26
should be reported to the Corps to
provide the Corps with full knowledge
of the extent and impacts of such
actions. In general, these same
commenters also suggested that the
Corps keep more extensive records of
this information and make it readily
available to die general public.
One commenter expressed concern for
the lack of data collected by the Corps
with regard to the use of NWP 26 and
the corresponding lajck of analysis to
support the determination that NWP 26
results in no more than minimal adverse
effects. A few commenters expressed the
belief that the Corps is not fulfilling an
earlier commitment to monitor and
evaluate the impacts, of NWP 26.
The reduction of the PCN threshold
from 1 to '/3 acre will significantly
increase the percentage of activities
reported to the Corps and provide an
adequate level of information for '•
continued monitoring of authorizations '
under NWP 26. Notification will have ;
essentially three threshold limits. We
have established a reporting \
requirement for all impacts up to the
minimum threshold of :/3 acre. This [
report, which will include basic
information such as the name of the
permittee, location of the activity,
description of the work, and the types
and size of the impacted area, will be
required within 30 days of the
completion of the work. We are
encouraging support of, and
participation in, this important
information gathering process so the
Corps can better determine ways to
protect wetlands in a fair, flexible and
effective manner. Next, we will require
a "Corps-only" notification for impacts
between ]/3 and 1 acre. These PCNs will
be reviewed by the Corps to assure
compliance with permit conditions, and
to determine what level and type of
mitigation should be required. Finally, •
authorization under NWP 26 will
require full resource agency
coordination under the notification
procedures for impacts between 1 and 3
acres. For all the PCNs, the Corps
review will ensure that no more than
minimal adverse effects will occur and
that appropriate mitigation will be
required.
The Corps collected data from its
district offices on the use of all NWPs
for Fiscal Year 1995, including NWP 26.
The data shows that 13,837 activities
were authorized by NWP 26, impacting
approximately 5020 acres of wetlands,
with an average of 0.36 acres of impact
per NWP 26 authorization. The Corps
received approximately 5809 acres of
mitigation for these impact;;, yielding a
mitigation ratio of approximately 1.15:1.
To ensure continued monitoring of
NWP 26 and all other NWPs, the
Headquarters office will begin collecting
quarterly data from the field beginning
in the second quarter of fiscal year 1997.
The data parameters will include, at a
minimum, the use of the NWPs, both
actual and estimated (for those with
non-reporting thresholds), impact '.
acreage, resource types, geographic
locations (e.g., counties) and mitigation
received. These parameters will be
further set forth in guidance to the
districts following the publication of
this Federal Register notice and after
coordination with the other Federal
resource agencies.
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65893
Mitigation: Several commenters
suggested that a threshold be set-for
requiring mitigation. Some
recommended a threshold of one acre be
set, above which mitigation would be
required and one recommended
mitigation be provided at a 2:1 ratio. A
review of NWP 26 verifications
provided in fiscal year 1995 indicates
that more than an acre of mitigation was
provided for every acre filled. We
believe that this fulfills the national goal
of no net loss in wetlands. We do not
believe it is appropriate to require
mitigation in every case or at a
standardized ratio nationwide. We
believe mitigation determinations are
better established on a local and/or case-
by-case -basis. Therefore, we have not
required a specific ratio as a general
condition of NWP 26. However, we do
believe that most actions involving fill
of 1/3 acres or more will have some
level of mitigation, based on the Corps
determination of aquatic functions and
values lost. Corps districts may establish
fixed ratios for particular waterbodies or
specific types of waters in their areas.
Districts may also set specific in lieu fee
schedules within their areas.
Many commenters raised concerns
that, by applying compensatory
mitigation in the context of a NWP, the
Corps authorizes activities that, but for
the mitigation, may have more than
minimal adverse environmental effects.
Those commenters were concerned that
the CWA requires that only activities
with minimal effects may be authorized
by a general permit. Activities that have
more than "minimal adverse effects are
subject to the individual permit process
and the associated analysis of
alternatives, individual public notice
procedures, and other aspects of
individual review that help to ensure
that potential adverse effects are fully
avoided and minimized before any.
activity is approved.
Given these concerns, the Corps will
be considering whether or not
modifications to the mitigation
provisions of the regulations are
appropriate arid will be meeting with
other Federal agencies to discuss this
issue. In the interim, the Corps is
seeking specific comment on the use of
compensatory mitigation in the context
of the Nationwide Permit program and
any recommendations for modification
to the mitigation provisions. Should the
Corps-determine that revision to this
policy is appropriate, a rulemaking
process to change the regulations at 33
CFR part 330 may'be necessary. This
process would include notice and full
opportunity for public participation.
Subdivisions: One commenter
recommended deleting all wording on
subdivisions except that which clarifies
the single-use applicability of NWP 26.
More specifically the commenter
recommends deletion of the exemption
provisions of the NWP 26 subdivision
rules.
One commenter suggested that
"commercial," "industrial," and
"office" subdivisions should not be held
to the same restrictions as residential ,
development because of their more
extensive level of planning and design.
One commenter suggested that the
October 5, 1984, date for subdivision
exception be changed to January 21,
1992.
We have evaluated these comments
and continue to believe that the
subdivision language in NWP 26 is
appropriate. We do not agree that, as a
general matter, commercial office or
industrial projects are necessarily
subject to better planning than many
large residential developments.
Environmental Impact Statement. A
number of commenters recommended
that an Environmental Impact Statement
(EIS) or study be conducted prior to the
re-issuance of NWP 26, because of their
perception that the use of the NWP is
causing or will cause extensive impacts
to wetlands.
• The Corps collected data from its
district offices on the use of all NWPs
for Fiscal Year 1995, including NWP 26.
These data show that 13,837 activities
were authorized by NWP 26 impacting
approximately 5,020 acres of wetlands,
with an average of 0.36 acres of impact
per NWP 26 authorization. The Corps
received approximately 5,809 acres of
mitigation for these impacts, yielding a
mitigation ratio of approximately 1.15:1.
To ensure continued monitoring of
NWP 26 and all other NWPs, the
Headquarters office will begin collecting
quarterly data from the field beginning
in the second quarter of Fiscal Year (FY)
1997. The data parameters will include,
at a minimum, the use of the NWPs,
both actual and estimated (for those
with non-reporting thresholds), impact
acreage, resource types, geographic
locations (e.g., counties) and mitigation
received. These parameters will be
further set forth in guidance to the
districts following the publication of
this Federal Register notice and after
coordination with the other Federal
resource agencies.
Furthermore, the Corps has conducted
an analysis of the environmental
impacts associated with the re-
authorization of this permit in
compliance with the requirements of
NEPA. This, analysis has been
documented in an Environmental
Assessment in accordance with NEPA
and resulted in a Finding of No
Significant Impact in accordance with
NEPA. Therefore, an EIS is not required.
The Corps believes that the modified
NWP 26 structure, along with regional
conditions and case specific
discretionary authority, will ensure that
adverse effects are no more than'
minimal on a watershed basis. We
believe that it is inappropriate to simply
sum the total acres of impact .
nationwide and assume significant
impacts. We believe that environmental
effects must be viewed on a watershed
basis. With the substantial level of
mitigation required by the Corps for
impacts to the higher value wetlands,
we believe that the environmental
effects are not significant.
Corps Workload: The Corps agrees
with the majority of commenters that a
general permit, such as NWP 26, is
necessary for fair, effective, and efficient
implementation of the Corps regulatory
program. Although the final NWP 26 we
are issuing today will increase the Corps
workload, we believe that overall
workload will remain manageable.
To evaluate the effects of the current
changes to NWP 26 on Corps workload,
we analyzed data collected during
surveys of the Corps districts during
FY94 and FY95. Additionally, data.from
quarterly reports was used to determine
IP workload. We estimate that the
changes we are implementing today will
increase the number pf PCNs for NWP
26 (due to the lowering of the PCN
threshold) by nearly 10,000, compared
. to the estimated 2,700 evaluated in
1996. However, the vast majority of the
additional 10,000 additional PCNs will
be Corps-only evaluations. We estimate
that the NWP 26 we are issuing will
result in approximately 500 additional
individual permits nationally
(approximately a 10% increase over
Fiscal Year 1996). This increase will be
due to applicants requesting IP
authorization of projects with impacts
greater than 3 acres, but which would
have qualified for verification under the
old NWP 26 guidelines. The Corps
would not be in a position to evaluate
all, or even a majority, of the activities
we currently authorize under NWP 26
without severe impacts to the Corps
responsiveness to the regulated public.
The Corps regulatory program verified
approximately 14,000 NWP 26 actions
(including both 'those projects for which
• a PCN was required and those for which
no PCN was required but verification
was requested) and evaluated 5,040 IP
actions in FY96. The workload
associated with the additional
processing of just the 14,000 currently
verified NWP 26 cases as IPs, would
increase the IP work load by a factor of
4 to approximately 29,000. An IP
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workload increase of this magnitude
would render the program ineffective,
and would be a disservice to the
American public and overall
environmental protection. Additionally,
it Is estimated by Corps districts that
another 20.000 NWP 26 activities were
accomplished during FY96 without the
requirement for reporting to the Corps.
Complete elimination of NWP 26 would
result iri an increase in the IP workload
by approximately seven fold. This level
of Increase would greatly extend the
processing time for IPs; make Corps
resources unavailable for jurisdictional
determinations and enforcement
actions, and severely reduce our ability
to continue to protect the aquatic
environment.
Others: The Corps intends to initiate
substantial improvements to its data
collection for all NWPs, particularly
NWP 26. Furthermore, during the two
year period that NWP 26 is currently
issued, the Corps will collect data on
the types of activities as well as impacts
to the aquatic environment and
mitigation required. We are also
instituting a self reporting requirement
for fills below 1/3 acre. The Corps will '
continue to collect data on acres of
impact and mitigation on a permanent
basis.
A few commenters recommended
including a linear footage limitation on
headwater systems of 200-500 feet
(consistent with other NWP limitations)
for application to linear wetlands and
headwater streams.
We concur with this comment and
have placed such a limitation on NWP
26 for activities directly affecting (filling
or excavating) more than 500 linear feet
, of the stream bed of creeks and streams.
Therefore, no activity that adversely
effects greater than 500 linear feet of the
stream bed can be authorized under
NWP 26. The threshold of 500 linear
feet was chosen to maintain consistency
within the NWP program (500 linear
feet is the PCN threshold for NWPs 12
and 13). We believe this additional
limitation will enhance the program's
ability to ensure that projects with
potentially greater than minimal
impacts will not be authorized under
the NWP.
One commenter suggested that if
wetlands are the driving force in
lowering acreage limits, then lower
acreage limits should only be set for
impacts to wetlands and that it may be
appropriate to raise the acreage
limitations for projects that affect only
ephemeral drainage areas. A few other
commenters similarly recommended
that the term "headwaters" include all
naturally ephemeral streams regardless
of their mean annual flow, in that they
only exceed the average annual flow
criteria because of high peak flows
during the winter months, which
artificially skew the average flow rates.
We believe the existing definition for
headwaters, as currently written in 33
CFR 330.2 (b). adequately provides for
the consideration of ephemeral tributary
systems and accommodates this
comment. In addition, headwaters
whether vegetated or not provide
important flood storage and water
quality values to the overall aquatic
system. If some ephemeral drainage
areas are truly low value the districts
can develop and issue regional general
permits to expand coverage.
Several commenters expressed the
concern that NWP 26 reduces the
program's protection of vernal pools and
requested that the filling of vernal pools
not be allowed under NWP 26.
We believe the provisions for
"discretionary authority" at both the
division and district levels is adequate
to accommodate the concerns for unique'
waters. ' i
One commenter stated that the NWP
. does not meet the regulatory
requirements of the Natural Resources
Conservation Service's Wetland
Conservation Provisions (Swampbuster
program) and continues the application
of inconsistent standards on the
communities regulated by the section
404 and Swampbuster programs.
The Corps finds no conflicts between
this NWP and programs administered by
the Natural Resource Conservation
Service and is working closely with the
NRCS to provide consistency in our
programs. Since the standards for the
two programs are different, as are the
program goals, some differences will
exist. We are committed to minimizing
the differences to the extent possible.
One commenter stated that Corps
districts differ in the methodologies
used to calculate or determine where
the "5 cubic feet per second" point is
on waterways and that the methodology
should be standardized. The commenter
also recommended that there be a
designated record keeping method and
that the information be distributed or
made available to the ^public.
We believe that the definition of
headwaters is adequate to establish
consistency in determination
methodologies. The determination is
normally an analytical one; however,
abbreviated or simplified estimating
methods are considered appropriate on
a regional basis. We do intend to
establish standard reporting methods for
data collection. •
One commenter felt that there is a
need to clarify the definition of "single
and complete project'1 for this NWP,
suggesting that the permit should be
applied differently (perhaps different
thresholds) for projects that differ in
purpose -and size.
The Corps has provided guidance to
the field regarding the definition of
"single and complete project" and
believes it would be inappropriate and
inconsistent to modify that guidance for
this permit. NWP 26 is designed to
address minor filling activities with less
than minimal impacts. Neither the
magnitude of the project, nor the level
or public interest, nor the nature of the
applicant, are relevant considerations to
the decision on whether the project's
adverse effects are minimal. Our
definition of "single and complete"
project does not allow piecemealing
projects regardless of the type of project.
One commenter requested a definition
of special aquatic sites.
The definition of "special aquatic
sites" is provided in the section
404(b)(l) Guidelines (40 CFR 230.3(q-
1)). No further definition is considered
necessary for the purposes of this
nationwide permit.
A few commenters recommended that
the Corps coordinate all applications
with natural resources agencies,
including applications for activities
under one acre in size.
The Corps believes that activities
involving less than 1 acre of waters of
the United States are. generally minor in
nature, and that multiple Federal agency
review is not necessary. The Corps staff
is well trained in the biological and
environmental sciences and is fully
qualified to assess potential impacts.
The Corps experience with agency
response to the existing PCN for 1-10
acres indicates that the natural resource
agencies, which also have limited
human resources, provide very few site
specific substantive responses at the
lower end of the 1-10 acre range. Thus,
we would expect even fewer comments
for projects with impacts below 1 acre.
Also, the additional administrative
workload associated with agency
coordination would seriously impact
the Corps ability to focus on projects
with greater impact.
A few commenters recommended the
Corps strictly enforce the requirement
for all NWP 26 applicants to submit a
wetland delineation with the pre-
discharge notification.
The Corps strives to implement the
program in as reasonable and flexible a
manner as possible so as not to impose
unnecessary burdens on members of the
regulated public. We do require wetland
delineations to the extent necessary to
identify the resources being affected and
the necessity for adequate mitigation
when appropriate. The level of
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65895
1 refinement of such wetland delineations
is left to the discretion of the districts
on a case-by-case basis. NWP 28 is
reissued with modifications as
discussed above.
27. Wetland and Riparian Restoration
and Creation Activities: The Corps
proposed to modify this NWP to allow
projects to occur on any Federal lands.
We also requested comments on
whether to allow creation of wetlands
and their subsequent reversion on
reclaimed surface coal mined lands, to
eliminate the 5 year window of
reversion opportunity and allow the
reversion to occur at any time in the
future, to allow use of NWP 27 for any
voluntary restoration/creation project, to
include enhancement as an option, and
to require a written agreement in all
cases.
There were several commenters for
and an equal number of commenters
against the proposed modification of the
permit to allow projects to occur on all
Federal lands: One commenter felt that
the proposed permit would grant more
flexibility on Federal lands. Another
commenter ,felt that the Corps should
not require review and approval of an
Operation and Maintenance Plan for
projects on Federal lands or carried out
by Federal agencies since the Corps
does not review or approve such plans
for projects on private lands. We believe
that all Federal agencies should be
encouraged to participate in wetland
restoration and creation projects and
have modified the permit for all Federal
lands. Because the permit is limited to
restoration, enhancement and creation
activities and because authorizations for
those projects occurring on Federal land
will no.t provide the opportunity for
reversion of the wetlands without a
permit from the Corps, we concur that
an Operations and Maintenance Plan
approval is unnecessary and we have
not included this requirement in the
final permit.
Several commenters supported the
consideration of expanding the permit
to allow for the creation of wetlands and
their subsequent reversion on reclaimed
surface coal mined lands, provided the
wetlands were voluntarily created under
an OSM permit or an applicable state
program permit. A few were opposed to
this idea. Some stated that wetlands
created due to hydrologic or
topographic features of the landscape
that may occur during reclamation
should not be excluded. One commenter
stated that the existence of a Surface
Mining Control and Reclaimation Act
(SMCRA) permit document and a
certification that reclamation has been
performed in accordance with permit
requirements, should be sufficient to
document the fact that the wetland
construction was voluntary and non-
mitigative. The Corps believes the
potential for gaining several thousand
acres of additional created wetlands
through this provision warrants
modification of the permit as outlined
in the proposal. The permit wording has
been changed to include wetlands
voluntarily created under an OSM
permit or applicable state program
permit, with limitations not allowing its
use for wetlands created as mitigation,
nor to wetlands or waters that would be
created naturally due to hydrologic or
topographic features, nor to wetlands
created for a mitigation bankJ Reversion
of such voluntary wetlands in the future
is authorized by this NWP subject to the
terms and conditions of this NWP.
A few comments were received
regarding the consideration for
eliminating the 5 year window of
reversion opportunity and allowing the
reversion to occur at any time in the
future. Some commenters felt that the 5
year window of reversion opportunity
should be retained, while others felt it
should be removed. Some commented
that removal of the 5 year limitation on
the window would attract more
conversion of abandoned coal mining
sites to wetlands. The 5 year window for
reversion of wetlands was adopted for
written agreements that had limited
terms, for wetland restoration and
creation, between landowners and the
Natural Resources Conservation Service
(NRCS) and the U.S. Fish and Wildlife
Service (FWS). For example, upon the
expiration of such a 20 year agreement
that landowner could revert the wetland
back to the prior condition of that land.
In most cases, the reversion would
involve activities that require a permit
from the Corps. We believe that in order
to authorize these reversion activities by
the NWP for an agreement that had
expired, there needed to be a time limit
after the agreement expired, to complete
any reversion, or an IP would be
necessary. The 1996 Farm Bill (Pub. L.
104-127) has included provisions for
NRCS to document voluntary wetland
restoration, enhancement, and creation
activities that can be reverted to the
prior condition at any time. In order to
support and encourage such voluntary
restoration, enhancement, and creation
activities, we are authorizing those
activities and the reversion of such
wetlands to their prior condition by this
NWP. While in these cases there will
not be a 5 year reversion limit, since the
agreement/documentation does not have
a time limit, we are requiring a notice
to the Corps with adequate
documentation by NRCS of the prior
condition.
Some commenters felt that the permit
should be expanded to include any
voluntary restoration or creation
projects, to include private parties on
private lands without signed agreements
with either the NRCS or the FWS. A
large number of commenters expressed
opposition and an equally large number
of commenters expressed support for
allowing the permit to authorize
projects on non-Federal public lands.
Some commenters stated that activities
on state fish and wildlife management
areas, conducted by a state agency,
should be included in this permit. One
commenter felt that the Corps should
grant state agencies a statewide
exemption for managing wildlife
populations. Some stated that they
would support expanding use of this .
permit to voluntary restoration and
creation activities by state and local
government agencies provided those
agencies demonstrate a long-term
commitment to maintenance of the
created or restored area. The Corps
believes that including authorization for
all creation, enhancement, and
restoration activities on any lands
(Federal, non-Federal public lands and
private lands) would provide a less
burdensome permit process and provide
additional incentives for wetland
creation, enhancement, and restoration
projects. The nationwide permit has
been modified to include authorization
for public and private entities to
conduct creation, enhancement, and
restoration activities on any lands, but
with no opportunity for reversion of
those wetlands without a permit from
.the Corps, provided the permittee
notifies the District Engineer in
accordance with the "Notification"
general condition. This NWP cannot be
used to authorize the reversion of such
wetlands.
With regard to whether or not to
include enhancement as an option, one
commenter stated that while most •
enhancement projects have little
adverse effect to wetland functions,
measures considered by some parties to
be enhancement may at times be
considered by others to have
unacceptable negative effects on
wetland functions and values. Another
commenter stated that the inclusion of
enhancement without technical criteria
for project review may increase the risk
of existing areas of wetland being
converted to other wetland types. The
existing NWP .provided for
enhancement of wetlands, but this was
not clearly stated, by providing for
"restoration of * * *-degraded non-
tidal wetlands." Further, we believe that
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this NWP should authorize the
enhancement of degraded wetlands. We
agree, and do not intend, for this NWP
to allow "enhancement" for the
conversion of one wetland type to
another. We have included
enhancement projects but have limited
enhancement under this NWP to
improving degraded wetlands.
We concur with these comments and
believe that to ensure no more than
minimal impacts will result from the
authorization, we cannot include
enhancement within the scope of this
NWP.
Several commenters felt that there
was a need for a binding agreement in
all cases, even where voluntary
restoration is occurring under other
Federal or state programs without a
written agreement, while others felt that
binding agreements were not necessary.
One commenter stated that the written
agreements do not have to be easements
or contracts, which may dissuade many
landowners from participating, that the
agreements could be management
agreements which become conditions to
the permit. One commenter stated that
for voluntary restoration and creation
projects involving a Federal or state
agency, an agreement should be
required, and for a voluntary project
that does not include Federal or state
cost sharing or technical assistance, no
agreement should be required provided
hydrologic and vegetative baseline
conditions are documented. We have
concluded that the requirement for a
binding agreement is not necessary in
all cases. However, where the
authorization provides opportunity for
reversion of the created or restored
wetland to its non-wetland state (i.e., in
those cases involving private parties
entering into contracts/agreements with,
or documentation of prior condition by,
the NRCS or FWS under special wetland
programs or an OSM or applicable state
program permit), then a binding
agreement, documentation, or permit by
NRCS, FWS, or OSM or applicable state
agency, which clearly documents the
prior condition, must be required. We
have clarified in the NWP that reversion
can only occur where such instruments,
which clearly document the prior
condition, are excepted. In all other
cases, where the reversion opportunity
is not included and a permit will be
required for alteration of the restored,
enhanced or created wetland or no
binding agreement or documentation of
the prior conditions will be required.
A few commenters stated that there
was no need to document baseline
conditions. Some commenters felt that
in cases of purely voluntary efforts,
there does not appear to be a compelling
need for rigorous documentation of the
baseline conditions. 6thers felt that this
permit should include conditions that
require documentation of existing use,
hydrology and vegetation baseline
conditions and allow reversion to
previous use provided it does not
exceed the previous conditions. Some
felt that the format for documenting
baseline conditions should be
standardized, while others felt that the
baseline condition could be
documented in a predischarge
notification, by way of a wetlands and
waters of the United States delineation.
Some commenters suggested that this
permit should not authorize conversion
to pre-restoration conditions where
baseline conditions cannot be
documented. The Corps believes it is
only necessary to document prior
(baseline) conditions | for those cases
where there would be an opportunity
for reversion of the restored or created
wetland to their original condition.
Furthermore, for those cases where the
opportunity to revert the wetland to-a
non-wetland status is available,
documentation of the prior condition is
required though NRCS, FWS or OSM
programs. The Corps .agrees that the
prior condition must be documented in
such cases. Consequently, prior
conditions will be documented in those
cases allowing reversion of wetland to
non-wetlands. If that documentation
cannot be provided af the time the
reversion is requested, then an IP would
be required for any reversion. In those
cases where a permitfrom the Corps
will.be required for alteration of the
created or restored wetland, we do not
believe that the prior condition need be
documented.
Some commenters stated that
notification to all respurCe agencies
should be included with this permit and
further that the Corps should be
required to notify all interested persons
that could be affected by the restoration
or creation activities.1 Others advocated
limitations such as requiring
notification with agency coordination
for activities exceeding Vb acre. Some
commenters were afraid that restoration
of wetlands to create waterfowl feeding
areas could, as an example, adversely
impact other species, which could be
identified through agency coordination.
The Corps believes, based on the
changes and modifications discussed
above and the scope of the authorized
activities, that the activities and impacts
authorized by this NWP will not only be
minor in nature, but will result in
positive contributions to the national
goal of increasing wetland areas. We
believe notifications to the agencies and
all affected parties would be
unnecessarily burdensome to all the
parties and would be excessively
duplicative governmental review
without commensurate environmental
benefits.
One commenter suggested that the
permit not authorize discharges into
open water. The Corps has not limited
the permit to not apply to open water.
To do so would excessively limit the .
use of the nationwide permit. It is
anticipated that most activities
authorized under this permit will be in
channels, ditches and some small
impacted streams. It is unlikely that fills
in larger open water areas such'as lakes
or rivers would occur, particularly with
the requirement that impacts be less
than minimal.
Another asked that this preamble
clarify the relationship between this
NWP and the proposed new NWPs A for
Moist Soil Management and NWP B for
Food Security Act Minimal Effect
Exemptions. This NWP is for the
restoration, enhancement, or creation of
wetlands while NWP 30 Moist Soil
Management (proposed NWP A) is for
management of wetlands and proposed
NWP B is for wetland mitigation created
for the loss of wetlands on agricultural
lands.
Another commenter suggested
clarification of the term "non-tidal" in
the context of this permit, suggesting :
that term should only apply to naturally
non-tidal wetlands and not to formerly
tidal wetlands which have been diked
and are now freshwater wetlands. The
term tidal is defined in the Corps
regulations at 33 CFR 328.3. Non-tidal
refers to the existing conditions and
would include former tidal areas that no
longer meet the definition of tidal
waters.
One commenter also suggested that
this NWP apply to compensatory
wetland mitigation for Federal aid
transportation projects, and another
recommended that this permit not apply
to projects that are primarily stormwater '
treatment projects. Compensatory ;
wetland mitigation activities required
under Corps permits (such as those for
FHWA projects) are normally ,
authorized by the permit requiring the
compensatory mitigation and this NWP
would generally not apply. This NWP
authorizes the restoration,
enhancement, and creation of wetlands
and does not address their need. If
wetlands are created for stormwater
treatment projects they would be
authorized, if they meet the terms and
conditions of this NWP. However,
generally reversion of such wetlands
would normally not be authorized by
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65897
» this NWP. NWP 27 is reissued with
changes discussed above.
• 28. Modifications of Existing Marinas:
The Corps proposed no changes to this
NWP. One commenter stated that
compliance with state permits or
exemptions would be required where
submerged state-owned lands were
included in the modification of an
existing facility. The intent is not to
allow any additional slips or docks, thus
additional water quality, navigational or
safety impacts would not occur. We
recognize the need for compliance with
all existing applicable regulations. The
issuance of this NWP would not obviate
the need to obtain other Federal, state,
or local authorizations required by law.
NWP 28 is reissued without change.
29. Single-Family Housing NWP: The
Corps proposed modifying the
notification process for this nationwide
permit to provide for resource agency
coordination during the notification
review process.
General: A large number of
. commenters opposed reissuance of
NWP 29, expressing the opinion that the
permit does not conform to the
requirements for general permits,
Violates the Fish and Wildlife
Coordination Act and is not in
compliance with the National
Environmental Policy Act. One
commenter stated the belief that the
permit is inconsistent with Florida
statutes.
The Corps believes that NWP 29 is in.
compliance with all Federal laws and
regulations. The permit is for actions
that are similar in nature, both in size
and type (less than Vz acre, single family
residences). With the general, regional,
and specific conditions, the district's
opportunity to review each case through
the notification process, and the
district's opportunity to exercise
discretionary authority, we are
confident that individual and
cumulative adverse effects will not
exceed minimal. Initial development
and issuance of the permit along with
this reissuance has been done in full •
compliance with 33 CFR part 330,
which includes compliance with the
Fish and Wildlife Coordination Act and
NEPA. If the permit is in some way not
consistent with state law, the state can
deny its section 401 water quality
certification. Furthermore, issuance of
any Corps permit does not allow
applicants to violate state, local or other
Federal laws.
One commenter opposed the NWP .
because the program usually prohibited
houses in wetlands before this NWP.
Another commenter expressed
opposition based on the belief that the
•issuance of the permit will increase
property values and cause taxes to
increase.
The Corps regulatory program has
never prohibited fills for the
construction of homes. IPs were
required, however, which in some cases
may have resulted in denials due to the
availability of practicable alternatives
available to the applicant. However,
most projects were permitted following
the review and analysis associated with
.the IP process for single family
residences. Moreover, virtually every IP
that was issued involved only on-site
avoidance, minimization, and, in a few
cases, compensatory mitigation, because
offsite alternatives for this type of
project are not generally viewed as
practicable. The IP process continues to
be required for proposals which exceed
the l/z acre or the minimal effects
limitations of the permit or where the
Corps district uses its discretionary
authority. The effects of the permit on
property values relative to state and
local taxation programs are unknown to
the Corps and is not an issue for
consideration by the Corps regulatory
program.
A couple of commenters expressed
the opinion that the NWP was created
only for political reasons in that there
was no natural resource protection basis
for its creation. The permit was initially
issued and is being reissued, to provide
regulatory relief to small landowners for
projects with minimal adverse effects on
the aquatic environment. While an
important goal of the Corps regulatory
program is to protect the Nation's
aquatic resources, providing timely and
efficient decision-making and rendering
fair and reasonable decisions for the
applicant are also established goals of
the program. We believe this permit is
consistent with the goals of the
regulatory program, including
protection of the aquatic environment.
Virtually every single 'family residence
application for fill was, in the past,
authorized as long as impacts on-site
were minimized. The Corps assures this
same level of protection of the aquatic
environment through the NWP 29 PCN
process.
Many •commenters supported
reissuance of NWP 29, but these
commenters were split with regard to
whether the notification of the actions
should be provided to resource agencies
prior to authorization. One commenter
recommended that we carefully avoid
unnecessary regulatory oversight with
notification. The. Corps has concluded
that the notification procedures for this
permit should include agency
coordination. The permit has been
reworded to effect this change.
Some commenters recommended that
the permit be temporary because it
attempts to assist small landowners who
had unknowingly purchased wetlands
or purchased the land prior to wetlands
regulation. The commenters
recommended we not reissue the permit
after the year 2001, at which time the
regulatory program will have been in -
place for almost 30 years. The Corps is
reissuing for a period of 5 years and all
NWPs will be reviewed for reissuance
prior to their-expiration in the year
2001.
Permit Limitations & Definitions:
Several commenters suggested the
modifying the limits of the permit and.
recommended the following: Limit fills
to ]/4 and Vio of an acre; exclude use in
open water areas; require mitigation for
fills over 50 cubic yards; and, disallow
use for fills in mitigation sites. One
commenter recommended the permit be
limited to a specific number of Vz acre
authorizations allpwed 'per wetland.
Another suggested establishing limits
based on ecosystem rather than
.ownership. Two commenters
recommended that we prohibit
discharges within 100 feet of streams
supporting anadromous fish. One
commenter recommended excluding
certain regional waters. One commenter
stated that it was a major oversight to
allow this NWP to apply to non-tidal
wetlands adjacent to the ocean. One
commenter commented that the permit
should be limited to authorization of
primary residences only and another
recommended that mitigation be
required as a condition of the permit.
After careful consideration of all the
comments, and based on our experience
with NWP 29 over the past year, the
Corps has determined that the acreage
limitation should be retained at Vz acre,
a limit should be imposed to require a
"no fill" buffer between the fill and any
free flowing stream, river, or other
flowing waterbody and/or the normal
spring high tide in tidal areas. Data
collected on the use of NWP 29 over the
last year has shown that the average
impact per NWP 29 across the nation
was approximately 0.19 acres. The data
also shows that during none of the
quarters did the average impact acreage
go above 0.25 acres. Additionally,, it
should be noted that the average acreage
requested was only 0.31. For all of
Fiscal year 1996, the Corps authorized
333 projects for a total of 62 acres of fill
nationwide. The total acreage of fill
requested by applicants was 101 acres,
thus the Corps review reduced the
requested impacts by 40%.
Furthermore, mitigation may be
required for higher value wetlands. Of
course, as with all NWPs, the Corps
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districts will ensure that the fill is the
minimum needed on a case-by-case
basis. If additional levels of protection
are necessary, Corps District and
Division Engineers will add regional
conditions as they did in several
districts in 1995. As with other NWPs,
such regional conditions could revoke
NWP 29 in certain high value aquatic
areas or add region specific limitations •
on the use of NWP 29.
One commenter requested a clearer
definition of "non-tidal" to ensure
adequate protection of marine and
estuarine habitats. The commenter
pointed out that the definition differs
between the Rivers and Harbors Act
(mean high water) and the Clean Water
Act (Spring high tides or other high
tides with periodic frequency), and
recommended the adoption of,the CWA
definition.
The definition of tidal waters can be
found in 33 CFR 328.3{f)-and is defined
as those waters that rise and fall in a
predictable and measurable rhythm or
cycle due to the gravitational pulls of
the moon and sun (the high tide'line).
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 hydrologic.
wind, or other effects. The high tide line
includes the normal spring high tides.
The limits of Corps jurisdiction in non-
tidal waters of the United States can be
found in 33 CFR 328.4(c). This
regulation does not mean that wetlands
adjacent to tidal wetlands are also tidal
wetlands, but rather that in coastal
areas, Corps jurisdiction extends to the
limits of these "non-tidal wetlands" that
are adjacent to tidal wetlands.
Consequently, this NWP is applicable to
wetlands that are adjacent'to wetlands
subject to spring high tides. However,
divisions can, as some did in 1995,
provide regional conditions to exclude
high value wetlands adjacent to tidal
waters.
Several commenters requested either
elimination or a more detailed
definition of the term "attendant
features". They suggested that
swimming pools, tennis courts, barns,
small businesses and septic fields
should not be allowed. The purpose of
this permit is to reduce the regulatory
burden associated with the construction
of single-family homes while
maintaining environmental protection.
When building single-family homes we
recognize that, besides the foundation of
the house itself, there are activities
associated with a house that are
considered necessary, customary, or
normal to home sites. We believe these
"attendant features" should normally-be
. authorized with the house. We would
not accomplish the purpose of this
permit if we were to authorize the house
only and process an IP for the attendant
features. Attendant features, for the
purpose of this permif, include features
that are reasonable, necessary
appurtenances constructed in
conjunction with single-family housing
activities. Examples include a garage,
driveway, storage shed, septic field, and
yard. Examples of inappropriate
attendant features not covered by this
permit include a barn, which may be
covered by NWP 40, or a small business.
Such features would not be directly
related to a single-family home. While
we believe that a yard is an appropriate
attendant feature of a single-family
home, we have not identified a size that
will work for all NWP 29s. Therefore,
we will work with the applicant to
ensure that acceptable, but not
excessive, yards are authorized. This
NWP only authorizes | activities from the
perspective of the Corps regulatory
authorities, other Federal, state, and
local permits, .approval, or
authorizations may also be required.
The permittee would be responsible for
obtaining all necessary authorizations,
including building permits, prior to
placing a septic system, yard, or any
other fills in wetlands. Additionally,
water quality is a concern addressed by
applicable state agencies as well as the
Corps. It is the permittee's responsibility
to obtain any necessary water quality
approvals or authorizations prior to the
discharge of fill. Furthermore, while
properly designed, constructed,, and
operated septic systems can be placed
on fill in many wetlands, the septic
system must be approved by the
appropriate state or local agency. The
Corps has determined the extent of the
attendant features to be applied on a
nationwide basis. If an individual
district concludes that a particular
feature should not be authorized under
this permit, then the jDivision Engineer
must regionally condition the permit to
exclude the feature. Furthermore,
additional restrictions may be placed by
states in 401 water quality certification
or CZM consistency determination. On
a case-by-case basis, where a particular
feature is not appropriate at a specific :
site, the District Engineer may condition
the NWP or require an individual
permit. :
As a Corps district evaluates each
request under NWP 29, they will
consider the proposed home and
attendant features in| the context of the
functions and values of the waters of the
United States as well as local zoning
and regulatory set-backs and
requirements. If uplands are available
on the applicant's property to
reasonably accommodate the home and
attendant features, after considering
property line set-backs and other
requirements, the Corps will not'
authorize the project under NWP 29 and
instruct the applicant to apply for an IP.
If fill for the home and for attendant
features is needed, the Corps will
determine the amount of fill based on
the aquatic functions and values to be
impacted. Specifically, attendant
features such, as a yard, tennis court, or
swimming pool may be limited, or not
authorized, if the project is located in
high value wetlands. The Corps will
generally require septic systems to be
located as far as possible from open
waters, and will otherwise attempt to
ensure that septic systems will not
adversely affect the quality of surface
waters.
Effects & Cumulative Effects: One
commenter expressed concerns for
adverse effects on floodplains resulting
from issuance of the permit. Two
commenters expressed concern for
. water quality impacts due to the typical
location of NWP 29 activities within
watersheds. Several commenters
expressed the belief that this permit
encourages housing development in
wetlands, and several expressed general
concerns for the cumulative impacts.
Because the activities associated with
the use of this permit could be located
within the floodplain or a waterbody,
there is potential for increased flooding
and reduced flow. The notification
process allows the district to evaluate
the proposed impacts, including
potential flooding impacts, compare
them to existing impacts within the
wetland system or watershed, and
determine if the project has more than
minimal individual or cumulative
adverse effects. The district will use its
discretionary authority to place
conditions on a proposed activity to
avoid or minimize these potential
impacts. If the activity is determined to
have more than minimal adverse effects,
the, district will require mitigation or an
individual permit. The district and
division offices may identify specific
geographic areas, such as a subdivision,
or a particular aquatic system, where
there may be concerns regarding
cumulative impacts to a watershed. If
such impacts are identified, the division
will revoke this NWP in specific
geographic areas or develop regional
conditions that apply to that specific
area. Many districts and divisions have
already revoked NWPs, including NWP
29, or imposed such regional conditions
in many geographic areas or wetland or
water types.
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65899
Coordination: One commenter asked
that we require -Endangered Species Act
and Historic Preservation Act
coordination prior to authorization
under this permit. One commenter
requested that-we require compliance
with Federal, state, and local
regulations. The Corps believes that the •
provisions of Nationwide Permit
Conditions 11 and 12, which address
endangered species and historic
properties, as well as the procedures in
33 CFR part 330, are adequate for
guarding against unacceptable impacts
in these areas of concern. Moreover, by
issuing a verification letter the'Corps
has made a determination of "no affect"
on endangered species and "no adverse
affect" on historic properties. The
issuance of a Federal permit does not
obviate the need for applicants to
comply with all other Federal, state and
local laws and regulations, and it is
incumbent upon the applicant to
comply with all applicable
requirements.
Subdivisions: One commenter
suggested applying the current Vz acre
limitation for subdivisions created on or
after November 22, 1991, to all
subdivisions regardless of the date they
were created. One commenter requested
a more elaborate discussion on what
constitutes a subdivision. Another.
recommended the subdivision date be
1977 when the scope of'the Corps
regulatory jurisdiction was expanded
and 404(e) was first enacted, or 1984
when many property owners were made
aware of the need to obtain permits.
Another commenter suggested limiting
the permit to those persons who
purchased their properties prior to
enactment of Section 404 of the Clean
Water Act. One commenter asked what
constitutes "creation" of a subdivision,
is it the date the subdivision was first
drawn on a piece of paper or the date
it was approved by a planning
jurisdiction? One commenter requested
the addition of a subdivision rule
(interpreted to mean a more detailed
discussion of subdivisions within the
permit).
November 22, 1991, is the date on
which the current NWP program
regulations, including issuance of,
r-eissuance of and modifications to the
previous NWPs were published in the
Federal Register. It was in these
regulations that the terms surrounding
subdivisions for the purpose of NWP 26
were outlined and awareness of the
subdivision clause was heightened.
With few exceptions, we believe this
date would be fair to all parties. We do
not believe that the November 22, 1991,
date penalizes any one group of •
individuals and that is the-date which
has been in use since issuance of the
nationwide permit on September 25,
1995. The subdivision date refers to
when a parcel was subdivided into
smaller parcels, not when the
subdivided smaller parcels are sold.
Therefore, individual parcel owners are
not penalized based on when they
purchased property. The term
"creation" refers to the date the tract of
land, after being subdivided, is officially
approved by the appropriate state or
local governing agency. The conceptual
subdivision of land is not acceptable.
One commenter recommended that
the permit be conditioned to not allow
for multiple ownerships by family
members to circumvent the subdivision
clause. We believe that the conditions
limiting the use of this permit to single-
family residences, personal residence,
once per parcel, and not more than Vz
acre total per subdivision created after
November 22, 1991, are adequate
conditions to limit use of the permit and
ensure compliance with the "minimal
effects" criteria for general permits.
Multiple ownership by the same family
within a subdivision created after
November 22, 1991, would not allow for
any greater fill than single ownership of
the subdivision, in that the total
aggregate fill could not exceed Vz acre.
NWP 29 is reissued with the
modifications discussed above.
30. Moist Soil Management for
Wildlife: This NWP was proposed by the
Corps as a new nationwide permit
(proposed new nationwide permit A) to
authorize activities necessary to
manage, construct, and/or maintain
habitat and feeding areas for wildlife on
Federally-owned or managed and state-
owned or managed property.
Many commenters supported the
NWP as proposed. Several of the
commenters felt that the NWP should
include activities on privately-owned
lands managed by Federal agencies.
These are agencies with expertise in the
subject area and are responsible for
managing the lands in concert with the
objectives of the Federal wetlands
programs such as NRCS and FWS or
state plans. A few commenters stated
that wetland areas under permanent
easement and deed restrictions should
be covered by the NWP. One commenter
stated that privately-owned lands
should not be included.,This permit was
proposed by the Corps specifically for
application to Federal and state resource
agency activities. It is intended that the
permit apply to managed lands as well
as lands owned by these Federal and
state agencies. The techniques listed in
the permit are not "all inclusive," but
meant to be representative of the types
of activities included. The list has not
been expanded for the sake of brevity.
A few commenters asserted that
discing or plowing are activities that are
not, and should not be, subject to
regulation. Mowing and bush hogging
are two examples of vegetation removal,
which if done so as not to substantially
disturb the root system, are not
regulated under section 404. (See 33
CFR 323.2(d)(2)(I)). While discing and
plowing activities are exempt from
regulation pursuant to CWA section
404(f)(l) when conducted in
conjunction with ongoing farming
activities, such activities are not exempt
for the purposes of wildlife
management. Thus, this permit
specifically authorizes these activities.
A few commenters were concerned
about implementing adequate review
measures and suggested that the Corps
include a Federal and state wildlife
agency PCN to ensure that any
conversion of wetland types would be
minimal or an IP would be required.
Because these agencies have extensive
expertise in wetland management and
are responsible for managing the lands
in concert with the objectives of Federal
and state wetlands programs, we believe
the PCN processes would result in
unnecessary and duplicative
governmental review. Furthermore, we
have added an additional restriction to
the NWP to not authorize converting
wetlands to open waterbodies. Proposed
Nationwide Permit A is issued as
proposed and discussed above as NWP
30.
31. Maintenance of Existing Flood
Control Projects. General: This NWP
was proposed by the Corps as a new
nationwide permit (proposed new
nationwide permit D) to authorize the
excavation and removal of accumulated-
sediment and associated vegetation for
maintenance of existing flood control
facilities. The majority of those
commenting on this proposed NWP
were in support of its issuance. Most
viewed this permit as one that would
greatly improve the local sponsor's
ability to perform critical flood control
maintenance activities. Several
commenters felt that, especially for
some projects, using this NWP would
violate 404 (e) because maintenance
work would have more than minimal
adverse effects on fish and wildlife
resources. Their concern was for use of
the permit for older flood control
projects now supporting fish and
wildlife habitat. Many of these
commenters felt that maintenance
dredging in some areas could result in
perpetuating past mistakes and, for
older projects, it may be impossible to.
determine the original dimensions.
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Federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 / Notices
Many commenters felt that flood control
channels that develop and support
wildlife need public review and agency
comment and a PCN requirement will
not substitute for public review as
required by the Clean Water Act.
We believe that with the limitations
and conditions included within the
final permit, the NWP will comply with
the "minimal effects" criteria for general
permits. Safeguards for the protection of
valuable habitat have been included
within the permit, particularly in the
procedure for the District Engineer (DE)
to determine the maintenance baseline
and the provisions allowing for the DE
to require mitigation.
Recommendation for Expanding the
Permit's Scope: Numerous comments
recommended expanding the scope of
this NWP. Some of the recommended
inclusions were state and city flood
control maintenance activities;
maintenance of stormwater management
facilities; water conservation facilities;
retention/detention basins and channels
constructed by municipalities,
watershed management organizations,
and watershed districts (in compliance
with surface water management
practices required by the state); any
Federal, state, or locally funded flood
control project; irrigation facilities; any
facility where an NEPA document has
been prepared; drainage system inlets
and outlets; manmade channels or
structural projects' developed under
authorization of Federal or state
governments; and any facility that was
constructed through excavation prior to
the Excavation Rule. One commenter
stated that any "improved channel" or
detention facility constructed before
July 1975 or after July 1975 if it met
exemption from 404 regulations or fell
under 404 regulations and was
authorized by the Corps should qualify
for this NWP.
Many of the facilities included in the
above recommendations would be
included in the final wording, which
authorizes maintenance of existing flood
control facilities previously authorized
by the Corps regulatory program or
constructed by the Corps and
transferred to a local sponsor for
operation and maintenance. However,
this NWP was proposed for
maintenance of "flood control"
facilities. In order to expand the scope
of this NWP to include other types of
facilities such as irrigation and drainage
projects, we would need to propose
such a change for public comment and
opportunities for a public hearing.
Therefore, we are not expanding the
scope of this NWP to include other
types of facilities. However, we will
seek public comment regarding other
types of activities that should be
authorized by NWP and, if appropriate,
we would propose an NWP for such
facilities.
Two commenters suggested that this
NWP include construction of
cofferdams and access roads necessary
to conduct maintenance of the flood
control facilities rather than require
separate notification under NWP 33. We
believe this permit shduld be limited to
maintenance activities of existing flood
control facilities and that temporary
construction activities would more
appropriately be authorized by IPs or
NWP 33, which has a specific
notification requirement for a
restoration plan. '
Recommendation for Limiting the
Permit's Scope: A few commenters
recommended restricting this NWP to
only on-going flood control projects.
One of these commenters specifically
suggested that the NWP should be
worded to state that for a project to
qualify for this NWP, it must have been
maintained within the past 3 years
unless otherwise stated in the original
permit. One'commenter suggested using
the safeguards contained in NWP 3—
that this NWP applies only to the repair,
rehabilitation, or replacement of
currently serviceable water management
projects authorized under Federal, state,
or local governments,1 provided the
environmental effects resulting from
such repair, rehabilitation, or
replacement are minimal. One
commenter suggested a 5 acre threshold
for this NWP, and another felt that any
threshold would be arbitrary and
insteid recommended that this
determination be made based on the
quality of the existing aquatic resource
and how the site will be impacted toy
the proposed excavation activity.
We included provisions within the
NWP to limit maintenance activities to
an established maintenance baseline, to
be determined by the DE. The process
prescribed for determining the baseline
includes consideration of the facility's
maintenance history, and other factors
designed to identify the purpose and
need for the proposed maintenance, and
that the proposed maintenance activity
is not excessive to achieve that need.
We believe that specific threshold limits
would be inappropriate and
unnecessarily restrict projects that
should qualify for this NWP.
Pre-Constmction Notification: Many
commenters were opposed to having
any preconstruction notification
requirements. They felt that it would be
duplicating the efforts of other entities
for the Corps to review flood control
projects that adhere to the original
schedule for maintaining the facility.
One commenter added that requiring a .
PCN would be contrary to the Corps
goals to avoid unnecessary regulatory
controls and reduce unnecessary
paperwork and delays for permittees.
Several commenters were concerned
that additional coordination could pose
a threat to public health and safety if
flood control districts were impeded in
any way to maintaining a facility. Two
commenters specifically requested that
there be no PCN requirement for the
facilities designed and constructed to
comply with local or state water
quantity and/or quality control
requirements when the depth and area
of dredging is in accordance with the
originally approved design plans.
Another commenter suggested that no '.
PCN be required for emergency
maintenance performed as a result of a
local, state or Federally declared
disaster.
Numerous commenters provided
recommendations for thresholds of
when to require a PCN, ranging from
100 to 100,000 cubic yards or at a 1 acre
threshold. One commenter suggested
that a 25 cubic yards limit be used'in
streams supporting anadromous fish.
Another threshold to require a PCN was
whenever previous maintenance
activities occurred more than 5 years [
earlier. One commenter suggested using
50 cubic yards as the PCN threshold
stating that under 50 cubic yards the
applicant could use NWP 18/19.
Another commenter suggested 10 acres
or 1 acre/mile of channel/year. Another
commenter recommended that the
impacted area threshold be 10 acres
minimum for each unlined basin and 25
acres minimum for each soft bottom
channel reach before a PCN was
required. One commenter interpreted
the preamble to imply that only unlined.,
basins and channels would require a
PCN and that the regulation itself
should reiterate that requirement.
Following the DE's determination of
the maintenance baseline, which
requires a notice to the Corp>s, a PCN is
required for maintenance activities. We '
believe that there is a need for
notification for maintenance activities to
ensure compliance with the permit
conditions and to monitor maintenance
of the flood control facility. The PCN is
required prior to each maintenance >
activity or a maintenance plan can be
submitted just not to exceed 5 years.
The Corps prefers the.submittal of a 5
year maintenance plan. This is a new
NWP. The Corps will monitor this NWP.
If appropriate, the Corps would consider
proposing to reduce or eliminate the
PCN requirement. Furthermore, if the
project is effectively abandoned due to
lack of proper maintenance, a new,
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65901
( determination of a maintenance baseline
would be required before this NWP
could be used for subsequent
maintenance.
Recommendations for Permit
Conditions: Several commenters
recommended that this NWP be
conditioned to preclude maintenance
work that would result in wetland and/
or riparian habitat impacts. One
commenter suggested the following
wording be added to both the preamble
and the permit itself: "In circumstances
where the DE determines that the
channel proposed for maintenance
provides other significant social or
ecological functions and values that
may be jeopardized, the'Corps will .
exercise its discretionary authority to
require an individual permit." One
commenter suggested that the following
conditions be added to this NWP: (1) All
excavation must have been previously
addressed in the project's original EIS;
(2) the excavation is still necessary to
obtain the project's original goals; and
(3) the benefit of attaining those project
goals still justify the cost of the
environmental impacts that result from
the removal at this time (as opposed to
the time when the original EIS was
completed).
We believe the objectives of these
recommendations are essentially
achieved through the application of the
final wording of the permit, the
requirement to establish a maintenance
baseline, the nationwide permit general
and section 404 only conditions, and
the opportunity for the DE to exercise
discretionary authority and/or require
mitigation for resource impacts.
One commenter requested that the
Corps delete the requirement for an
applicant to specify the disposal site.
The reason for this is that, in many
cases, the disposal site is not known
until after the bids for the project are
submitted, which may occur after the
NWP has been verified. This commenter
suggested that the requirement be
replaced by a commitment from the
applicant to dispose of material at an
upland site. Other commenters
recommended that the NWP be
expanded to allow the disposal material
in jurisdictional areas where the
applicant can show a beneficial use for
its disposal. Another commenter
recommended that the location of the
disposal site be identified only if it is
within the Corps jurisdiction. One
commenter suggested that the NWP
specifically state that this NWP does not
authorize side casting excavated
material into waters of the United
States, agitation dredging, or where
dredged material testing is required.
The NWP does not require that the
disposal site be specified in advance,
however, it does require that dredged
material to be placed in upland areas or
currently authorized disposal areas in
waters of the United States. Use of the
disposal site must also be in compliance
with all Federal, state and local
requirements, as must every aspect of
the project, or the NWP is not valid.
One commenter added that should
such work be allowed, there should be
a requirement to mitigate for
unavoidable impacts to fish and wildlife
•resources. Another commenter was
concerned that mitigation would be
required for projects, especially for
those constructed prior to the enactment
of the Clean Water Act in 1972, causing
ah undue financial burden on
applicants.
The final NWP includes provisions
for the DE to determine the need for
mitigation when determining the
maintenance baseline. In determining
the need for mitigation, the District
Engineer will consider the following
factors: any original mitigation required,
the current environmental setting and
any impacts of the maintenance project
that were not mitigated in the original
construction. The District Engineer will
not delay needed maintenance for
completion of any required mitigation,
provided the DE and the applicant
establish a schedule for the
identification, approval, development,
construction and completion of such
required mitigation.
One commenter requested that they
not be required to submit a new wetland
delineation every five years because of
the significant cost this would cause for
local agencies. The Corps general policy
is that wetland delineations are verified
for no more than 5 years. In those cases
where wetland delineations are •
required, the delineation must have.
been verified within the 5 year period.
Once a delineation has been completed
and verified, subsequent updates and
verifications should, in most cases, be
substantially less costly and time
consuming. A wetland delineation.
would be required to establish the
maintenance baseline. However, for
normal maintenance, a wetland
delineation would not generally be
required, but may be on a case-by-case
basis.
Time Limits and Maintenance
Baseline: Many commenters requested
that no time limits be set for
maintenance intervals, only
demonstration of need. One commenter
pointed out that in some cases it may
take a flood event to know that a facility
needs -maintenance, and little would be
gained by disqualifying projects on the
basis of long maintenance intervals.
Another commenter added that it would
be unfair to penalize older facilities that
have received little maintenance over
the years. A few commenters suggested
that the baseline should be the design
conditions with no set time limits for
maintenance cycles, since such a time
limit would be arbitrary and would not'
relate to the ecological value of a local
project site. One commenter
recommended that the baseline
condition for measurement of impacts
should be the "as-built" or newly
constructed condition.
We concur that no time limits should
be set for maintenance intervals and that
it would be unfair to penalize older
facilities. We have included design
conditions and the "as-built" conditions
as considerations in establishing the
maintenance baseline. Details on the
procedure and considerations for
establishing the maintenance baseline
are included within the NWP
description presented later in this
document under the "Nationwide
Permits and Conditions" section.
However, maintenance work to
maintain the approved flood control
capacity must be accomplished. If the
project or the design capacity is
effectively abandoned or reduced due to
lack of proper maintenance, a new
determination of a maintenance baseline
would be required.
Regionalization: Two commenters
suggested that maintenance of existing
flood control projects should be
exempted from regulation. A few
commenters'suggested replacing this
NWP with each District developing river
' specific regional permits. One
commenter suggested that this NWP
would be more appropriate as a
programmatic general permit because it
would result in the same streamlining of
the process while allowing for a public
agency to administer a jurisdiction-wide
channel maintenance program under
pre-determined criteria for that state.
1 The activities authorized under this
permit are not exempted under the
Clean Water Act and are therefore
regulated under section 404 of the Clean
Water Act. We believe that it is
appropriate to authorize the
maintenance activities specified in the
final NWP; however, districts can and
are encouraged to identify appropriate
regional conditions to ensure minimal .
impacts. We also agree that
programmatic general permits could be
a viable alternative in those cases where
another program meets the objectives .'
and requirements of the Corps
regulatory program.
Endangered Species Act: A few
commenters raised a concern over
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possible impacts to Federally threatened
and endangered species and '
recommended that sufficient evaluation
with the federal agencies be completed
before allowing a project to qualify for
this NWP.
We believe the nationwide general
permit condition addressing the
avoidance of impacts to endangered
species and compliance with the
Endangered Species act is sufficient for
protecting against such impacts.
Furthermore, by verifying an activity is
authorized under NWP 31. the Corps
district will have made a "no affect"
determination based on review of
available data. If a project may affect an
individual species, the Corps will
initiate consultation under § 330.4(f).
Furthermore, endangered species, if not
already addressed in a Corps permit or
Corps constructed project, would be
addressed as a part of the determination
of the maintenance baseline.
Definitions and Clarifications: A few
commenters suggested that the title of
this NWP be changed to "Maintenance
of Existing Flood Control Facilities"
rather than "Projects" to avoid any
Implications that it does not apply to
existing or locally funded "facilities."
One commenter suggested that the word
"previously" be deleted from the text
because "previously" raises the
question of whether or not the NWP
applies to flood control facilities
authorized and constructed subsequent
to the effective date of the NWP, or only
to those existing "previously". One
commenter suggested that "previously
authorized" be changed to "initially
constructed" since the depths and
configurations often have changed from
the basic authorization.
We have changed the word "projects"
to "facilities" as suggested. The term
"previously" has been retained. We
intend to include maintenance activities-
associated with flood control facilities
in future Corps standard individual
permits. We have modified the NWP to
require the DE to consider the difference
between the project authorized and
actually constructed in his
determination of the maintenance
baseline.
One commenter felt that the term
"flood control" project was too vague
and needed to be clarified as to what
could be considered a flood control
project. We believe the term is
sufficiently defined within the language
of the final NWP.
Several commenters requested that
clarifying language be added to the
preamble stating that areas that were
constructed in uplands are outside the
purview of the Corps regulatory process
provided they are maintained. Corps
regulations for implementation of the
regulatory program state that the Corps
does not normally regulate artificial
water bodies constructed in dry land,
but reserves the right on a case-by-case
basis to determine that a particular
waterbody within this category is within
the purview of our regulatory
authorities. More detail on these
provisions can be found at 33 CFR 328.3
and in the preamble to those regulations
in 51 FR 41217. We will continue to
monitor this need and provide
additional clarification as necessary.
A few commenters requested that
"natural" channels be defined to avoid
misinterpretation. One commenter
further suggested that "natural" be
defined as a watercourse that has not
been modified in order to increase its
hydraulic capacity or simply a
previously unaltered1 water course.
Another commenter suggested that the
wording of this NWP be revised to state
that "this NWP authorizes the removal
of sediment and associated vegetation
from flood control facilities, including
natural channels. We believe the text of
the final NWP, which reads: "Only
constructed channels within stretches of
natural rivers that have been previously
authorized as part of ia flood control
facility could be authorized for
maintenance under this NWP,"
sufficiently clarifies those areas which
can be maintained under this NWP.
One commenter felt the term
"maintenance" is vague and that
specific types of maintenance activities
allowed should be fully described and
limited to that which does not impact
the environment and water quality. We
believe the requirement for establishing
a maintenance baseline satisfies this
concern. It will establish the limits of
the maintenance on a case-by-case basis.
32. Completed Enforcement Actions:
The Corps proposed [several changes to
the NWP. We proposed expanding the
scope beyond judicial enforcement
actions to include agreements resulting
from Corps negotiated settlements. We
also proposed clarification that
compliance with the underlying judicial
or administrative decision or agreement
is a condition of the NWP itself, and we
proposed that EPA administrative
settlement agreements could also be
authorized by this permit.
Several commenters favored the
addition of Corps nonrjudicial
settlements to the scppe of activities
authorized by this permit. One
commenter specifically stated that it
would eliminate unproductive
duplication of the Corps evaluation
efforts. Another added that it would
both streamline the process and
expedite restoration work. A few
commenters added that little is served .
by going through an individual permit '
process once the Corps is satisfied with
restoration and mitigation being offered
or required to resolve a violation. One
commenter saw the benefit of enhanced
negotiation with the Corps \yithout
judicial actions. A few commenters
supported extending NWP 32 coverage
to activities authorized under EPA
administrative settlements as well as '
Corps settlements. Conversely,
numerous commenters recommended
that this NWP not be expanded or
reissued. Many commenters were only
opposed to the expansion of the NWP..
Some believed that by including Corps-.'
negotiated settlement agreements permit
approvals would be made behind closed
doors without the opportunity for
public or resource agency comment and
therefore would preclude the due
process of public participation. One
commenter was concerned that it would :
eliminate the opportunity for section
401 water quality certification for after-
the-fact permit (ATF) activities that may ,
have violated state water quality
standards. The Corps will not forego its
normal and required enforcement
procedures at 33 CFR part 326 and 33
CFR 330.6(d)(2) and 330.6(e) prior to
reaching a settlement agreement. The
Corps has concluded that including
agreements resulting from Corps
negotiated settlements and EPA
administrative settlement agreements
would result in substantial work load
reductions and eliminate duplicative
efforts without any loss in resource
protection. Corps settlement agreements
receive thorough"e.Yaluation and are
normally coordinated with the resource
agencies. In those cases where the state
does not certify this permit, the
applicant will be required to obtain
individual section 401 certification
prior to the Corps final approval of the
resolution.
Several commenters suggested ways
to further expand this NWP and one
commenter opposed any threshold
restriction, provided the -net
environmental benefit was positive. ,.
Another commenter believed the NWP
should be expanded to permit future
impacts beyond those only for the
purpose of mitigation, restoration, or
environmental benefit. Some believed
the thresholds of five acres of non-tidal
or one acre of tidal wetlands were
arbitrary and too high. Others believed
that authorizing enforcement actions by
NWP would violate the "similar in
nature" and "minimal impact" standard
of 404(e) of the Clean Water Act. One
commenter suggested that unless the
Corps settlement involved complete
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Federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 /'Notices
65903
restoration, it would -be impossible to
determine that the activities to be
authorized under this NWP would be
minimal impacts or to assess the
cumulative impacts. The Corps has
concluded that the existing thresholds
and scope of the permit cannot be
expanded because we could not ensure
compliance with the "minimal effects"
' threshold for general permits. We have
also concluded that the five acre and
one acre thresholds are adequate for
meeting the "minimal effects" criteria.
The Corps believes that complete
restoration will be achieved, except
where full restoration is either not
practicable or would result in
unnecessary adverse environmental
effects. Therefore, we do not believe
greater than "minimal adverse effects"
would result from this permit.
One commenter believed that the
automatic revocation of the NWP, in
case the permittee failed to comply with
the settlement agreement or judicial
decree, was too harsh and that they
should be allowed to follow the normal
revocation process. We do not believe
this condition is too harsh given that the
permittee, who violated the CWA and
reached a settlement agreement with the
government, once again violated the
CWA. We believe that those individuals
should be, once again, subject to
enforcement/compliance regulations.
One commenter believed NWP 32
encourages citizens to break the law and
noted there is no restoration for the
impacts created by the violation. A
'number of commenters opposed this
NWP because there were no limits as to
potential impacts. One commenter
stated this NWP would eliminate the
404(b)(l) needs and alternative analysis
for projects up to five-acres. As stated in
the proposed NWP, thresholds were
established for the maximum size of the
impact area and whenever possible,
restoration of these areas will be
required to minimize the impacts as
appropriate and practicable. This NWP
is mostly intended for those cases where
the enforcement resolution has been
reached and an ATF permit process is
required. Although a 404(b)(l) off-site
alternatives analysis is not required for
an NWP authorization, on-site
' avoidance is required. Further, off-site
alternatives may tie considered, where
appropriate, during the enforcement
resolution prior to processing the ATF
or this NWP authorization. NWP 32 is
reissued with the changes discussed
above.
33. Temporary Construction, Access
and Dewatering: The Corps proposed
adding the provision from recent
guidance stating that this NWP could be
used for construction activities not
subject to either the Corps or U.S. Coast
Guard regulations. We also proposed
allowing the use of on-site dredged
material for temporary fills, and deleting
the last sentence of the permit, which
stated that the permit did not authorize
activities associated with mining
activities or construction of marina
basins which had not been authorized
by the Corps.
The several comments received on
this permit were nearly equally split
between support for and position to
reissue the permit. Many comments
expressed concern about adverse
impacts from structures and fill
remaining in place without monitoring
or enforcement. The Corps designed this
permit to provide a shortened
administrative process for construction-
required activities that were not
anticipated when the main project was
authorized by another Corps permit
(usually an individual permit) or by a .
Coast Guard permit. We have added
authorization of activities where neither
a Corps nor a Coast Guard permit is
required but a temporary impact to
' waters of the United States occurs in
association with work in the immediate
area for an otherwise upland project.
Structures or fills that remain in place
cannot be permitted by this NWP. The
NWP now clarifies that all activities
authorized by this NWP must be
removed or authorized by another
permit.
One comment recommended that all
fills and restoration be completed
within 90 days of project completion.
We have clarified the requirements of
PCN (General Condition 13) such that
the restoration plan will include a
timetable for removal of the temporary
structures and fills.
One comment concerned the
interpretation of "or for other •
construction activities not subject to the
.Corps or U.S. Coast Guard regulations"
as including maintenance which the
commenter states is not regulated under
33 CFR 324.4(a)(2). The Corps NWP 33
is clear in its intent to authorize only
activities that support some primary
activity that has been permitted or does
not need a permit. The exemption
referenced authorizes maintenance and
reconstruction of facilities, which
means that it exempts only that part of
the facility that was constructed in
jurisdictional waters. NWP 33
authorizes access or construction
techniques to perform the exempt
reconstruction if that access or
technique requires structures or fill
outside the footprint of the facility.
One commenter recommended a
dredging limitation the same as that
required for NWP 19. The Corps
believes that this is too restrictive for a
temporary impact and would
excessively lessen the use of this NWP.
A few'commenters expressed concern
for special aquatic sites with suggestions
that: the permit require the impacted
wetland be restored in 2 years, the
impacted site be self-mitigating, the
Corps ensure that wetland impacts can
be reversed, and a maximum impact of
l/2 acre. We believe that all of these
restrictions are not necessary. Through
the PCN process the Corps will ensure
that impacts are minimized to the
maximum extent practicable.
Another comment expressed concern
regarding downstream flooding. The .
NWP states that near normal
downstream flows must be maintained
and flooding minimized. Section 404-
only Condition 6 also prohibits altering
expected high flows.
One commenter suggested limiting
restoration to special aquatic sites. The
Corps has not adopted this
recommendation because temporary
structural fills in other waters of the
United States, which are not special
aquatic sites, also must be restored
under this NWP. Another commenter
suggested that there no be a notification
for cofferdams and access ramps under
some unspecified size. Another asked
for the PCN to start at 100 cubic yards
or 0.1 of an acre impact. We believe this
is inappropriate as another permit has
been issued for the main project and
cumulative impacts need to be
considered, including potential
alteration of the purpose of the project.
Also, even small cofferdams may have
more than minimal impacts depending
upon the resources of the waterbody.
Construction activities for projects not
requiring a permit may be authorized by
non-notification NWPs if they apply.
Two other commenters recommended
that signs be erected 'to warn boaters of
construction activities and that this
NWP not be used for river boat casino
construction. These are very localized
issues that can be dealt with through
regional conditioning by the districts
and divisions. If the Corps is aware of
high recreation use, placing warning
signs may be an appropriate condition
for some specific NWP authorizations.
NWP 33 is reissued with the proposed
changes.
34. Cranberry Production Activities:
The Corps proposed no changes to this
NWP. Several commenters supported
reissuance, but the great majority of
those commenting on the permit
requested revoking this NWP, based
principally on perceived environmental
impacts and because, according to the
commenters, most cranberry producing
states have denied water quality
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Federal Register / Vol. 61. No. 241 / Friday, December 13. 1996 / Notices
certification. The Corps realizes that
decreases of habitat value and water
quality functions may occur in the
conversion: however, the NWP requires
mitigation to ensure no net loss of
wetlands by acreage. Additionally, any
district may regionally condition the
NWP to restrict its use in particularly
valuable wetlands. Some states, as noted
by several commenters. have denied 401
water quality certification to ensure that
the state can regulate impacts of local
concern. Washington State, for example,
initially denied certification for all
actions under this NWP. Three years ago
the state issued certification except for
forested wetlands and areas that had
never been in cranberry production
historically. Denial by many states does
not imply that a NWP is causing more
than minimal adverse effects, but
simply that the state may have concerns
regarding water quality.
A few commenters requested
removing the no net loss requirement
for purposes of water quality and more
efficient harvesting through the
construction of dikes. The Corps
believes that the mitigation required is
necessary to ensure that no more than
minimal adverse effects will occur. The
Corps believes that extensive
construction of dikes would likely result
in more than minimal adverse effects,
and thus requires evaluation through
the individual permit process.
One commenter stated that upland
alternatives should be selected.
Although it has been demonstrated that
'cranberries can be cultivated in former
uplands (cranberry bogs are wetlands
because of the hydrology that must be
, maintained), this is technically difficult
and typically would not be practicable.
This is particularly true recognizing that
many operators are small family
businesses.
One commenting organization stated
that Section 401 did not apply to
cranberry bog construction because it is
a non-point pollution source. The
activities regulated by the Corps under
NWP 34 involve discharges of dredged
or fill material associated with
expansion, enhancement or
modification of the cranberry bogs.
These discharges of dredged or fill
material are the same as any other fill
pad or land leveling operation. These
types of activities are point source
discharges and a 401 water quality
certification is required.
Two commenters recommended.
' adding taro production to this NWP.
Taro is grown in Hawaii and other
South Pacific islands. We believe this is
a region-specific problem and the Corps
Honolulu District has the option of
developing a regional general permit, if
appropriate. i
In order to verify compliance with the
terms of this NWP, we have added the
requirement to provide a wetland
delineation with the notification. NWP
34 is reissued with the modifications
described above.
35. Maintenance Dredging of Existing
Basins: The Corps proposed no changes
to this NWP. One commenter indicated
that clarification is needed to
unambiguously define and limit what is
meant by canals, basins and slips. This
is a section 10 NWP and the term canal
in this instance is related to navigation.
Therefore, flood control or other canals
that do not normally support navigation
are not covered by this NWP. The term
basin is also intended to relate to
navigation, such as a marina. A marina
basin is defined as the ope^ water
portion of a marina which'is normally
bounded on one or more sides by
uplands or structures (i.e., bulkheads,
walkways, floating or stationary piers
and/or breakwaters). A slip is the open
water area where an individual boat is
• moored and is'normally bounded on
one or more sides by uplands or
structures (e.g., bulkheads, walkways,
piers, piling, etc.). We have modified
the permit by replacing the term
"canals" with the term "channels". We
have made this change to clarify our
intent to allow maintenance dredging of
navigational channels connected to
marina basins.
One commenter suggested that the
NWP be broadened to include
maintenance dredging of previously
authorized intake and discharge
structures and canals for electric power
plants. The commenter added that this
activity is infrequent, typically requiring
maintenance dredging no more often
than every five to tenlyears. We are not
adding such canals because their
primary purpose is not to support
navigation.
,A few commenters ^expressed concern
about the method of disposal related to
waste discharge requirements of boats
using the area and 401 water quality
certification. The states review water
quality concerns under section 401 of
the Clean Water Act and boats must
meet discharge requirements established
by the Coast Guard. Moreover, this NWP
is not for construction of marinas, but
for maintenance dredging of their basins
and access canals.
One commenter suggested that each
Corps district incorporate seasonal
restrictions to limit impacts to
anadromous fish. Another commenter
stated that the NWP Should not be used
to remove natural gravel deposits or
woody debris caused by flooding which
may directly impact stream flow and
may affect anadromous fish. We believe
that these issues can be addressed . •'•]
through regional conditions to this NWP
or by activity-specific conditions '.
required by the DE, where necessary. :
One commenter expressed concern over
the possibility of resuspension of
pollutants accumulated in the
sediments of marina basins during such
maintenance activities. The Corps
shares these concerns and is therefore,
with this publication, requiring that the I
Division Engineers, through the
recommendation of the DEs, regionally
condition this NWP to exclude marinas ,
where there is a high potential for
resuspension of pollutants that may
adversely affect water quality. NWP 35 !
is reissued with clarifications discussed
above. ;
36. Boat Ramps: The Corps proposed
no changes to this NWP. One
commenter suggested that this NWP be
subject to notification requirements.
Another commenter suggested that the
NWP would encourage the construction
of individual boat ramps. A few
commenters suggested that mitigation
be required for lost special aquatic sites
and habitat. A few commenters
requested additional conditions to avoid
impacts to endangered species and fish
spawning seasons, to place unpolluted
fill material, and to limit construction
periods. A few commenters suggested
modifications to the size limits of this ;
NWP.
The Corps notes that no discharge of
fill material would be allowed into
special aquatic sites under this
nationwide permit, and the boat ramps i
authorized are very small. Given this
and the discretionary authority ;
provisions, we believe that the
notification requirement is not
necessary to ensure minimal adverse
effects. The NWP, as .written, adequately
balances the need for public, access to
the nation's waterways while protecting
aquatic resources. The NWP specifies
that unsuitable material that causes
unacceptable chemical pollution, or is
structurally unstable, is not authorized.
We believe the general and special '
conditions in regard to endangered
species and spawning areas,
respectively, are adequate. Additional
measures have been added by the Corps
as regional conditions to address
specific issues. NWP 36 is reissued
without change. '
37. Emergency Watershed Protection:
The Corps proposed no changes to this
NWP. A few commenters wrote to state
their general support for this nationwide
permit. Several commenters believe that
the NRCS is misusing and abusing the
Emergency Waters Protection Program
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65905.
' (EVVPP) and have suggested imposing a
time limit after the occurrence of the
natural disaster/emergency situation for
the project to qualify for this nationwide
permit. It is not always possible to
immediately determine the full scope of
the damages caused by an individual
event. The Corps considers whether or
not the material to be removed was a
result of a flood event through the PCN
process. It is the responsibility of the
NRCS, not the Corps, to determine
whether the project complies with their
program authority. It is the Corps
responsibility to review the project and
concur that the proposal will result in
only minimal impacts and otherwise
comply with the terms and conditions
of the NWP. Some commenters
suggested that we expand this
nationwide permit to include all
emergency response work as a result of
a state or Federal Disaster Declaration
and eliminate the notification
requirement. After each natural disaster/
emergency situation, those responsible
for performing this work must
coordinate with all appropriate agencies
to ensure not only an expeditious
response to the situation, but
compliance with all applicable laws.
Most work of this type is authorized
under Nationwide Permit 3. For EWPP
projects, notification will continue to be
required to ensure that the terms and
conditions are met and only minimal
adverse effects will occur. NWP 37 is
reissued without change.
38. Cleanup of Hazardous and Toxic
Waste: The Corps proposed clarification
as to which projects approved under the
Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA) -do not require
authorization under sections 10 and
404.
Four commenters noted that CERCLA
does not absolve the Corps of its
responsibilities under section 404 or
section 10, and/or recommended
inclusion of language that states that
•section 404(b)(l) compliance is still
necessary unless EPA specifically grants
a waiver of "applicable or relevant and
appropriate requirements" compliance.
One of these commenters also stated
that the final permit should indicate
specifically the substantive
requirements that would apply to
CERCLA actions under this nationwide,
and whether the Corps intends to
encompass all CERCLA actions. One
commenter recommended deleting the
last sentence of the proposed language
regarding CERCLA exemptions. EPA
notes that the new language proposed
for nationwide permit 38 regarding
CERCLA exemptions refers to section
• 121 fe) (1) of CERCLA for activities
carried out under that section, which
only exempts from permit'requirements
activities that are conducted "entirely
on site." They recommend modifying .
the last sentence of the proposed
language to read "Activities undertaken
entirely on a CERCLA site by authority
of CERCLA * * *." They further note
that section 121(e)(l) contains the
restriction that the activity must be
"carried out in compliance with this
section." We concur with this
clarification and have added the
suggested language.
One commenter stated that
nationwide permit 38 illegally delegates
the Corps responsibility to protect
wetlands to other Federal and state
agencies that have very different
missions. The Corps has not delegated
any regulatory responsibility. The
applicant must notify the Corps
according to the notification procedures
and coordination with other pertinent
agencies would be conducted.
Appropriate measures to mitigate
adverse environmental impacts would
be required by the Corps if necessary to
ensure that the adverse effects are
minimal. This commenter also states
that the proposed exemption for EPA-
approved or required projects under
Superfund that do not require a section
404 or section 10 permit has no
statutory basis in the CWA or CERCLA.
We note thatsection 121(e)(l) does
specifically allow for exemptions from
section 404 and section 10, provided the
activities are conducted entirely on-site.
This commenter also notes that no
limits are imposed by this nationwide
permit and' that this violates section
404(e). We disagree. First, there are
multiple environmental reviews
involved in CERCLA clean up activities.
Second, a large project can have
minimal adverse effects depending on
the functions and values of the
impacted waterbody. This commenter
further questioned the validity of the
information provided in the Federal
Register notice on types of potential
contamination sources, assumptions
made regarding quality of containment
technologies, compliance with NEPA by
lack of appropriate specificity, and lack
of demonstration of compliance with
the 404(b)(l) Guidelines by leaving all
standards of approval to EPA or state or
local regulators. The commenter also
encourages the Corps to remain
involved to ensure appropriate
implementation of section 404 and
section 10 requirements with the other
parties involved. We believe that the
information and project specific
evaluation is best left to a case-by-case
review by EPA and the Corps through
the PCN process. We further note that
under EPA's CERCLA guidance,
provisions of the.section 404(b)(l)
Guidelines are considered by EPA.
This commenter recommended
nationwide permit 38 not be reissued
and that the Corps should conduct its
regulatory responsibilities concurrently
with the other agencies.
We believe that the NWP ensures that
wetlands functions and values are
appropriately protected. We also believe
that the nationwide permit as written
provides for such concurrent evaluation,
coordination, and oversight.
One commenter recommended not
reissuing this nationwide permit or
narrowing it to avoid allowing the
dredging of hazardous and/or toxic
materials that have settled in river
bottoms. One commenter recommended
that projects that may affect wetlands or
other special aquatic sites include a' •
mitigation plan sufficient to offset
impacts. Another commenter noted that
specific mitigation requirements are not
mentioned under this nationwide
permit, and notes that mitigation for lost
functions and values should be required
if such functions and values were
present on the site prior to cleanup. One
commenter stated that this nationwide
permit should be limited to projects
impacting less than one acre of waters
of the United States. The notification
procedure allows the relevant agencies
to provide comments regarding
concerns regarding potential
contamination issues or to identify
mitigation needs. If the Corps
determines the project is likely to result
in more than minimal adverse effects,
appropriate mitigation will be required
to reduce adverse environmental effects
below the minimal level, or the DE may
notify the applicant that the project does
not qualify for authorization under the
nationwide permit and instruct the
applicant to seek authorization under an
individual permit. Restricting this
nationwide permit to projects of less
than one acre of impacts to
jurisdictional waters of the United
States would unduly limit its
application. We do not believe that such
a restriction is warranted provided
appropriate mitigation is required by the
Corps through the PCN process.
One commenter supported the
proposal to clarify the scope of this
nationwide permit by recognizing that
activities conducted under the authority
of CERCLA do not require section 404
or section 10 permits and recommended
that language be provided that expressly
notes that the notification procedure is
not applicable for activities conducted
under CERCLA authority. The language
of the NWP explicitly states that Corps
section 404 and section 10 permits are
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not required. Thus, notification to the
Corps is not necessary for those projects
undertaken under authority of CERCLA.
Two commenters recommended that
nationwide permit 38 include activities
undertaken under authorities other than
CERCLA. such as Resource
Conservation and Recovery Act (RCRA)
or state Superfund programs. As stated
in the current and proposed wording,
actions performed, ordered, or
sponsored by a government agency with
established legal or regulatory authority
are authorized under this nationwide
permit.
One commenter noted that section
401 water quality certification and the
Coastal Zone Management Act (CZMA)
consistency could be granted without
additional regional conditions. Such
determinations will be made by each
individual state. NWP 38 is reissued
with the clarification discussed above.
39. Reserved.
40. Farm Buildings: The Corps
proposed correcting the reference to the
"minimization" condition to reflect its
current title, "mitigation" condition. We
also proposed deletion of "agricultural
related structures necessary for farming
activities" to clarify that we intend the
NWP to only authorize farm buildings
such as agricultural sheds, supply
storage, and barns on a farm or ranch.
The NWP is not intended to authorize
production nor warehousing type
facilities.
One commenter recommended that
saltflats or saltponds be added to the.
wetland types excluded from this NWP
due to their inherent values for
sediment retention and wintering
shorebird and waterfowl habitats. Two
commenters recommended deleting the
reference to exclusion of prairie
potholes, playa lakes and vernal pools
to include all wetlands converted or in
agricultural production prior to
December 23, 1985. The commenter also
recommended deletion of the term
"farmed wetlands" to remove a
potential source of confusion, and
recommended adding the phrase "and
agricultural related facilities necessary
for farming activities" at the end of the
first sentence.
We believe these suggestions would
serve to expand this nationwide permit
to allow any and all "agricultural
related facilities." Restricting this
nationwide permit to farm buildings is
the intent. We do not believe it is
necessary to include any and all
possible facilities to be found on farms
across the United States. Restrictions on
farmed wetlands are appropriate
because they are still jurisdictional
waters of the United States. The 404
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65907
issuing this nationwide permit. The
Corps had anticipated that the
regulations would be final by July 1,
1996; however, it was not published
final until after the end of the comment
period for the proposed nationwide
permits. Therefore, we intend to re-
propose NWP B in the Federal'Register
at a future date. Of the many comments
received, approximately half requested
that this nationwide permit not be
issued, mostly based on perceptions that
the permit would result in adverse
impacts to wetlands, while the other
half supported it. The comments already
received will be considered along with
those received.in response to our future
notice of proposed issuance of this
nationwide permit.
Proposed New Nationwide Permit C.
Mining Operations: A large number of
comments were received on this
proposed permit. Through our review of
this proposal we found sand and gravel
mining operations and recreational
mining activities vary greatly across the
country, not only in scope but in types
and levels of impacts as well. We
believe that the development of regional
general permits, including
programmatic general permits based on
state or regional programs, will provide
a more effective process for dealing with
the differing conditions of various
geographical areas of the country. It
would not be productive to attempt to
specify limits to reduce the individual
and cumulative impacts of a NWP for in
stream mining to a minimal level when
a majority of the proponents indicate
that the permit is of little value unless
the allowable level of impact is
increased. Corps districts and divisions
will be encouraged to develop regional
general permits for these activities.
Proposed nationwide permit C is not
issued.
Proposed New Nationwide Permit D.
Maintenance of Existing Flood Control
Projects: This proposed permit is
discussed above in this "Discussion of.
Public Comments and Changes" section
and included below in the "Nationwide
Permits and Conditions" section as
Nationwide Permit 31: "Maintenance of
Existing Flood Control Projects".
IV. Comments and Responses on
Nationwide Permit Conditions
A. General Conditions
1. Navigation: The Corps proposed'no
changes to this condition. There were
no comments received on this
condition. This condition is adopted
without change.
2. Proper Maintenance: The Corps
proposed no changes to this condition.
Two •commenters suggested adding the
.word "facilities," regarding those
activities that are required to be
maintained. The Corps authorizes
maintenance of structures or fill within
its jurisdiction under sections 10 and/or
404. We do not regulate the
maintenance of facilities built on the
structure or fill. For example, if a
business facility (building) on the
upland is not "maintained," while the
barge loading dock is properly
maintained, the Corps would not take
action regarding maintenance of the
building. To avoid any confusion, the
Corps has not added "facilities" to this
condition. This condition is adopted
without change.
3. Erosion and Siltation: The Corps
proposed no changes to this condition.
Several commenters suggested
including state and local erosion and
sediment control laws in the General
Conditions. Corps permits do not
override or obviate the need to comply
with state and local erosion and
siltation control laws. Additionally, the
Corps has no authority to enforce state
and local laws. Therefore, the Corps
believes it is unnecessary and
inappropriate to include state and local
laws. This condition is adopted without
change.
4. Aquatic Life Movement: The Corps
proposed no changes to this condition.
A few commenters indicated that
projects authorized under an NWP that
substantially disrupts aquatic life
movements would not satisfy minimal
impact criteria and should be
considered only through individual
permitting procedures. With the current
wording of this condition, if a project
proposed for an NWP does substantially
disrupt aquatic life movement, this
general condition is not met and the
project cannot be authorized under a
nationwide permit. Additionally, it was
requested that the phrase "unless the
activity's primary purpose is to
impound water" be deleted. 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.
This condition is adopted without
change.
5. Equipment: One commenter
suggested adding to this condition that
all equipment be stored in uplands to
the extent practicable. We believe this
condition is sufficiently clear as stated
and applies only to equipment "working
in wetlands". Storage of equipment in •
wetlands is not addressed because it is
not authorized. This condition is
adopted without change.
6. Regional and Case-by-Case
Conditions: The Corps proposed no
changes to this condition. There were
no comments received on this
condition. We have added a statement
that such conditions will also include
those imposed by states or tribes under
Section 401, which clarifies the current
practice.
7. Wild and Scenic Rivers: We
proposed to allow the use of NWPs in
a component of the National Wild and
Scenic Rivers system after coordination
with the managing agency has resulted
in a determination that the project will
not adversely affect the status of the
river. Most comments supported the
proposed change. No objections to the
proposed change were received. Several
commenters requested that we add
"U.S. Fish and Wildlife Service" after
the "e.g." in the last line because they
administer 2 rivers in the lower 48
states and 7 rivers in Alaska. We will
add this to the nationwide permit
condition. Comments were received
requesting the addition of the following
statement:
This has no effect on procedures
established to notify river management and
study agencies of pending applications for
permits, including conditions negotiated for
General Permits by the Corps and those
agencies. The proposed activity shall not
begin until the applicant has been notified by
the District Engineer1 that the requirements of
the Wild and Scenic Rivers Act have been
met.
None of the nationwide permits or
conditions override or obviate the need
for any other Federal agency's
requirements for permits or
coordination. The Federal agency
responsible for managing the affected
waterway must determine whether all
requirements 'of the Wild and Scenic
Rivers Act have been met. The applicant
may make all required coordination
with the appropriate agency without
involving the Corps of Engineers if there
is no notification requirement for the
nationwide permit authorizing the
proposed project. If the responsible
Federal agency determines the project,
as proposed, does not comply with the
Wild and Scenic Rivers Act, individual
processing of the application is
required. A comment was also received
requesting that the Federal management
agency be required to coordinate with
the applicable state resource agency on
projects proposed for authorization by
nationwide permit in Wild and Scenic
River areas or study areas and that any
state permits required for a proposed
project must be issued before the Corps
provides authorization by a nationwide
permit. The responsible Federal agency
is required to complete all coordination
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of activities as specified in their
regulations. It is not appropriate for the
Corps to instruct these agencies
regarding their program requirements.
This condition is adopted as proposed
with the inclusion of the U.S. Fish and
Wildlife as a Federal management
agency.
8. Tribal Rights: The Corps proposed
no changes to this condition. One
commenter requested inclusion of
language to protect cultural resources,
including those protected by the Native
American Graves and Repatriation Act,
in addition to tribal rights. The Native
American Graves and Repatriation Act
does not apply directly to the Corps
regulatory program. This law is
applicable to federal agencies
conducting work on federal lands but
does not apply to private citizens
conducting work on private lands.
However, many Native American
cultural resources are protected by tribal
rights and therefore have been, and will
continue to be, considered under this
condition. This condition is adopted
without change.
9. Water Quality Certification: The
Corps proposed no changes to this
condition. One commenter suggested
that section 401 water quality
certification and the section 404
authorization procedure should be
combined for Nationwide Permit 26. If
the appropriate State agency issues or
waivers section 401 water quality
certification for any Nationwide Permit,
the authorization process has been
effectively combined. The Clean Water
Act specifically separates these
authorizations so that States may place
more stringent controls on projects to
reduce water quality impacts as
perceived by the State and not limit the
review process to the Federal
perspective. This condition is adopted
without change.
10. Coastal Zone Management: The
Corps proposed no changes to this
condition. A few commenters indicated
that the current announcement process
for Nationwide Permits did not follow
Federal consistency procedures and was
not in compliance with Coastal Zone
Management requirements. One
commenter suggested conditions that
would allow concurrence on
consistency determinations and
indicated that the Nationwide Permits
should be revoked-for a State where.
such conditions for Coastal Zone
Management are not present. Many
commenters stated that determination of
inconsistency with Coastal Zone
Management should invalidate a permit;
and that a requirement for individual
•reviews should not be adopted. If a
. Coastal Zone Management concurrence •
determination is not provided for a
specific nationwide permit, the project
may not proceed until and individual
CZM consistency determination has
been received for the specific proposed
project. The Corps decision that the
project will have minimal impact is not
affected. However, the agency
responsible for the concurrence
determination will review each project
on a case-by-case basis. If the project
specific concurrence determination is
denied, the project may not proceed and
the NWP is denied without prejudice.
One commenter believed that a
Coastal Zone Management concurrence
determination should not apply to flood
control maintenance activities more
than 100 feet upstream of the designated
Coastal Zone. The commenter stated
that the project is outside the designated
coastal zone, this condition does not
apply. The Corps musj: determine
whether or not the impacts of a project
would affect a state's coastal zone. If
project impacts would affect the States
coastal zone, than a consistency
concurrence is required. This condition
is adopted without change.
11. Endangered Species: Although no
changes to this condition were
proposed, we have made the change of
adding language specific to the take of
endangered species as discussed below.
Several commenters sltated that the
Corps must determine compliance with
section 7 of the Endangered Species Act
and that the applicant will not have
sufficient knowledge to make such a
determination. These .commenters assert
that by delegating the section 7 ESA
responsibility, the Corps NWP program
is not in compliance. jA few commenters
requested that the endangered species
condition not apply to species
"proposed for listing1'. Several
commenters requested that a public
notice be issued for all proposals to
obtain public input and environmental
review, or that a universal PCN should
be shared with resource agencies. A few
commenters were concerned that
section 7 has never been implemented
under the NWP process and that NMFS
and USFWS should be consulted prior
to final action. A few jcommenters
recommended that the Corps clarify that
authorization of a project by an NWP
does not authorize thfe taking of an
endangered or threatened species. We
will add a statement to this condition to
clarify this issue. !
Issuing a public notice or sharing
universal PCN's with resource agencies
for input on all proposals would be
unduly burdensome to the Corps and
the regulated public, [and would not
necessarily enhance protection of
endangered species. The Corps believes
that the procedures at 33 CFR 330.1 (e)
and this condition ensure compliance
with the Endangered Species Act (See .
general discussion at the beginning of
the preamble). Finally, the Corps does
conduct section 7 consultations, on both
standard individual permits and
nationwide permits, to ensure ESA
compliance and, as stated above, we are
entering into formal programmatic
section 7 consultation for the NWP
program. The inclusion of species
"proposed for listing" is identified
under the Endangered Species Act and
is used in that context. This condition
is adopted as discussed above.
12. Historic Properties: The Corps
proposed no changes to this condition.
Several commenters do not believe this
. condition ensures compliance with
section 106 of the National Historic
Preservation Act (NHPA) or its
implementing regulation (36 CFR part
800). These commenters encourage
development of a process which will
pre-identify and evaluate historic
properties and cultural resources. Some
commenters suggested limiting this
condition to those activities which may
"adversely" affect historic properties.
We believe that the Corps procedures
outlined in this condition comply with
the requirements at 33 CFR 330.4 (g) and
at 33 CFR part 325, appendix C for
protection of historic properties, which
implements 36 CFR part 800, and fully
satisfy the requirements of the NHPA.
Furthermore, our experience with
authorizing activities by nationwide
permit supports our position. We do not
believe an additional or revised process
is necessary. To change the condition to
reduce the threshold for initiating the
historic property process from "may
affect" to "may adversly affect" would
not be appropriate or in compliance
with Corps regulations. The "may
affect" threshold provides for a process
to determine the affect or no affect on
historic properties. The "not: adversely
affect" determination would be decided
during the process. If during that
process a determination is made that the
activity will not adversly affect then the
project could be authorized by the NWP.
This condition is adopted without
change.
13. Notification: We proposed several
changes to this condition. In summary,.
we proposed to: (1) Contact the agencies
on behalf of the applicant, (2)
discontinue PCN coordination with the
agencies on NWPs 5, 7, 13, 17, 18, and
34, but allow Regional Directors or
Administrators to request coordination,
(3) increase the notification time period
for NWP 26 from 30 to 45 days, and (4)
notify the agencies on NWP 29 and
proposed NWP D (now NWiP 31). Many
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65909
commenters believe that notifying the
agencies is not necessary, many others
believe it is necessary. Some
commenters like the proposed
notification reductions, while others
expressed concern. A number of
commenters believe that there should be
no notification requirements at all. The
primary reasons given were that it
would cause permit delays and that it
was unnecessarily burdensome to the
regulated public; Many other
commenters believe there should be
notifications. The reason for
notifications are to assure minimal
impacts, and to ensure compliance with
the National Historic Preservation Act
and the Endangered Species Act. We
believe that although comments from
the agencies are often helpful in the
permit evaluation, the value.added to
the Corps decision for NWPs 5, 7, 13,
17, 18, and 34 is not adequate to
continue the process. We believe that
the limited resources from all agencies
are better utilized by focusing on
projects with potentially greater
environmental impacts.
Many commenters raised concern
that, by applying compensatory
mitigation in the context of a NWP, the
Corps authorizes activities that, but for
the mitigation, may have more than
minimal adverse environmental effects.
Those commenters were concerned that
the CWA requires that only activities
. with minimal effects may be authorized
by a" general permit. Activities that have
more than minimal adverse effects are
subject to the individual permit process
and the associated analysis of
alternatives, individual public notice
procedures,' and other aspects of
individual review that help to ensure
that potential adverse effects are fully
avoided and minimized before any
activity is approved. .
' Given these concerns, the Corps will
be considering whether or not
•modifications to the mitigation
provisions of the regulations are
appropriate and will be meeting with
other Federal agencies to discuss this
issue. In the interim, the Corps is
seeking specific comment on the use of
compensatory mitigation in the context
of the Nationwide Permit program and
any recommendations for modification
•to the mitigation provisions. Should the
Corps determine that revision to this
policy is appropriate, a rule'making
process to change the regulations at 33
CFR part 330 may be necessary. This
process would include notice and full
opportunity for public participation.
A few -commenters suggested that
NWP 12 needs delineation of special
aquatic sites. We disagree. 'Fills
associated with NWP 12 are temporary
in nature and the areas impacted are to
be returned to original contours and
elevations after the work is completed
for projects not subject to the PCN
process. The Corps evaluates those
projects subject to the PCN process and
will determine whether there are
substantial problems regarding
jurisdiction. •
Several commenters requested we
increase the time allowed for the
agencies to respond. As noted in the
preamble section on NWP 26
notification, we will allow the agencies
an additional 7 calendar days by
extending the maximum additional time
the agency can request to 21 calendar
days. The agency coordination times for
all other NWPs will remain 5 and 14
days. We believe these modifications to
the current times are responsive to the
greatest area of concern, NWP 26, while
not increasing delays for the regulated
public where there is less potential for
more than minimal adverse effects.
One commenter suggested that
notification be required for NWP 23 .
because of the potential for large
projects and significant wetland
impacts. NWP 23 activities, by their
definition, are actions "which neither
individually or cumulatively have a
significant effect on the human
environment," have already gone
through a NEPA analysis, and have
already had a public review and
comment period when they were first
proposed for inclusion under NWP 23.
Furthermore, in some specific cases a
PCN is required in the individual Corps
approval of another agency's categorical
exclusions.
One commenter noted that there are
no consequences for an incomplete
notification, thus, it is not in the
applicant's interest for him to raise all
the issues that may affect his proposal.
The commenter suggested that the
resource agencies have information and
resources that would help identify these
issues and it would be advantageous to
the program for the Corps to coordinate
projects with them before making a
complete determination. The
consequences for submitting an
incomplete notification is a delay in the
Corps evaluation, and hence the
authorization, of the project proposal.
the Corps initial review of PCNs
includes a determination on whether
the PCN is complete. Since most
applicants are trying to reduce the
amount of delay as much as possible,
we believe the incentive to submit a
complete application is adequate.
A number of commenters provided
recommendations for improving the
coordination among agencies at the
local level. The Corps is with this final
package we are issuing today directing
substantial increases in coordination
and communication at the district and
division level. This increased
coordination will be part of developing
regional conditions for the reissued
NWPs, developing replacement NWPs
for NWP 26, endangered species
compliance, and working with the
States. However, we also suggest that
individuals and .agencies contact their
respective Corps districts to provide
those recommendations.
One commenter suggested that the
Corps notify the applicant upon
receiving the PCN and indicate whether
it was complete and when a decision
would be made. The applicant will be
notified if the notification is incomplete
and will be informed regarding what
information is necessary for the
notification to be considered complete.
Several agencies recommended PCN's
for NWP 5, 7, 13, 17, 18, and 34. The
commenters indicate that major impact
projects have been proposed involving
NWP 7 (outfalls) and NWP 13 (bank
stabilization). A commenter requested
that the following list of permits be
coordinated with resource agencies: 7,
12, 13, 17, 18, 21, 26, 27, 29, 34, 35, and
C. Another commenter requested agency
.notifications for 7, 13, 14, 18, 21, 26, 33,
37, 38, and the new NWPs. We have
carefully reviewed all of the requests for
changes to the NWPs for which
notification under General Condition 13
has been requested. Based on this
review, several NWPs will involve
notification coordination with the
• resource agencies, several will be Corps-
only review of the PCN, and several are
subject to the optional process.for
agency coordination. Some projects
authorized under NWP 7 or 13 involve .
major impacts outside of the waters of
the United States. These major impacts
are not within the Corps authority to
regulate or control.
Several commenters suggested
changing the terminology of PCN back
to PDN. The terminology causes
confusion because the regulated activity
is a discharge and construction implies
work on high ground. The term PCN
(pre-construction notification) has been
adopted over the term PDN (pre-
discharge notification) because many of
the NWPs are not authorizing a
discharge, in Section 404 waters, but are
authorizing work in navigable, Section
10, waters. Since these do not involve
authorization of a "discharge", we
believe the term "construction" is more
appropriate for all NWPs. The Corps
does not control or regulate activities in
uplands, including when construction is
initiated, beyond these limited
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circumstances identified in 33 CFR part
324 appendix B, Scope of Analysis. .
A number of commenters believe that
the requirement for the applicant to
notify the FWS and the SHPO speeds up
their permit by allowing them to
develop alternatives and mitigation
measures. They believe that if the Corps
is tasked with this responsibility, their
permit will be delayed and the
applicant would lose control of the
schedule. They also believe that if the
proposal is adopted, these agencies will
not be willing to work directly with the
applicant and will only work through
the Corps, One commenter expressed
concern that the reason for not requiring
applicants to contact the SHPO was
because the SHPO did not want to work
directly with the applicants. The
commenter suggested that this was
counter-productive and that the Corps
should explore ways to ensure that such
organizations cooperate with the permit
applicants early in the process. These
agencies have requested that the Corps
send the PCNs to" them rather than
direct contact between them and the
applicant. This process" ensures that
these commenting agencies only review
active, complete applications. This
process does not preclude an applicant
from contacting the agencies for
Information.
One commenter recommended that
the SHPO be allowed a 30-day review to
ensure that historic resources were
adequately addressed. Another stated
that the SHPO would not do the Corps
work and that data on potential historic
properties should accompany the
transmittal of the PCN, and that any
deadlines for response to the Corps
begin after the receipt of adequate
information. The Corps believes that the
current process provides a reasonable
amount of time for the SHPOs to
provide their views. The intent of the
PCN is to identify if there is a potential
historic property problem, not to
completely resolve such problems. If a
problem regarding an effect on a historic
property is identified during the PCN
process, then the Corps will instruct the
applicant that they cannot proceed with
the project until coordination to resolve
the problem is completed.
Several commenters stated that the
notification process does not allow them
to comment on proposed projects. They
don't believe that the provisions in the
CWA are being met, since the agencies
and the public have no opportunity to
comment. The Corps regulations
establish a process for publishing .
proposed nationwide permits for public
comment (33 CFR part 330). Based on
this process, the Corps issues NWPs that
have procedural steps to ensure agency
coordination and the ability of the Corps
district to require a full public interest
review, where the Corps believes such
review is necessary, through its
discretionary authority.
A couple of commenters suggested a
time threshold for Section 401 water
quality certification that was in line
with the other agency review times. The
Corps regulations provide that project
specific section 401 eyaluations will
generally be completed within 60 days.
However, districts may, working'with
the States, extend this time period not
to exceed 1 year. We do not propose to
change this process. !
One commenter suggested that
extensions be provided to commenting
agencies, or an IP be- required, in
situations where delays are caused by
insufficient or inaccurate maps and
depiction of proposed action. This
commenter also indicated that the
mitigation option of the contribution of
•monies to a wetland trust fund be more
clearly discussed. This commenter also
suggested that the Corps apply
notification condition 13(b)(5)
(restoration plan for temporary fill sites)
to NWP'12 and 15, both of which allow
the temporary placement of dredged or
fill material. Finally, this commenter
suggested' that the Corps extend the
initial comment period for resource
agencies to 7 calendar days for all
NWPs, and eliminate the prohibition on
the Corps responding to agency
comments. The Corps does not
coordinate PCNs with resource agencies
until the PCN is considered complete,
so that the basic information is adequate
' for review. Furthermore, we believe it is
essential to provide ah answer to
applicants within the PCN period of 30
days (45 days for NWP 26). We do not
believe that it would [be beneficial to
explicitly define in lieu fee systems nor
wetland land trusts. These vary around
the country and we Will expect our
districts to ascertain whether or not a
given situation will reasonably ensure
quality and successful mitigation. We
do not believe that any additional
restrictions are necesjsary for either
NWP 12 or NWP 15. We have already
added substantial additional restrictions
to NWP 12. Should a problem arise with
NWP 15, either the Coast Guard or the
Corps will address it|on a case by case
basis. We do not believe that it is
necessary to extend tjhe initial comment
period for the resource agencies from 5
• to 7 days. This period is simply to
determine whether or not site specific,
substantive comments' will be provided.
Finally, we do not believe that the
notification process or environmental
protection would be advanced by
responding to resource agency
comments on PCNs. If any agency ,
wishes to know how the Corps utilized
their comments, that agency can call the
Corps district and discuss the specific
project. We encourage this type of
informal coordination.
One commenter suggested that
inclusion of different times regarding
agency review and response to
applicants for different nationwide
permits would create a lot of confusion.
We carefully considered the concern
that variable comment periods might be
confusing to the commenting agencies
or the regulated public. However, under
our revised NWP 26, we expect a
substantial increase in the number of
PCNs, and the Corps is directing its ,
districts to carefully consider project
impacts and potential mitigation on
most of them. Therefore, we believe the
additional time is necessary for NWP •
26. ;
One commenter suggested that
affected tribes be included in the
notification process. We believe that
since the tribes are inherently aware of
all Corps regulatory matters on tribal
lands, additional notification is • ;
unnecessary. Furthermore, we believe '
that NWP General Condition 8, "Tribal
Rights," is sufficient to address tribal
treaty rights issues, and District
Engineers will notify the tribes
regarding these treaty rights, as
necessary.
We believe that the review of PCNs by
the state does provide valuable
information and we have retained that
provision. However, the optional
coordination procedure is made
available for activities that we believe
will typically be clearly minimal. We
believe that allowing this optional
procedure only for the Federal resource
agencies will adequately ensure
appropriate "coordination. >
. A few corhmenters requested
eliminating the provision authorizing
discharges when a DE does not notify ;
the applicant within a specified time :
frame. We believe that the PCN process .
allows the district adequate time to i
evaluate PCNs and provide the '-,
applicant with an answer. Moreover, we i
believe that we must have a definitive
answer to the applicant at the end of the
30-day (45 days for NWP 26) PCN
period. Creating extensions would result;
in substantial confusion.
One commenter recommended that f
wording of condition 13(f) be changed
to read "* * * with the current
methods required by the Memorandum •
of Agreement among USDA, EPA, and
DO A." This commenter also stated that
condition 13(g) mitigation, should
specify that mitigation banks need to
comply with the 1995 Federal
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Federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 / Notices
65911
Guidance, should include a requirement
to monitor compensatory mitigation
projects for a specified period of time,
abandoned mine lands should have no
contaminants accumulated as a result of
the mining operation, and compensatory
mitigation should be accomplished
prior to initiation of authorized work.
We believe that compliance with
existing conditions of the NWPs and the
fact that requirements for delineations
and mitigation banks are implicitly
clear, based on total program guidance,
make additional guidance on these
issues unnecessary. Regarding timing of
compensatory mitigation, we believe it
is more important to have potentially
high-quality mitigation, such as can be
provided with in lieu fees to states,
locals interests or land trusts, rather
than pushing for mitigation completion
before impacts occur.
One commenter requested that
individuals impacted by a nationwide
• permit should, be notified. We have
followed the clear provisions of 33 CFR
330 regarding notification of the
nationwide permits.
Several commenters requested that
the Corps return to the 1991 wording
regarding including any conditions the
District Engineer deems necessary under
Condition 13(d), and that, if the new
language is retained, a clear explanation
of why this change was made should be
provided. We have reviewed the .
proposed language as well as the 1991 .
language regarding conditions that will
be placed on a PCN verification. We
have decided that the original language,
stating that the District Engineer will
include conditions he deems necessary,
is the appropriate language. This
condition is adopted as discussed
above:
14. Compliance Certification: The
Corps has determined that in
association with our efforts to collect
more accurate data on project impacts
and mitigation, and consistent with our
intent to maximize permittee
compliance, this condition is necessary.
The condition requires the permittee to
certify, in writing, that he has
accomplished the Work as authorized by
the Corps, including any mitigation. The
certification will help the Corps ensure
permit compliance as well as
continuously evaluate mitigation
Success.
15. Multiple Use of Nationwide
Permits: In response to the concerns
raised regarding the stacking of NWPs,
the Corps has determined that a
notification to the Corps, where any
NWP 12 through 40 is combined with
any other NWP 12 through 40, as part
of a single and -complete project, should
be required to ensure that the effects
will be minimal. This notification will
be reviewed by the Corps only.
Coordination with the resource agencies
is not required, but may be done on a
case-by-case -basis when determined by
the District Engineer to be necessary.
Furthermore, no notification is required
to the Corps when any NWP 1 through
11 is combined with any other NWP.
The issue of stacking of NWPs is
discussed in more detail in the
"Stacking of NWPs" section of this
Preamble.
B. Section 404 Only Conditions
1. Water Supply Intakes: The Corps
proposed no changes and there were no
comments on this condition. The
condition is adopted without change.
2. Shellfish Production: The Corps
proposed no changes and there were no
'comments on this condition. The
condition is adopted without change.
3. Suitable Material: The Corps
proposed no changes to this condition.
One commenter suggested that this
condition should include a certification
for the toxicity testing of the fill
material. We believe the permittee is
responsible for taking reasonable
measures to ensure that suitable fill
material is free from toxic pollutants.
This suggestion would be an
unreasonable requirement for minor
projects with little likelihood of the
potential for toxic pollutants in toxic
amounts. Furthermore, the NWP
restricts the use of certain materials. In
addition, for those projects with a
Preconstruction Notification, the DE
will require testing if the DE has reason
to believe the material may be
contaminated. Another commenter
suggested that asphalt be added to our
list of unsuitable materials specifically
mentioned in this condition. Since this
has been a general misunderstanding
throughout the country that has resulted
in several violations, we agree with this
commenter and have added this to the
condition. This condition has been
modified as discussed above.
4. Mitigation: The Corps proposed a
change to this condition that Would
allow off-site mitigation in lieu of on-
site mitigation, if it is the
environmentally preferred option.
Several commenters were opposed to
the proposed change to this condition.
They believed the change would result
in one or more of the following: A more
subjective evaluation would occur; the
evaluation would focus solely on a
project's benefit to the environment
instead of the Corps process of
balancing various public interest factors;
the District Engineer would be required
to evaluate one wetland type against
another; and time requirements and
monetary costs would be increased for
the applicants. Several other
commenters were concerned that the
proposed modification sidesteps the
application of the mitigation sequencing
process (avoidance, minimization, and
compensation) and would allow
evaluation of compensation concurrent
with avoidance and minimization. Two
commenters believed that the proposed
evaluation process would allow "buy
down" of impacts via compensation in
order to result in a minimal net effect
determination. Several commenters felt
that mitigation should be eliminated as
a condition since activities requiring •
mitigation, by definition, include more •
than minimal environmental impacts.
One commenter stated that the proposal
added no value in protecting or
preserving wetlands. A few commenters
supported the clarification and
requirement for mitigation. One
commenter recommended that the
District Engineer have the ability to
approve mitigation on-site, off-site, or at
an established mitigation bank. Another
commenter suggested that the U.S. Fish
and Wildlife Service and U.S.
Environmental Protection Agency
should have the opportunity to
comment on the results of the district
Engineer's evaluation. One commenter
criticized the general permit program for
allowing wetland losses without
avoidance of impacts or with no
mitigation at all.
This condition requires that the
permittee avoid and minimize
discharges of dredged or fill material at
the project site to the maximum extent
practicable. This condition does not
address the issue of requiring
compensatory mitigation to reduce a
project's impacts to the minimal effect
level. This issue is discussed in the
preamble in the discussion of General
Condition 13. Furthermore, the
"sequencing" requirement for
individual permits for off-site avoidance
under the section 404(b)(l) Guidelines
does not apply to general permits. (See
40 CFR 230.7.) The proposed change
was for allowing some projects, with
minimal adverse effects, to be' allowed
less on-site avoidance and minimization
than to the maximum extent practicable,
provided off-site mitigation is provided
such that there are more environmental
benefits. We believe that where there is
more environmental benefit from such
mitigation, it should be allowed. The
District Engineer will review and
consider such a proposal, but will only.
approve it if the District Engineer
determines that there is clear
environment benefit. This-condition is
adopted as proposed.
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65912
Federal Register / Vol. 61. No. 241 / Friday, December 13, 1996 / Notices
5. Spawning Areas: The Corps
proposed no changes to this condition.
One commenter suggested that we ban
discharges in spawning areas during
spawning season. Another commenter
suggested that discharges also be
avoided during the incubation season.
In addition to this condition. District
and Division Engineers can and do add
local restrictions, by regionally
conditioning the NWP, to address
certain activities along some waters at
important times of the year for
spawning activities. We believe that
since these impacts vary from
waterbody to waterbody and by type of
activity, that it is best handled by
specific regional conditions. This
condition is adopted without change.
6. Obstruction of High Flows: The
Corps proposed no changes to this
condition. There were no comments on
this condition. This condition is
adopted without change.
7. Adverse Effects From
Impoundment: The Corps proposed no
changes to this condition. A couple of
commenters suggested modifying this
condition to require avoidance of
impoundment impacts. We believe that
this condition has been successful in
ensuring that the impacts will be
minimal and at the lowest level
practicable. This condition is adopted
without change.
8. Waterfowl Breeding Areas: The
Corps proposed no changes to this
condition. One commenter suggested
disallowing any discharges within
waterfowl breeding areas. Another
commenter suggested that we include
breeding areas for shorebirds and
neotropical migratory songbirds. Trie
Corps believes this would place an
unreasonable and overly restrictive
limitation on this NWP, and that the
condition, as worded, provides
sufficient protection. This condition is
adopted without change.
9. Removal of Temporary Fills: The
Corps proposed no changes to this
condition. A few commenters suggested
requiring the disturbed area be
revegetated with indigenous plant
species. We believe the conditions
imposed on NWPs allowing for
temporary fills will enable the area to
revegetate naturally with native species
once the area is restored to its
preexisting elevation. This condition is
adopted without change. ,
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://wetland.usace.mil/.
Alabama .
Mobile District Engineer, ATTN: CESAM-
OP-S. P.O. Box 2288, Mobile, AL 36628-
0001
Alaska
Alaska District Engineer, ATTN: CENPA-
CO-R, P.O. Box 898, Anchorage, AK
99506-0898 ;
Arizona
Los Angeles District Engineer, ATTN:
CESPL-CO-R, P.O. Box 2711, Los Angeles,
CA 90053-2325 ]
Arkansas I
Little Rock District Engineer, ATTN:
CESWL-CO-R, P.O. Box 867, Little Rock,
AR 72203-0867 !
California
Sacramento District Engineer, ATTN:
' CESPK-CO-O, 1325 J Street, Sacramento,
CA 95814-4794
Colorado
Albuquerque District Engineer, ATTN:
CESWA-CO-R, 4101 Jefferson Plaza NE,
Rm 313, Albuquerque, NM 87109-3435
Connecticut
New England Division Engineer, ATTN:
CENED-OD-R. 424 Trapelo Road,
Waltham, MA 02254-9149
Delaware
Philadelphia District Engineer, ATTN:
CENAP-OP-R, Wannamaker Building. 100
Penn Square, East Philadelphia, PA 19107-
3390
Florida
Jacksonville District Engineer, ATTN:
CESAJ-RD, P.O. Box 4970, Jacksonville, FL
32232-0019 i
Georgia |
Savannah District Engineer, ATTN: CESAS-
OP-F, P.O. Box 889, Savannah, GA 31402-
0889 ;
Hawaii i •
Honolulu District Engineer. ATTN: CEPOD-
ET-PO. Building 230, Fort Shatter,
Honolulu. HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN:
CENPW-OP-RF, Building 602. City-
' County Airport, Walla Walla, WA 99362-
9265 ',
Illinois
Rock Island District Engineer, ATFN:
CENCR-OD-S, P.O. Box 2004, Rock Island,
IL 61201-2004
Indiana
Louisville District Engineer. ATTN: CEORL-
OR-F. P.O. Box 59. Louisville. KY 40201-
0059
Iowa
Rock Island District Engineer, ATTN:
CENCR-OD-S, P.O. Box 2204, Rock Island.
IL 61201-2004
Kansas
Kansas City District Engineer, ATTN:
CEMRK-OD-P, 700 Federal Building. 601
E. 12th Street, Kansas City. MO 64106-
2896
Kentucky
Louisville District Engineer, ATTN: CEORL-
OR-F, P.O. Box 59, Louisville, KY 40201-
0059
Louisiana
New Orleans District Engineer, ATTN:
CELMN-OD-S, P.O. Box 60267, New
Orleans, LA 70160-0267
Maine
New England Division Engineer, ATTN:
CENED-OD-R, 424 Trapelo Road,
Waltham, MA 02254-9149
Maryland
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
21203-1715
Massachusetts
New England Division Engineer, ATTN:
CENED-OD-R. 424 Trapelo Road,
Waltham, MA 0225 5-9149
Michigan
Detroit District Ei,
CO-L, P.O. Box
1027
c-r. ATTN: CENCE-
:. Detroit, MI 48231-
Minnesota
St. Paul District Engineer, ATTN: CENCS-
CO-R, 190 Fifth Street, East. St. Paul, MN
55101-1638
Mississippi
Vicksburg District Engineer, ATFN: CELMV-
CO-0. P.O. Box 80, Vicksburg, MS 39180-
0080
Missouri
Kansas City District Engineer, ATTN:
CEMRK-OD-P, 700 Federal Building, 601
E. 12th Street. Kansas City, MO 64106-
2896
Montana
Omaha District Engineer, ATTN: CEMRO-
OP-R, P.O. Box 5. Omaha, NE 68101-0005
Nebraska
Omaha District Engineer. ATTN: CEMRO-
OP-R, 215 North 17th Street, Omaha, NE
68101-4978
Nevada
Sacramento District Engineer, ATTN:
CESPK-CO-O, 1325 J Street. Sacramento,
CA 95814-2922
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federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 / Notices
65913
»New Hampshire
New England Division Engineer, ATTN:
CENED-OD-R, 424 Trapelo Road.
Waltham, MA 02254-9149
New Jersey
Philadelphia District Engineer, ATTN:
CENAP-OP-R, Wannamaker Building. 100
Penn Square East, Philadelphia, PA 19106-
2991
New Mexico
Albuquerque District Engineer, ATTN:
CESWA-CO-R, 4101 Jefferson Plaza NE,
Rm 313, Albuquerque, NM 87109-3435
New York
New York District Engineer, ATTN: CENAN-
OP-R, Jacob K. Javits Federal Building,
New York, NY 10278-0090
North Carolina
Wilmington District Engineer, ATTN:
CESAW-CO-R, P.O. Box 1890.
Wilmington. NC 28402-1890
North Dakota
Omaha District Engineer. ATTN: CEMRO-
OP-R, 215-North 17th Street, Omaha, NE
68102-4978
Ohio
Huntington District Engineer, ATTN:
CEORH-OR-F, 502 8th Street, Huntington,
WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-OD-
R, P.O. Box 61. Tulsa, OK 74121-0061
Oregon
Portland District Engineer, ATTN: CENPP-
PL-R, 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 Division Engineer, ATTN:
CENED-OD-R. 424 Trapelo Road,
.Waltham, MA 02254-9149
South Carolina
Charleston District Engineer, ATTN: CESAC
CO-P, P.O. B,ox 919. Charleston, SC
29402-0919
South Dakota.
Omaha District Engineer, ATTN: CEMRO-
OP-R, 215 North 17th Street, Omaha, NE
68102-4978
Tennessee
Nashville District Engineer, ATTN: CEORN-
OR-F, P.O. Box 1070, Nashville, TN
37202-1070 '
Texas
Ft. Worth District Engineer, ATTN: CESWF-
OD-R, P.O. Box 17300, Ft. Worth, TX.
76102-0300
Utah '
Sacramento District Engineer, ATTN:
CESPK-CO-O, 1325 J Street, CA 95814-
4794
Vermont
New England Division Engineer, ATTN:
CENED-OD-R. 424 Trapelo Road,
. Waltham, MA 02254-9149
Virginia
Norfolk District Engineer, ATTN: CENAO-
OP-P, 803 Front Street, Norfolk, VA
23510-1096
Washington
Seattle District Engineer, ATTN: CENPS-OP-
RG, P.O. Box 3755, Seattle, WA 98124-
2255
West Virginia
Huntington District Engineer, ATTN: .
CEORH-OR-F, 502 8th Street. Huntington,
WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CENCS-
CO-R, 190 Fifth Street, East, St. Paul. MN
55101-1638
Wyoming
Omaha District Engineer, ATTN: CEMRO-
OP-R. 215 North 17th Street, NE 68102-
4978
District of Columbia
Baltimore District Engineer, ATTN: CENAB-
OP-R, P.O. Box 1715, Baltimore, MD
' 21203-1715
Pacific Territories
Honolulu District Engineer, ATTN: CEPOD-
ET-PO, Building 230, Fort Shafter.
Honolulu, HI 96858-5440
Puerto Rico & Virgin Is
Jacksonville District Engineer, ATTN:
CESAJ-RD, P.O. Box 4970, Jacksonville, FL
32232-0019
Approved:
Russell L. Fuhrman,
Major General. U.S. Army. Director of Civil
Works.
Accordingly, these Nationwide
Permits are issued as follows:
Nationwide Permits and Conditions
A. Index of the Nationwide Permits and
Conditions
;_ 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
8. Oil and Gas Structures
9. Structures in Fleeting and Anchorage
Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Discharges
13. Bank Stabilization
14. Road Crossings
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. Headwaters and Isolated Waters
Discharges
27. Wetland and Riparian Restoration
and Creation Activities
28. Modifications of Existing Marinas
29. Single-Family Housing
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood
Control Projects
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. Reserved
40. Farm Buildings
Nationwide Permit Conditions
General Conditions:
1. Navigation
2. Proper Maintenance
3. Erosion and Siltation 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 Certification
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification
14. Compliance Certification
15. Multiple Use of Nationwide Permits.
Section 404 Only Conditions
1. Water Supply Intakes
2. Shellfish Production
3. Suitable Material
4. Mitigation
5. Spawning Areas
6. Obstruction of High Flows
7. Adverse Effects from Impoundments
8. Waterfowl Breeding Areas
9. Removal of Temporary Fills
B. Nationwide Permits and Conditions
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.
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65914
Federal Register / Vol. 61, No. 241 / Friday. December 13. 1996 / Notices
(See 33 CFR part 66, chapter I.
subchapter C). (Section 10)
2. Structures in Artificial Canals:
Structures constructed in artificial
canals within principally residential
developments where the connection of
the canal to a navigable water of the
United States has been previously
authorized (see 33 CFR 322.5(g)).
(Section 10)
3. Maintenance: The repair,
rehabilitation, or replacement of any
previously authorized, currently
serviceable, structure or fill, or of any
currently serviceable structure or fill
authorized by 33 CFR 330.3, provided
that the structure or fill is not to be put
to uses differing from those uses
specified or contemplated for it in the
original permit or the most recently
authorized modification. Minor
deviations in the structure's
configuration or filled area including
those due to changes in materials,
construction techniques, or current
construction codes or safety standards
which are necessary to make repair,
rehabilitation, or replacement are
permitted, provided the 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
destroyed by storms, floods, fire or other
discrete events, provided the repair,
rehabilitation, or replacement is
commenced or 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. Maintenance dredging
and beach restoration are not authorized
by this NWP. (Sections 10 and 404)
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 b'e present in a given year.).
This NWP does not authorize artificial
reefs or impoundments and semi-
impoundments of wateb of the United
States for the culture or holding of
motile species such as lobster, or the use
of covered oyster trays tor 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 fcubic yards
provided the permitte^ notifies the
District Engineer in accordance with the
"Notification" general condition.
(Sections 10 and 404),
6. Survey Activities: Survey activities
including core sampling, seismic
exploratory operations, plugging of
seismic shot holes and other
exploratory-type bore .holes, soil survey
and sampling, and historic resources
surveys. Discharges and structures
• associated with the recovery of historic
resources are not authorized by this
NWP. Drilling and the discharge of
excavated material from test wells for
oil and gas exploration is not authorized
by this NWP; the plugging of such wells
is authorized. Fill placed for roads, pads
and other similar activities is not
authorized by this NWP. The NWP does
not authorize any permanent structures.
The discharge of drilling muds and
cuttings may require a permit under
section 402 of the Clean Water Act.
(Sections 10 and 404)
7. Outfall Structures. Activities
related to 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 Clean Water
.Act), provided that the permittee
notifies the District Engineer in
accordance with the!"Notification"
general condition. (Also see 33 CFR
330.1 (e)). Intake structures per se are not
included—only those directly
associated with an outfall structure.
(Sections 10 and 404)
8. Oil and Gas Structures. Structures
for the exploration, production, and s
transportation of oil, gas, and minerals
on the outer continental shelf within
areas leased for such purposes by the
Department of the Interior, Minerals
Management Service. 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(0). 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 such areas
have been established for that purpose
by the U.S. Coast Guard. (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 Discharges. Discharges
of dredged or fill material associated
with excavation, backfill or bedding for
utility lines, including outfall and
intake structures, 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, liquefiable, or slurry
substance, for any purpose, and any
cable, line, or wire for the transmission >
for any purpose of electrical energy,
telephone and telegraph messages, and
radio and television communication.
The term "utility line" does not include
activities which drain a waiter of the
United States, such as drainage tile;
however, it does apply to pipes
conveying drainage from another area.
This NWP authorizes mechanized
landclearing necessary for the
installation of utility lines, including
overhead utility lines, provided the
cleared area is kept to the minimum
necessary and preconstruction contours
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Federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 /Notices
65915
are maintained. However, access roads,
temporary or permanent, or foundations
associated with overhead utility lines
are not authorized by this NWP.
Material resulting from trench
excavation may be temporarily sidecast
(up to three months) into waters of the
United States, provided that the
material is not placed in such a manner
that it is dispersed by currents or other
forces. The DE may extend the period of
temporary side-casting not to exceed a
total of 180 days, where appropriate. ,
The area of waters of the United States
that is disturbed must be limited to the
minimum necessary to construct the
utility line. In wetlands, the top 6" to
12" of the trench should generally be
backfilled with topsoil from the trench.
Excess material must be removed to
upland areas immediately upon
completion of construction. Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of the utility line. (See 33
CFR part 322).
Notification: The permittee must
notify the district engineer in
accordance with the "Notification"
general condition, if any of the
following criteria are met:'
(a) Mechanized landclearing in a
forrested wetland;
(b) A Section 10 permit is required for
the utility line;
(c) The utility line in waters of the
United States exceeds 500 feet; or,
; (d) The utility line is placed within a
jurisdictional area (i.e., a water of the
United States), and it runs parallel to a
streambed that is within that
jurisdictional area. (Sections 10 and
404)
13. Bank Stabilization. Bank
stabilization activities necessary for
erosion prevention provided the activity
meets all of the following criteria:
a. No material is placed in excess of
the minimum needed for erosion
protection;
b. The bank stabilization activity is
less than 500 feet in length;
c. The activity will not exceed an
average of one cubic yard per running
foot placed along the bank below the
plane of the ordinary high water mark
or the high tide line;
' d. No material is placed in any special
aquatic site, including wetlands;
e. No material is of the type, or is
placed in any location, or in any
manner, so as 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 maybe 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 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 a water of the Unitied
States. (Sections 10 and 404)
14. Road Crossings. Fills for roads
crossing waters of the United States
(including wetlands and other special
aquatic sites) provided the activity
meets all of the following criteria:
a. The width of the fill is limited to
the minimum necessary for the actual
crossing;
b. The fill placed in waters of the
United States is limited to a filled area
of no more than Vb acre. Furthermore,
no more than a total of 200 linear feet
of the fill for the roadway can occur in
special aquatic sites, including
wetlands;
c. The crossing is culverted, bridged
or otherwise designed to prevent the
restriction of, and to withstand,
expected high flows and tidal flows, and
to prevent the restriction of low flows
and the movement of aquatic organisms;
d. The crossing, including all
attendant features, both temporary and
permanent, is part of a single and
complete project for crossing of a water
of the United States; and,
e. For fills in special aquatic sites,
including wetlands, the permittee
notifies the District Engineer in
accordance with the "Notification"
general condition. The notification must
also include a delineation of affected
special aquatic sites, including
wetlands.
This NWP may not be combined with
NWP 18 or NWP 26 for the purpose of
increasing the footprint of the road
crossing. Some road fills may be eligible
for an exemption from the need for a
Section 404 permit altogether (see 33
CFR 323.4). Also, where local
circumstances indicate the need,
District Engineers will define the term
"expected high flows" for the purpose
of establishing applicability of this
NWP. (Sections 10 and 404)
15. U.S. Coast Guard Approved
Bridges. Discharges of dredged or fill
material incidental to the construction
of bridges across navigable waters of the
United States, including cofferdams,
abutments, foundation seals, piers, and
temporary construction and access fills
provided such discharges have been
authorized by the U.S. Coast Guard as
part of the bridge permit. Causeways
and approach fills are not included in
this NWP and will require an individual
or regional Section 404 permit. (Section
404)
16. Return Water From Upland
Contained Disposal Areas. Return water
from an upland, contained dredged
material disposal area. The dredging
itself may require a section 404 permit
(33 CER 323.2^)), but will require a
Section 10 permit if located in navigable
waters of the United States. 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 thus 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 sta.te through the
Section 401 certification procedures.
(Section 404)
17. Hydropower Projects: Discharges
of dredged or fill material associated
with (a) small hydropower projects at
existing reservoirs where the project,
which includes the fill, are licensed by
the Federal Energy Regulatory
Commission (FERC) under the Federal
Power Act of 1920, as amended; and has
a total generating capacity of not more
than 5000 KW; and the permittee
notifies the District Engineer in
accordance with the "Notification"
general condition; or (b) hydropower
projects for which the FERC has granted
an exemption from licensing pursuant
to. section 408 of the Energy Security
Act of 1980 (16 U.S.C. 2705 and 2708)
and section 30 of the Federal Power Act,
as amended; provided the permittee
notifies the District Engineer in
accordance with the "Notification"
general condition. (Section 404)
18. Minor Discharges: Minor
discharges of dredged or fill material
into all waters of the United States
provided that the' activity meets all of
the following criteria:
a. The quantity of discharged material
and the volume of excavated area does
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 1/10 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
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65916
Federal Register / Vol. 61, No. 241 / Friday. December 13. 1996 / Notices
drained so that they would no longer be
a water of the United States 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
see33CFR330.1(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.
e. This NWP can not be used in
conjunction with NWP 26 for any single
and complete project. (Sections 10 and
404)
19. Minor Dredging: Dredging of no
more than 25 cubic yards below the
plane of the ordinary high water mark
or the mean high water mark from
navigable waters of the United States
(i.e., section 10 waters) as part of a
single and complete project. This NWP
does not authorize the dredging or
degradation through siltation of coral
reefs, sites that support submerged
aquatic vegetation (including sites
where submerged aquatic vegetation is
documented to exist, but may not be
present in a given year), anadromous
fish spawning areas, or wetlands, or the
connection of canals or other artificial
waterways to navigable waters of the
United States (see 33 CFR 322.5(g)).
(Sections 10 and 404)
20. Oil Spill Cleanup: Activities
required for the containment and
cleanup of oil and hazardous substances
which are subject to the National Oil
and Hazardous Substances Pollution
Contingency Plan (40 CFR part 300)
provided that the work is done in
accordance with the Spill Control and
Countermeasure Plan required by 40
CFR part 112.3 and any existing State
contingency plan and provided that the
Regional Response Team (if one exists
in the area) concurs with the proposed
containment and cleanup action.
(Sections 10 and 404)
21. Surface Coal Mining Activities:
Activities associated with surface coal
mining activities provided they are
authorized by the Department of the
Interior, 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. The notification must
include an OSM or state approved
mitigation plan. 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, the notification must also
include a delineation of affected special
aquatic sites, including wetlands. (Also
see 33 CFR 330.1(e)) (Sections 10 and
404) I
22. Removal of Vessels: Temporary
structures or minor discharges of
dredged or fill material required for the
removal of wrecked, abandoned, or
disabled vessels, or the removal of man-
made obstructions to navigation. This
NWP does not authorize the removal of
vessels listed or determined eligible for
listing on the National Register of
Historic Places unless; the District
Engineer is notified and indicates that
there is compliance with the "Historic
Properties" general condition. This
NWP does not authorize maintenance
dredging, shoal removal, or river bank
snagging. Vessel disposal in waters of
the United States 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 (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. Prior
to 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(g)-0) is permitted pursuant to *
section 10 of the Rivers and Harbors Act
of 1899. Those activities which 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,
homes, parking areas, storage areas and
other such structures. Housepads or
other building pads are also not
included in this NWP. The structure
itself may require a section 10 permit if
located in navigable waters of the
United States. (Section 404)
26. Headwaters and Isolated Waters
Discharges: Discharges of dredged or fill
material into headwaters and isolated
waters provided that the activity meets
all of the following criteria:
a. The discharge does not cause the
loss of more than 3 acres of waters of the
United States nor cause the loss of
waters of the United States for a
distance greater than 500 linear feet of
the stream bed;
b. For discharges causing the loss of
greater than Vb acre of waters of the
United States, the permittee notifies the
District Engineer in accordance with the
"Notification" general condition;
c. For discharges causing a loss of l/a
acre or less of waters of the United
States the permittee must submit a
report within 30 days of completion of
the work, containing the information
listed below;
d. 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. l(e)); and
e. The discharge, including all
attendant features, both temporary and
permanent, is part of a single and
complete project. Note, this NWP will
expire on February 11,1999.
For the purposes of this .NWP, the
acreage of loss of waters of the United
States includes the filled area plus
waters of the United States that are
adversely affected by flooding,
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Federal Register / Vol. 61. No. 241 / Friday. December 13.
1996 / Notices
65917
excavation or drainage as a result of the
•project. The 3 acre and >A acre limits of
NWP 26 are absolute, and cannot be
increased by any mitigation plan offered
by the applicant or required by the
District Engineer. Whenever any other
NWP is used in conjunction with this
NWP. the total acreage of impacts; to
waters of the United States of all NWPs
combined, can not exceed 3 acres.
Subdivisions: For'any real estate
subdivision created or subdivided after
October 5, 1984, a notification pursuant
' to subsection (b) of this NWP is required
for any discharge which would cause
the aggregate total loss of waters of the
United States for the entire subdivision
to exceed Va acre. Any discharge in any
real estate subdivision which would
cause the aggregate total loss of-waters
of the United States in the subdivision
to exceed 3 acres is not authorized by
this NWP; unless the District Engineer
exempts a particular subdivision or
parcel by making a written
' 'determination that: (1) The individual
and cumulative adverse environmental
effects would be minimal and the
property owner had, after October 5,
1984, but prior to February 11, 1997,
committed substantial resources in
reliance on NWP 26 with regard to a
subdivision, in circumstances where it
would be inequitable to frustrate the
property owner's investment-backed
expectations, or (2) that the individual
and cumulative adverse environmental
effects would be minimal, high quality
wetlands would not be adversely
affected, and there would be an overall
benefit to the aquatic environment.
Once the exemption is established for a
subdivision, subsequent lot
development by individual property
owners may proceed using NWP 26. For
purposes of NWP 26, the term "real
estate subdivision" shall be interpreted
' to include circumstances where a
landowner or developer divides a tract
of land into smaller parcels for the
purpose of selling, conveying,
transferring, leasing, or developing said
parcels. This would include the entire
area of a residential, commercial or
other real estate subdivision, including
all parcels and parts thereof.
Report: For discharges causing the
loss of Vb acre or less of waters of the
United States the permittee must submit
a report within 30 days of completion of
the work, containing the following
information:
(a) Name, address, and telephone
number of the permittee;
(b) Location of the work;
-------
e. An individual may use this NWP
only for a single-family home for a
ee
P~"r^NWP may not be used in
ion with NWP 14. NWP 18, or
maintained adjacent to all open water
todtes, stream^ 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 United
States includes the Filled area
previously permitted, the proposed
filled area, and any other waters of the
United States that are adversely affected
bv flooding, excavation, or drainage as
a result of the project. Whenever any
other NWP is used in conjunction with
this NWP. the total acreage of impacts
to waters of the United States of all
NWPs combined, can not exceed \U
acres This NWP authorizes activities
• only by individuals; for this purpose.
"individual" refers to a na ural
the term "individual" reiers to a naiu
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 (m
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
XetodWidual (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
and State-owned or managed property,
for the purpose of continuing ongoing.
site-specific, wildlife management
activities where soil manipulation is
used to manage habitat and feeding
areas for wildlife. Such activities
include, but are not limited to: The
repair, maintenance or replacement ot
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
1 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 authprize converting
wetlands to uplands. ta^ocun^n«"^4?r
other open water bodies. (Section 404)
31. Maintenance of Existing Flood
Control Facilities: Discharges of dredged
or fill material for the maintenance ot
existing flood control facilities.
including debris basins, retention/
detention basins, and channels that
were (i) previously authorized by the
Corps by individual permit, general
permit, or by 33 CFR 330.3 and _
constructed or (ii) constructed by the
Corps and transferred to a local sponsor
for operation and maintenance. 1 he
maintenance is limitedjto that approved
in a maintenance baseline
determination made by the district
engineer (DE). The prospective
permittee will provide the DE with
sufficient evidence for the DE to
determine the approved and constructed
baseline. Subsequent to the
determination of the maintenance
baseline and prior to any mainte"a™e .
work the permittee must notify the Db
^accordance with the "Notification
rz^ -- — --
capacity and for how long present vs.
original flood control needs, and it
sensitive/unique functions and values
may be adversely affected. Revocation
or modiFication of the final
determination of the maintenance
baseline can only be done in accordance
wUh 33 CFR 330.5. This NWP can not
be used until the DE determines the
maintenance baseline and the need for
mitigation and any regional or activity-
specific conditions. The maintenance
baseline will only be determined once
and will remain valid for any
subsequent reissuance of this NWP.
However, if the project is effectively
abandoned or reduced due to lack of
proper maintenance, a new
determination of a maintenance baseline
would be required before this NWP
could be used for subsequent
AH areuB^ L^orial must be placed
in an upland site or a currently
authorized disposal site in waters of the
United States, and proper siltation
controls must be used. This NWP does
not authorize the removal of sediment
and associated vegetation from natural
water courses. (Activities that involve
only the cutting and removing ot
vegetation above the ground, e.g.,
mowing, rotary cutting, and
chaTnsawing. where the activity neither
substantially disturbs the root system
nor involves mechanized pushing.
dragging, or other similar activities that
redeposit excavated soil material, does
not require a Section 404 permit in
accordance with 33 CFR 323.2(d)(2)(ii)).
Only constructed channels within
stretches of natural rivers that have been
previously authorized as part of a flood
Control facility could be authorized for
maintenance under this NWP. •
Maintenance Baseline: Upon receipt
of sufficient evidence, the DE will
determine the maintenance baseline
The maintenance baseline is the existing
flood control project that the DE has
determined can be maintained under
this NWP. subject to any case-specihc
conditions required by the DE. in
determining the maintenance baseline,
the DE will consider the following
factors: The approved facility, the actual
constructed facility, the Corps
constructed project that was transferred,
the maintenance history, if the facility
has been functioning at a reduced
gan:ln determining the need
for mitigation, the DE will consider the
following factors: Any original
mitigation required, the current
;Tnvigronmental setting, and any adverse
effects of the maintenance project that
were not mitigated in the original
construction. The DE will not delay
needed maintenance for completion of
any required mitigation, provided that
the DE and the applicant establish a
schedule for the identification,
approval, development, construction
and completion of such required
mitieation. (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
non-judicial settlement agreement
'resolving a violation of^secUon 404 of
the Clean Water Act (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 ot
section 404 of the CWA, provided that.
a The unauthorized activity affected
no more than 5 acres of nontidal
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
bv this nationwide permit; and
c. The District Engineer issues a
verification letter authorizing the
activity subject to the terms and
conditions of this nationwide permit
and the settlement agreement, including
a specified completion date; or
5) The terms of a final Federal court
decision, consent decree, or settlement
agreement resulting from an
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.Federal Register / Vol. 61. No. 241 / Friday, December 13, 1996 / Notices
65919
enforcement action brought by the
United States under section 404 of the
CWA and/or section 10 of the Rivers
and Harbors Act of 1899.
For both (i) or (ii) above, compliance
is a condition of the NWP itself. Any
authorization under this NWP is
automatically revoked if the permittee
does not comply with the terms of this
NWP or the terms of the court decision,
consent decree, or judicial/non-judicial
settlement agreement or fails to
complete the work by the specified
completion date. This NWP does not
apply to any activities occurring after
the date of the decision, decree, or
agreement that are not for the purpose
of mitigation, restoration, or
environmental benefit. Prior to reaching
any settlement agreement the Corps will
ensure compliance with the provisions
of 33 CFR part 326 and 33 CFR 330.6
(d)(2) and (e). (Sections 10 and 404)
33. Temporary Construction, Access ,
and Dewatering: Temporary structures,
work and discharges, including
cofferdams, necessary for construction
activities or access fills or dewatering of
construction sites; provided "that the
associated primary activity is authorized
by the Corps of Engineers or the U.S.
Coast Guard, or for other construction
activities not subject to the Corps or
U.S. Coast Guard 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. 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 so as to change their use.
Structures left in place after cofferdams /
are removed require a section 10 permit
if located in navigable waters of the
United States. (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 that adverse
environmental effects are 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
United States, 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 purposes of this NWP, the
cumulative total of 10 acres will be
measured over the period that this NWP
is valid. (Section 404)
35. Maintenance Dredging of Existing
Basins: Excavation arid removal of
accumulated sediment for maintenance
of existing marina basins, access
channels to marina basins 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
United States 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.
Dredging to provide access to the boat
ramp may be authorized by another
NWP, regional general permit, or
individual permit pursuant to section 10
if located in navigable waters of the
United States. (Sections 10 and 404)
37. Emergency Watershed Protection
and Rehabilitation: Work done by or
funded by the Natural Resources
Conservation Service qualifying as an
"exigency" situation (requiring
immediate action) under its Emergency
Watershed Protection Program (7 CFR
part 624) and work done or funded by
the Forest Service under its Burned-
Area Emergency Rehabilitation
Handbook (FSH 509.13) provided the
District Engineer is notified in
accordance with the "Notification"
general condition. (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 CERCLA site
by authority of CERCLA as approved or
required by EPA, are not required to
obtain permits under section 404 of the
Clean Water Act or Section 10 of the
Rivers and Harbors Act. (Sections 10
and 404)
39. Reserved.
40. Farm Buildings: Discharges of
dredged or fill material into
jurisdictional wetlands (but not
including prairie potholes, playa lakes,
or vernal pools) that were in agricultural
crop production prior to December 23,
1985, i.e., farmed wetlands, for
foundations and building pads for farm
buildings. The discharge will be limited
to the minimum necessary but will in
no case exceed 1 acre (see the
"Mitigation" Section 404 only
condition). The permittee must notify
the District Engineer in accordance with
the "Notification" general condition for
any farm building within 500 linear feet
of any flowing water. (Section 404)
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65920
Federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 / Notices
C. Nationwide Permit Conditions
General Conditions
The following general conditions
must be followed in order for any
authorization by a NWP to be valid:
1. Navigation: No activity may cause
more than a minimal adverse effect on
navigation.
2. Proper Maintenance: Any structure
or fill authorized shall be properly
maintained, including maintenance to
ensure public safety.
3. Erosion and Siltation Controls:
Appropriate erosion and siltation
controls must be used and maintained
in effective operating condition during
construction, and all exposed soil and
other fills, as well as any work below
the ordinary high water mark or high
tide line, must be permanently
stabilized at the earliest practicable
date.
4. Aquatic Life Movements: No
activity may substantially disrupt the
movement of those species of aquatic
life indigenous to the waterbody,
including those species which normally
migrate through the area, unless the
activity's primary purpose is to
impound water.
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 which may
have been added by the Division
Engineer (see 33 CFR 330.4(e)) and with
any case specific conditions added by
the Corps or by the state or tribe in its
section 401 water quality certification.
7. Wild and Scenic Rivers: No activity
may occur in a component of the
National Wild and Scenic River System;
or in a river officially designated by
Congress as a "study river" for possible
inclusion in the system, while the river
is in an official study status; unless the
appropriate Federal agency, with direct
management responsibility for such
river, has determined in writing that the
proposed activity will not adversely
effect 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 Certification: In
certain states, an individual Section 401
water quality certification must be
obtained or waived (see 33 CFR
330.4(c)). '
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 ujnder 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, or which is likely to
destroy or adversely modify the critical
habitat of such species. Non-federal
permittees shall notify the District
Engineer if any listed species or critical
habitat might be affected or is in the
vicinity of the project, and shall not
begin work on the activity until notified
by the District Engineer that the
requirements of the Endangered Species
Act have been satisfied and that the
activity is authorized. t
(b) Authorization of an activity by a
nationwide permit does not authorize
the "take" of a threatened or endangered
species as defined under the Federal
Endangered Species Act. In the absence
of separate authorization (e.g., an ESA
section 10 Permit, a Biological Opinion
with "incidental take" provisions, etc.)
from the U.S. Fish and Wildlife Service
or the National Marine Fisheries
Service, both lethal and non-lethal
"takes" of protected species are in
violation of the Endangered Species Act.
Information on the location of
threatened and endangered species and
their critical habitat can be obtained
directly from the offices of the U.S. Fish
and Wildlife Service and National:
Marine Fisheries Service or their world
wide web pages at http://www.fws.gov/
-r9endspp/endspp.html and http://
kingfish.spp.mnfs.gov/tmcintyr/
prot_res.html#ES and Recovery,
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 DE has complied
with the provisions of 33 CFR part 325,
appendix C. The prospective permittee
must notify the District Engineer if the
authorized activity may affect any
historic properties listed, determined to
be eligible, or which Ithe 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)).
13. Notification:,
(a) Timing: Where required by the
terms of the NWP, the prospective
permittee must notify the District
Engineer with a Pre-Construcdon
Notification (PCN) as early as possible
and shall not begin the activity:
(1) Until notified 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 by the District or
Division Engineer that an individual
permit is required; or
(3) Unless 30 days (or 45 days for
NWP 26 only) have passed from the
District Engineer's receipt of the
notification and the prospective
permittee has not received 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;
and
(4) ForNWPs 14, 18, 21. 28, 29, 34,
and 38, the PCN must also include a
delineation of affected special aquatic
sites, including wetlands (see paragraph
(¥)' For NWP 21—Surface Coal Mining
Activities, the PCN must include an
OSM or state approved mitigation plan.
(6) 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
permitee's spouse;
(ii) A statement that the single-family
housing activity is for a personal
residence of the permittee;
(iii) A description of the entire parcel,
including its size, and a delineation of
wetlands. For the purpose of this NWP,
parcels of land measuring 0.5 acre or
less will not require a formal on-site
delineation. However, the applicant
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Federal Register / Vol. 61. No. 241 / Friday, December 13. 1996 / Notices
65921
shall provide an indication of where the
wetlands are and the amount of
wetlands that exists on the property. For
parcels greater than 0.5 acre in size, a
formal wetland delineation must be
prepared in accordance with the current
method required by the Corps. (See
paragraph 13tf));
(iv) A written description of all land
(including, if available, legal
descriptions) owned by the prospective
permittee and/or the prospective
permittee's spouse, within a one mile
radius of the parcel, in any form of
ownership (including any land owned
as a partner, corporation, joint tenant,
co-tenant, or as a tenant-by-the-entirety)
and any land on which a purchase and
sale agreement or other contract for sale
or purchase has been executed;
(7) For NWP 31—Maintenance of
Existing Flood Control Projects, the
prospective permittee must either notify
the District Engineer with a Pre-
Construction Notification (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 so
as to identify the approved channel
depths and configurations and existing
facilities. Minor deviations are
authorized, provided that 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.
.(8) 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.
(c) Form of Notification: The standard
individual permit application form
-(Form ENG 4345) may be used as the
notification but must clearly indicate
that it is a PCN and must include all of
the information required in (b) (l)-(7) of
General Condition 13. A letter may also
be used.
(d) District Engineer's Decision: In
reviewing the pre-construction
notification 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, optionally,
submit a proposed mitigation plan with
the pre-construction notification to
expedite the process and the District
Engineer will consider any optional
mitigation the applicant has included in
the proposal in determining whether the
net adverse environmental effects 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 are minimal, the District
Engineer will notify the permittee and
include any conditions the DE deems
necessary.
Any mitigation proposal must be
approved by the District Engineer prior
to commencing work. If the prospective
permittee elects to submit a mitigation
plan, the District Engineer will
expeditiously review the proposed
mitigation plan, but will not commence
a second 30-day (or 45-day for NWP 26)
notification procedure. If the net
adverse effects of the project (with the
mitigation proposal) are determined by
the District Engineer to be minimal, the
District Engineer will provide a timely
written response to the applicant stating
that the project can proceed under the
terms and conditions of the nationwide
permit.
If the District Engineer determines
that the adverse effects of the proposed
work are more than minimal, then he
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 submitting a mitigation
proposal that would reduce the adverse
effects to the minimal level; or (3) that
the project is authorized under the NWP
with specific modifications or
conditions.
(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.
(i) For NWP 14, 21, 26 (between 1 and
3 acres of impact) , 29, 33, 37, and 38.
The District Engineer will, upon receipt
of a notification, provide immediately,
e.g., facsimile transmission, overnight
mail or other expeditious manner, a
copy to the appropriate offices of the
Fish and Wildlife Service, State natural
resource or water quality agency, ;EPA,
State Historic Preservation Officer
(SHPO), and, if appropriate, the
National Marine Fisheries Service. With
the exception of NWP 37, these agencies
will then have 5 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 10
calendar days (16 calendar days for
NWP 26 PCNs) 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. The
District Engineer will indicate in the
administrative record associated with
each notification that the resource
agencies' concerns were considered.
Applicants are encouraged to provide.
the Corps multiple copies of
notifications to expedite agency
notification.
(ii) Optional Agency Coordination.
For NWPs 5, 7, 12, 13, 17, 18, 27, 31,
and 34, where a Regional Administrator
of EPA, a Regional Director of USFWS,
or a Regional Director of NMFS has
formally requested general notification
from the District Engineer for the
activities covered by any of these NWPs,
the Corps will provide the requesting
agency with notification on the
particular NWPs. However, where the
agencies have a record of not generally
submitting substantive comments on
activities covered by any of these NWPs,
the Corps district may discontinue
providing notification to those regional
agency offices. The District Engineer
will coordinate with the resources
agencies to identify which activities
involving a PCN that the agencies will
provide substantive comments to the
Corps. The District Engineer may also
request comments from the agencies on
a case by case basis when the District
Engineer determines that such
comments would assist the Corps in
reaching a decision whether effects are
more than minimal either individually
or cumulatively.
(iii) Optional Agency Coordination,
401 Denial. For NWP 26 only, where the
state has denied its 401 water quality
certification for activities with less than
1 acre of wetland impact, the EPA
regional administrator may request
agency coordination of PCNs between
Va and 1 acre. The request may only
include acreage limitations within the
»/3 to 1 acre range for which the state has
denied water quality certification. In
cases where the EPA has requested
coordination of projects as described
here, the Corps will forward the PCN to
EPA only. The PCN will then be
forwarded to the Fish and Wildlife
Service and the National Marine
Fisheries Service by EPA under
agreements among those agencies. Any
agency receiving the PCN will be bound
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65922
Federal Register / Vol. 61, No. 241 / Friday, December 13. 1996 / Notices
by the EPA timeframes for providing
comments to the Corps.
(0 Wetlands Delineations: Wetland
delineations must be prepared in
accordance with the current method
required by the Corps. For NWP 29 see
paragraph (b)(6)(iii) for parcels less than
0.5 acres 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 30-day period (45 days
for NWP 26) will not start until the
wetland delineation has been completed
and submitted to the Corps, where
appropriate.
(g) Mitigation: Factors that the District
Engineer will consider when
determining the acceptability of
appropriate and practicable mitigation
include, but are not limited to:
(i) 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;
(ii) To the extent appropriate.
permittees should consider mitigation
banking and other forms of mitigation
including contributions to wetland trust
funds, "in lieu fees" to organizations
such as The Nature Conservancy, state
or county natural resource management
agencies, where such fees contribute to
the restoration, creation, replacement,
enhancement, or preservation of
wetlands. Furthermore, examples of
mitigation that may be appropriate and
practicable include but are not limited
to: Reducing the size of the project;
establishing wetland or upland buffer
zones to protect aquatic resource values;
and replacing the loss-of aquatic
resource values by creating, restoring,
and enhancing similar functions and
values. In addition, mitigation must
address wetland impacts, such as
functions and values, and cannot be
simply used to offset die acreage of
wetland losses that would occur in
order to meet the acreage limits of some
of the NWPs (e.g.. for NWP 26, 5 acres
of wetlands cannot be created to change
a 6-acre loss of wetlands to a 1 acre loss;
however, 2 created acres can be used to
reduce the impacts of a 3-acre loss.).
14. Compliance Certification: Every
permittee who has received a
Nationwide permit 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; c. The signature of the
permittee certifying the completion of
the work and mitigation.
15. Multiple Use of Nationwide
Permits: In any case where any NWP
number 12 through 40 is combined with
any other NWP number 12 through 40,
as part of a single and complete project,
the permittee must notify the District
Engineer in accordancfe with paragraphs
a, b, and c on the "Notification" General
Condition number 13. Any NWP
number 1 through 11 may be combined
with any other NWP without
notification to the Corps, unless
notification is otherwise required by the
terms of the NWPs. As provided at 33
CFR 330.6 (c) two or more different
NWPs can be combined to authorize a
single and complete project. However,
the same NWP cannot be used more
than once for a single and complete
project. |
Section 404 Only Conditions
In addition to the General Conditions,
the following conditions apply only to
activities that involve^ the discharge of
dredged or fill material into waters of
the U.S., and must be followed in order
• for authorization by the NWPs to be
valid:
1. Water Supply Intakes: No discharge
of dredged or fill material may occur in
the proximity of a public water supply
intake except where the discharge is for
repair of the public w|ater supply intake
structures or adjacent bank stabilization''.
2. Shellfish Production: No discharge <•
of dredged or fill material may occur in
areas of concentrated shellfish
production, unless the discharge is
directly related to a shellfish harvesting
activity authorized by NWP 4.
3. Suitable Material: No discharge of
dredged or fill material may consist of
unsuitable material (e.g., trash, debris,
car bodies, asphalt, etc.,) and material
discharged must be free from toxic
pollutants in toxic amounts (see section
307 of the Clean Water Act).
4. Mitigation: Discharges of dredged
or fill material into waters of the United
States must be minimized or avoided to
the maximum extent practicable at the
project site (i.e., on-site), unless the
District Engineer approves a
compensation plan that the District
Engineer determines is more beneficial
to the environment than on-site
minimization or avoidance measures.
5. Spawning Areas: Discharges in
spawning areas during spawning
seasons must be avoided to the
maximum extent practicable.
6. Obstruction of High Flows: To the
maximum extent practicable, discharges
must not permanently restrict or impede
the passage of normal or expected high
flows or cause the relocation of the
water (unless the primary purpose of the
fill is to impound waters).
7. Adverse Effects From
Impoundments: If the discharge creates
an impoundment of water, adverse
effects on the aquatic system caused by
the accelerated passage of water and/or
the restriction of its flow shall be
minimized to the maximum extent
practicable.
8. Waterfowl Breeding Areas:
Discharges into breeding areas for
migratory waterfowl must be avoided to
the maximum extent practicable.
9. Removal of Temporary Fills: Any
temporary fills must be removed in their
entirety and the affected areas returned
to their preexisting elevation.
[FR Doc. 96-31645 Filed 12-12-96; 8:45 am]
BILLING CODE 3710-92-P
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