Wednesday
July 1, 1998
Part II
Department of
Defense
Department of the Army, Corps of
Engineers
Proposal To Issue and Modify Nationwide
Permits; Notice
36039
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36040
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
Proposal To Issue and Modify
Nationwide Permits
AGENCY: U.S. Army Corps of Engineers
DoD.
ACTION: Notice of intent and request for
comments.
SUMMARY: To improve protection of the
environment the Army Corps of
- Engineers is proposing changes to its
Nationwide General Permit Program. On
December 13, 1996, the Corps
announced that it would phase out
nationwide permit 26 (NWP 26) which
covered certain activities in isolated
waters and waters above the
"headwaters" point on streams.
Specifically, the Corps is proposing to
issue 6 new nationwide permits (NWPs)
and modify 6 existing NWPs to become
effective when NWP 26 expires. In
addition, the Corps is proposing to add
one NWP condition and modify 6
existing NWP conditions, which will
apply to all existing NWB* as well as the
new and modified NWPs proposed in
this notice. These NWPs are activity-
specific, and most are restricted to
discharges of dredged or fill material
into non-tidal waters of the United
States. In addition to improving
protection of our aquatic resources, a
principal objective is to ensure that
those activities with truly minimal
impacts are authorized in an efficient
manner by a general permit. In this
regard, we believe that these new and
modified NWPs will authorize those
activities with minimal impacts that are
currently authorized by NWP 26. They
will also authorize like activities with
minimal impacts that occur below the
headwaters. These NWPs will allow the
Corps to improve overall environmental
protection by allowing the Corps to
prioritize its work in non-tidal waters
based on the quality of impacted aquatic
systems and the specific impacts of a
proposed project. Although NWP 26
was originally scheduled to expire on
December 13, 1998, the Corps is
proposing to change the expiration date
to March 28, 1999, to ensure that the
Corps has adequate time to effectively
involve the other agencies and the
public in a new regional conditioning
process. When the Corps first
established the December 13, 1998,
expiration date for NWP 26, we did not
contemplate the extensive process
needed to develop sound regional
conditions. This extension is necessary
since a lapse between the expiration of
Federal Register/Vol. 63, No. 126/Wednesday, July 1, 1998/Notices
NWP 26 and the effective date of the
replacement NWPs is unacceptable and
unnecessary.
The Corps is also proposing to modify
its "single family home" NWP (NWP 29)
to change the acreage limit to l/4 acre,
as discussed at the end of the preamble
to this notice. In the interim, the Corps
is suspending NWP 29 for single family
housing activities that result in the loss
of greater than 1A acre of non-tidal
. waters of the United States, including
non-tidal wetlands. The Corps is also
making available a revised
environmental assessment for NWP 29.
The public is invited to provide
comments on these proposals and is
being given the opportunity to request a
public hearing on these activity-specific
NWPs.
DATES: Comments on the proposed new
and modified NWPs and the proposed
modification of NWP 29 must be
received by August 31, 1998. Comments
on the proposal to extend the expiration
date of NWP 26 to March 28, 1999, must
be received by July 31, 1998.
ADDRESSES: HQUSACE, CECW-OR,
Washington, D.C. 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr.
David Olson or Mr. Sam Collinson
CECW-OR, at (202) 761-0199 orhttp:/
/www.usace.army.mil/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION:
Background
The protection and restoration of the
aquatic environment is an integral part
of the Army Corps of Engineers mission.
In its recent Strategic Plan, the Corps
made it clear that this part of its mission
was equal to its more traditional
missions of navigation and flood
damage reduction. Over the past 10
years the Corps has made remarkable
progress in improving environmental
protection through its Regulatory
Program. An example is the substantial
improvements in the Nationwide Permit
program. Through each of the last two
five-year reauthorization cycles, the
Corps has improved the NWP program.
This proposal today takes an additional
important step as the Corps phases out
NWP 26.
While some may not appreciate fully
the import of today's proposal on
improving environmental protection,
one must only discuss this issue with
those who have implemented the NWPs
for the past 20 years to gain an accurate
account of the substantial progress
today's action reflects. This proposal is
a reflection of the Corps unequivocal
commitment to its environmental
mission and to wetlands protection.
The Corps is also committed to
reducing regulatory burdens where
possible. Consistent with the President's
1993 Wetlands Plan, the Corps, along
with other Federal agencies, has made
the Regulatory Program more fair, more
flexible, and more effective. This NWP
proposal also reflects this commitment.
The Corps of Engineers is proposing
new and modified NWPs that will
authorize those activities with minimal
adverse effects on the aquatic
environment that are currently
authorized by NWP 26. This will ensure
the NWP program is based on types of
activities and continues to authorize
work that has no more than minimal
adverse effects on the aquatic
environment. The Corps believes that
the overall protection of the aquatic
environment will be increased by these
new and modified NWPs when
compared to the existing NWP program.
The proposed NWPs will help the Corps
achieve its goal of managing its
workload based on impacts to the
aquatic environment as a whole, not on
impacts to any particular geographic
type of waters, such as isolated waters
or headwater streams. The proposed
new and modified NWPs, along with the
existing NWPs, will allow the Corps to
manage its workload by efficiently
authorizing activities with minimal
adverse effects and focusing its limited
resources on aquatic areas of higher
value. Higher value waters, including
wetlands, will receive additional
protection through increased regional
conditioning of NWPs, case-specific
special conditions, and case-specific
discretionary authority to require a
standard individual permit where
necessary. These measures will ensure
that impacts to these waters authorized
by NWPs are no more than minimal.
The Corps has established permit
thresholds that will allow authorization
of most projects that result in no more
than minimal adverse effects on the
aquatic environment. At the same time,
the Corps has established PCN limits to
ensure that any project that may have
more than minimal adverse effects on
the aquatic environment will be
reviewed. Moreover, since a minimal
adverse effect is still an effect on the
aquatic environment, we will also
require compensatory mitigation, when
appropriate, to ensure that the goal of no
net loss is achieved in the NWP program
and that the cumulative adverse effects
of these activities on the aquatic
environment are minimal. Moreover, the
Corps believes that the proposed NWPs,
along with regional conditioning and
the ability to place special conditions on
NWP authorizations on a case-by-case
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basis, will authorize no more than
minimal individual and cumulative
adverse effects to waters of the United
States. Regional conditions will be
required by each district to further
restrict the use of the NWPs in higher
value aquatic systems.
In the June 17, 1996, issue of the
Federal Register, the Corps proposed to
reissue NWP 26 and requested
comments on several options for
modification of this NWP. In response
to this notice, the Corps received more
than 500 comments concerning NWP
26. Numerous commenters opposed
reissuance of NWP 26. Some
commenters acknowledged the
necessity of NWP 26, but believed that
the NWP must be modified to address
potential cumulative adverse effects.
Many commenters stated that NWP 26
has worked well and that the loss of
NWP 26 would result in increased
regulatory burdens on the public, less
regulatory certainty, unacceptable
workload 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. As a result
of the Corps review, the Corps
determined that NWP 26 should be
replaced with activity-specific NWPs,
but in the interim a substantially
modified NWP 26 was reissued on
December 13, 1996, for a period of two
years. This phased approach was
determined to be necessary to minimize
disruption and confusion for the
regulated public and improve
environmental protection. For a
complete discussion of the issues
concerning the reissuance and
modification of NWP 26, please refer to
the December 13, 1996, issue of the
Federal Register (61 PR 65874-65922).
The coordination process to develop
the new and modified NWPs has taken
longer than the Corps expected.
Moreover, the Corps has established a
very time intensive process to
effectively engage other agencies and
the public in developing regional
conditions.
Due to the additional amount of time
required to develop the proposed new
and modified NWPs and regional
conditions, the Corps is proposing to
change the expiration date of NWP 26
to March 28, 1999. Extending the
expiration date of NWP 26 will ensure
fairness to the regulated public by
continuing to provide an NWP for
activities in headwaters and isolated
waters that have minimal adverse
environmental effects until the
proposed activity-specific NWPs that
will replace NWP 26 become effective.
If NWP 26 were to expire on the
Federal Register/Vol. 63, No. 126/Wednesday, July 1, 1998/Notices
36041
originally scheduled date of December
13, 1998, then most project proponents
would have to apply for authorization
through the individual permit process,
although some activities may be
authorized by other NWPs or regional
general permits. For many activities
with minimal adverse environmental
effects, this would result in unnecessary
burdens on the regulated public without
added environmental benefits.
Section 404 (e) of the Clean Water Act,
which provides the statutory authority
for the issuance of general permits,
states that general permits (including
nationwide permits) can be issued for
no more than five years. Therefore,
NWP 26 can be in effect for a 5 year
period. However, the Corps decided that
NWP 26 should expire when
replacement NWPs become effective.
We established a schedule for
developing replacement NWPs by
December 13, 1998, and announced that
NWP 26 would expire then. The revised
schedule to develop the new and
modified NWPs now indicates that they
will become effective on March 28,
1999. Based on this schedule, we are
proposing to extend the expiration date
of NWP 26 to March 28, 1999. The
public is invited to provide comments
on the proposal to extend the expiration
date of NWP 26 within 30 days of the
date of this notice. After the 30 day
comment period, the Corps will make a
decision on the proposal to extend the
expiration date of NWP 26, and publish
the decision in the Federal Register.
The replacement of NWP 26 with
activity-specific NWPs will help
implement the President's Wetlands
Plan, which was issued by the White
House Office on Environmental Policy
on August 24, 1993. A major goal of this
plan is that Federal wetlands protection
programs be fair, flexible, and effective.
To achieve this goal, the Corps
regulatory program must continue to
provide effective protection of wetlands
and other aquatic resources and avoid
unnecessary impacts to private
property, the regulated public, and the
environment. These proposed NWPs
will more clearly address individual
and cumulative impacts to the aquatic
environment, ensure that those impacts
are minimal, address specific applicant
group needs, and provide more
predictability and consistency to the
regulated public. Throughout the
process of developing the new and
modified NWPs, the Corps recognized
the concerns of natural resource
agencies and environmental groups for
the potential level of adverse effects on .
the aquatic environment resulting from
these NWPs and the regulated public's
need for the certainty and flexibility in
the NWP program.
The activity-specific NWPs proposed
in this notice were developed based on
information from several sources: (1)
comments submitted in response to the
December 13, 1996, Federal Register
notice to issue, reissue, and modify the
NWPs; (2) Corps internal
recommendations; (3) data concerning
the types of activities currently
authorized by NWP 26; (4) discussions
with other Federal agencies; and (5)
discussions with both developmental
and environmental stakeholders.
Since NWP 26 was modified and
reissued, the Corps collected additional
data on the types of activities authorized
by NWP 26 to develop these new NWPs.
From May 1, 1997, through December
31, 1997, 83% of the total activities
authorized by NWP 26 fell into 10
categories. Residential development
comprised approximately 24% of the
activities authorized by NWP 26.
Transportation activities accounted for
19% of the NWP 26 authorizations. Six
percent to 8% of NWP 26 authorizations
were for each the following activities:
agricultural activities, retail
developments, industrial developments,
stormwater facilities, and
impoundments. Institutional facilities,
mining activities, and channel
modification activities each comprised
2% to 5% of the NWP 26 authorizations
during this time period.
In response to the December 13, 1996,
Federal Register notice, several
commenters recommended NWPs for
activities that were specifically
authorized by NWP 26. We also
received comments that recommended
modifications to existing NWPs to
authorize additional activities. We
considered all recommendations
received and, where appropriate,
developed a proposed new NWP or
proposed modification of an existing
NWP to authorize that activity. Some
proposals involved activities that did
not require a permit or were exempt
from Section 404 or Section 10 permit
requirements. Where we believed that it
was not appropriate to develop an NWP
for a particular recommended activity,
our reasons are provided elsewhere in
this notice.
In contrast to NWP 26, none of the
proposed new NWPs and the proposed
modifications of existing NWPs are
restricted solely to activities in
headwaters and isolated wetlands.
However, most are limited to work in
non-tidal waters of the United States,
and do not authorize work in tidal
waters (i.e., waters subject to the ebb
and flow of the tide) or in non-tidal
wetlands contiguous (i.e., connected by
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36042
surface waters) to tidal waters. Some of
the proposed new and modified NWPs
are applicable only in non-Section 10
waters and do not authorize work in
tidal waters or in non-tidal navigable
waters of the United States. The removal
of the headwaters restriction will help
improve consistency and reduce
confusion by eliminating the need to
determine where the median flow of a
waterbody, on an annual basis, is less
than 5 cubic feet per second. In this
proposal, we have clarified that for all
NWPs, the acreage of loss of waters of
the United States, which is the
threshold measurement of the gross
impacts to existing waters for
determining whether a project might
qualify for an NWP, includes the filled
area plus any waters of the United
States that are adversely affected by
flooding, excavation, or drainage as a
result of the project. Furthermore, in
most cases compensatory mitigation
will be required for these losses.
Many of the proposed new and
modified NWPs have preconstruction
notification (PCN) requirements, which
allow the Corps to review proposed
activities on a case-by-case basis to: (1)
place special conditions on specific
projects to ensure that the authorized
impacts will have minimal individual
and cumulative adverse effects on the
aquatic system; or (2) assert
discretionary authority to require a
standard individual permit. These
provisions will ensure that the impacts
authorized by the NWPs will be
minimal. The PCN requirements differ
for each NWP. The PCN threshold is
based on a level of effects on the
existing aquatic ecosystem that requires
review by the District Engineer to
ensure that those effects are minimal.
Each district will identify any areas of
high value waters that require lower
PCN levels to ensure minimal adverse
effects on the aquatic environment.
With the national and district-added
PCN thresholds, any activity below
these limits will have minimal adverse
effects on the aquatic environment.
Many of the proposed NWPs have PCN
requirements for activities that result in
the loss, by filling or excavation, of
greater than 500 linear feet of stream
bed. The term "stream bed" is defined,
for the purpose of the proposed new
NWPs, as a water of the United States
with flowing water (i.e., perennial and
intermittent streams). Ephemeral stream
beds are not subject to this 500 linear
foot PCN requirement. However, Corps
districts may regionally condition
certain NWPs to require notification for
activities that adversely affect
ephemeral streams. District engineers
Federal Register/Vol. 63. No. 126/Wednesday, July 1. 1998/Notices
are responsible for determining if a
particular stream bed is perennial,
intermittent, or ephemeral, based on the
definitions provided below. District
engineers can assert discretionary
authority and require an individual
permit for those activities that they
determine will have more than minimal
individual or cumulative adverse effects
on the aquatic environment. As with all
NWPs, Corps districts will continue to
require that applicants avoid and
minimize impacts on-site.
Section 404(e) of the Clean Water Act
requires that only activities with
minimal adverse environmental effects,
both individually and cumulatively, can
be authorized by general permits.
Activities with more than minimal
adverse impacts are subject to the
individual permit process and the
associated alternatives analysis,
individual public notice procedures,
and other aspects of individual review
that help ensure that potential adverse
effects are fully avoided and minimized
to the maximum extent practicable
before an activity is authorized. On a
national basis, the Corps prescribes
terms and conditions for nationwide
permits to ensure that the NWPs only
authorize activities that have minimal
individual and cumulative adverse
effects on the aquatic environment.
Furthermore, in certain situations to
ensure that activities authorized by
NWPs have minimal adverse effects, the
Corps: (1) requires a specific review
(i.e., a preconstruction notification) so
that activity-specific conditions can be
imposed where necessary; (2) adds
regional conditions on a regional or
geographic basis, to ensure that
activities authorized by the NWPs have
minimal adverse effects; or (3) exercises
discretionary authority to require
individual permits for those activities
that would have more than minimal
adverse effects on the aquatic
environment.
District engineers will normally
require compensatory mitigation to
offset adverse environmental effects to
the aquatic environment that result from
activities authorized by these NWPs,
thus ensuring no more than minimal
cumulative adverse environmental
effects and supporting the goal of no net
loss of aquatic resource functions and
values. Compensatory mitigation can be
accomplished through individual
mitigation projects, through mitigation
banks and through in lieu fee programs.
A focus of all mitigation for NWP
impacts in and around flowing and
other open waters will be to normally
require vegetated buffers, including
upland areas adjacent to open waters.
These buffer areas are vital for
protecting and enhancing water quality
Compensatory mitigation is necessary
to offset losses of functions and values
of aquatic systems caused by permitted
activities. In 1997, the Corps required
28,631 acres of compensatory mitigation
for 15,989 acres of impacts authorized
by standard permits (which includes
individual permits and letters of
permission). During this same time
period, the Corps required 24,819 acres
of compensatory mitigation for 21,409
acres of impacts authorized by general
permits, including nationwide permits
and regional general permits.
Restoration, enhancement, and creation
comprise the bulk of compensatory
mitigation efforts. Less than 5% of this
compensatory mitigation is
accomplished through preservation of
aquatic resources. In some Corps
districts, such as Savannah District,
preservation of aquatic habitats is used
to augment restoration, enhancement,
and creation efforts. In the Savannah'
District, permittees are typically
required to provide restoration,
enhancement, and creation at a 1:1 ratio
of impacts to mitigation, and provide
additional preservation of aquatic
resources, to ensure that there is no net
loss of functions and values as a result
of authorized activities.
Permittees who received an NWP 26
authorization before NWP 26 expires
will have up to 12 months to complete
the authorized activity, provided they
have commenced construction, or are
under contract to commence
construction, prior to the date NWP 26
expires (see 33 CFR 330.6(b)). This
provision applies to all NWP
authorizations 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).
The existing NWPs, with the
exception of NWP 26, will remain in
effect until they expire on February 11,
2002, unless otherwise modified,
reissued, or revoked. Some of the
proposed NWPs can be used with
existing NWPs to authorize projects
with minimal individual or cumulative
adverse effects on the aquatic
environment. Any prohibitions or
limitations regarding stacking of the
proposed new or modified NWPs with
existing NWPs or each other will be
addressed in the proposed NWPs.
The Corps believes that substantial
additional protection of the overall
aquatic environment will result from
modification of two NWP conditions.
We are proposing to modify General
Condition 9, previously entitled "Water
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Federal Register/Vol. 63, No. 126/Wednesday, July 1, 1998/Notices
36043
Quality Certification", to require that
post-project conditions do not result in
more than minimal degradation of
' downstream water quality. For certain
NWPs, this General Condition will
require the implementation of a water
quality management plan to protect and
enhance aquatic resources. The water
quality management plan may consist of
storm water management techniques
and/or the establishment of vegetated
buffer zones. In many cases, the Corps
will be able to rely on State or local
water quality plans. We are also
proposing to modify former Section 404
Only Condition 6 by changing its title
from "Obstruction of High Flows" to
"Management of Water Flows" and
modifying it to require that neither
upstream nor downstream areas are
more than minimally flooded or
dewatered after the project is
completed. This requirement will help
ensure that post-construction effects on
the aquatic environment and populated
areas are further minimized. We are also
modifying other conditions and
consolidating the general and Section
404 only NWP conditions to a single
list, as discussed below. _^.
Ensuring the protection of threatened
and endangered species is a high
priority of the Department of the Army
Regulatory Program, including the
general permit program. Because of
programmatic safeguards and individual
project review, the Corps continues to
believe the NWP program results in no
effect on endangered species.
Notwithstanding this position, we have
requested formal programmatic
consultation with the U.S. Fish and
Wildlife Service (FWS) and National
Marine Fisheries Service (NMFS) to
ensure that the NWP program, including
the proposed new and modified NWPs,
has a formal process to develop any
necessary additional procedures at the
district level. This will ensure that the
program will not jeopardize the
continued existence of any Federally
listed endangered species. The formal
consultation will be initiated as soon as
possible and completed by December
13, 1998.
In addition to the standard NWP
condition for endangered species, the
Corps has required regional conditions
and activity-specific conditions to
address specific endangered species. To
further ensure compliance with the
requirements of ESA, Corps districts
have developed, and will continue to
develop, local operating procedures
(referred to as Standard Local Operating
Procedures for Endangered Species, or
SLOPES) to ensure that districts will
continue to reach a project specific
"may affect" determination when
necessary, and thus consult with FWS
and NMFS, where appropriate.
Furthermore, programmatic formal
consultation has been initiated on NWP
29. We expect this consultation will be
completed this summer. Corps districts
will develop additional regional
conditions and SLOPES this summer for
the new and modified NWPs, to ensure
that we fully comply with the
Endangered Species Act.
Overall, the Corps believes that the
proposed changes to the NWP program
will substantially enhance protection of
the aquatic environment while allowing
activities with minimal individual and
cumulative adverse effects on the
aquatic environment to proceed with a
minimum of delay. For example, where
we have proposed higher acreage limits
for mitigated losses, such as NWP B for
master planned development activities,
the applicant must fully protect all
remaining waters in the project area and
offset all losses of aquatic functions and
values within the community. In this
way, the overall aquatic environment
will be maintained, and in many cases
enhanced, by planning for treatment of
stormwater, establishing and/or
maintaining buffers around all aquatic
areas, and placing deed restrictions on
all unimpacted aquatic environments
and associated buffer areas. In addition,
some of these NWPs will authorize all
secondary activities associated with the
primary activity, such as infrastructure
and recreational amenities, with the
impacts for a residential development.
This will discourage piecemealing by
encouraging applicants to present the
total project.
General Issues
In addition to seeking comments on
the proposed new and modified NWPs,
the Corps is soliciting comments on the
following general issues related to the
proposed NWPs: the scope of the new
NWPs, acreage limitations and PCN
thresholds on the proposed NWPs,
assessing cumulative impacts on a
watershed basis, and regional
conditioning of the NWPs. The Corps is
also seeking comments on other issues
related to the NWPs, such as
maintenance of landfill surfaces,
maintenance and filling of ditches
adjacent to roads and railways,
maintenance of water treatment
facilities, the use of mitigation banks in
the NWP program, and expansion of
NWP 31, which are discussed below in
the section entitled "Other Suggested
NWPs".
NEPA Compliance
The Corps recognizes that there has
been, and continues to be, substantial
interest among the public regarding the
potential environmental effects
associated with the implementation of
the Nationwide Permit program. With
the last reissuance of the NWPs in
December 1996, we reemphasized our
commitment to improve data collection
and monitoring efforts associated with
the NWP program, and NWP 26 in
particular. In many instances, these
efforts have already provided critical
information on the use of the NWPs,
overall acreage impacts, affected
resource types, the geographic location
of the activities, and the type of
mitigation provided. This information is
critical in our efforts to make well-
informed permitting and policy
decisions regarding the continued role
of the NWP program and to ensure that
the program continues to authorize only
those activities with minimal individual
and cumulative effects.
We also recognize that this current
process to develop replacement permits
for NWP 26 provides an important
opportunity to further expand the
current tools available for evaluating
and monitoring the environmental
effects associated with this program. We
are committed to ensuring and
demonstrating that the NWP program as
a whole, including the new NWPs
proposed today, authorizes only those
activities with minimal individual and
cumulative environmental effects.
Consistent with this commitment, the
Corps will prepare a programmatic
environmental impact statement (PEIS)
for the entire NWP program. While a
PEIS is not required for the reasons
noted below, tfie PEIS will provide the
Corps with a comprehensive mechanism
to review the effects of the NWP
program on the environment, with full
participation of other Federal agencies.
States, Tribes, and the public. The Corps
will initiate the PEIS by mid-1999 and
complete it by December 2000. The
Corps plans to complete the PEIS prior
to the next scheduled reissuance of the
NWPs in December 2001.
The National Environmental Policy
Act (NEPA) requires Federal agencies to
prepare an Environmental Impact
Statement (EIS) for major Federal
actions that have a significant impact on
the quality of the human environment.
Notwithstanding our commitment to
complete a PEIS, we have determined
that the NWP program does not
constitute a major Federal action
significantly affecting the human
environment and therefore the
preparation of an EIS is not required by
NEPA. The basis for this determination
is that the NWP program authorizes
only those activities that have minimal
adverse environmental effects on the
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Federal Register/Vol. 63, No. 126/Wednesday, July 1, 1998/Notices
aquatic environment, both individually
and cumulatively, which is a much
lower threshold than the threshold for
requiring an EIS. We have prepared a
Finding of No Significant Impact
(FONSI) for the NWP program. Copies of
the FONSI are available at the office of
the Chief of Engineers, at each District
office, and on the Corps home page at
http://www.usace.army.mil/inet/
functions/cw/cecwo/reg/.
Similar to our determination for the
overall NWP program, we have made a
preliminary determination that the
proposed new and modified NWPs do
not constitute a major Federal action
significantly affecting the quality of the
human environment, because the NWPs
authorize only those activities that have
minimal adverse effects on the aquatic
environment, both individually and
cumulatively. In compliance with
NEPA, preliminary environmental
documentation has been prepared for
each proposed NWP and each proposed
modification of an existing NWP. This
documentation includes a preliminary
environmental assessment (EA), a
preliminary FONSI, and, where
relevant, a preliminary Section 404(b)(l)
Guidelines compliance review for each
proposed new and modified NWP.
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 ://www. usace. army.mil/inet/
functions/cw/cecwo/reg/. Based on
these documents the Corps has
provisionally determined that the
proposed new and modified NWPs
comply with the requirements for
issuance under general permit authority.
Scope of the New NWPs
The applicable waters of the United
States for the proposed and existing
NWPs can be.categorized in five ways:
(1) all waters of the United States; (2)
non-tidal waters; (3) non-tidal waters,
excluding non-tidal wetlands
contiguous to tidal waters; (4) non-
Section 10 waters; and (5) non-Section
10 waters, excluding wetlands
contiguous to Section 10 waters. The
term "all waters of the United States"
includes both Section 10 and Section
404 waters. "Non-tidal waters" are
waters of the United States that are not
subject to the ebb and flow of the tide
(i.e., are located landward of the normal
spring high tides), and may include
non-tidal wetlands contiguous to tidal
waters. "Non-tidal waters, excluding
non-tidal wetlands contiguous to tidal
waters" are limited to non-tidal waters
and wetlands that are not connected by
surface waters to tidal waters or are not
part of a linear aquatic system with a
defined channel to the otherwise
contiguous wetland (see the proposed
definitions of "contiguous wetland" and
"noncontiguous wetland", below).
Where non-tidal waters and wetlands
are contiguous to tidal waters, there are
no uplands or other non-jurisdictional
areas separating those non-tidal waters
from the tidal waters. "Non-Section 10
waters" are limited to waters of the
United States, including wetlands,
located above the ordinary high water
mark of Section 10 waters. Wetlands
located below the ordinary high water
mark in Section 10 waters are Section
10 waters. "Non-Section 10 waters,
excluding wetlands contiguous to
Section 10 waters" are limited to waters
and wetlands that are not connected by
surface waters to Section 10 waters;
there may be uplands or other non-
jurisdictional areas separating those
waters. Wetlands contiguous to Section
10 waters may be either tidal or non-
tidal.
Many of the proposed new NWPs
(e.g., NWPs A, B, D, and E) are
applicable only to discharges of dredged
or fill material into non-tidal waters of
the United States, excluding wetlands
that are contiguous to tidal waters. A
definition of "contiguous wetland" has
been proposed in the definition section
of this notice. Proposed NWPs C and F
are applicable only to non-Section 10
waters of the United States. For the
proposed modification to NWP 12, the
construction of substations, and access
roads is authorized only in non-Section
10 waters, but the construction of utility
lines and foundations for overhead
utility lines may be authorized in
Section 10 waters. The proposed
modifications to NWP 27 allow wetland
and riparian restoration in non-tidal
waters of the United States, while
limiting stream enhancement projects to
non-Section 10 waters. The proposed
modification to NWP 7 may authorize
work in navigable waters of the United
States (i.e., Section 10 waters). Crushed
and broken stone and hard rock/mineral
mining activities authorized by
proposed NWP E can occur only in non-
tidal waters of the United States that are
not contiguous to tidal waters. The
activities authorized by the proposed
modification to NWP 40 are limited to
non-tidal waters, including activities in
non-tidal wetlands contiguous to tidal
waters.
Acreage Limitations and PCN
Thresholds
The Corps is seeking comments on the
acreage limitations and PCN thresholds
for the proposed new NWPs and the
proposed modifications to existing
NWPs. The Corps will review and
consider acreage limits that are smaller
or greater than those proposed. If the
Corps believes that an acreage limit
substantially higher than proposed may
be appropriate, then a new proposal
with an opportunity to comment would
be published in the Federal Register.
For the new NWPs; the acreage
limitations range from 1 acre for NWP
D to 10 acres for NWP B. NWP F is
limited to the minimum necessary to
reconfigure the drainage ditch. The
upper limits for the proposed
modifications to existing NWPs are
highly variable. NWP 27 will continue
to have no acreage limit, since it
authorizes projects that restore or
' enhance the aquatic environment. The
acreage limits for the other proposed
modifications range from J/3 acre for •
private roads under NWP 14 to 3 acres
for NWP 40. The proposed modification
to NWP 7 will not have an acreage
limitation, but will restrict the work to
the minimum necessary to restore the
facility to its original configuration.
The PCN threshold for many of the
proposed new NWPs and modifications
to existing NWPs will be the loss of
greater than Va acre of waters of the
United States. In addition, there are
PCN requirements for impacts to open
waters and streams for some of these
NWPs. NWP A requires a PCN for any
impacts to open waters below the
ordinary high water mark. NWP B
requires a PCN for all activities. NWPs
C and D and the proposed modification
of NWP 40 require a PCN if greater than
500 linear feet of stream bed is filled or
excavated. NWP E and the proposed
modification to NWP 7 will require
notification for all activities. NWP F
will require notification for any ditch
reconfiguration that involves sidecasting
excavated material into waters of the
United States. The proposed
modifications to NWP 3 will require
notification for the removal of
accumulated sediments and debris in
the vicinity of existing structures and
for restoration of upland areas damaged
by storms, floods, or other discrete
events that affect greater than Vs acre of
waters of the United States. The repair,
rehabilitation, or replacement of
currently serviceable structures or fills
will not require notification under the
proposed modification of NWP 3.
Mitigation
A requirement of the NWPs is that
project proponents must avoid and
minimize impacts to waters of the
United States at the project site to the
maximum extent practicable. (See
General Condition 20.) For those «
unavoidable impacts to waters of the
United States, including wetlands.
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36045
compensatory mitigation may be
required, either through regional
conditioning or on a case-by-case basis.
Compensatory mitigation will normally
be required by district engineers for
those projects which require notification
(i.e., impacts to more than Vs acre of
waters of the United States for most of
the proposed NWPs). Compensatory
mitigation will be required by Corps
districts to offset the adverse
environmental effects to the aquatic
ecosystem of the proposed work to a
level that ensures no more than minimal
cumulative adverse environmental
effects.
There are several ways that a
permittee can provide compensatory
mitigation for a project that is
authorized by NWPs. The permittee can
restore, create, enhance, or preserve
wetlands or other aquatic habitats to
replace the functions and values of the
wetlands and other waters of the United
States that are lost as a result of the
project. In most situations, establishing
or maintaining a vegetated buffer,
including uplands adjacent to open
waters, will be an important part of a
mitigation plan. Anothermethod of
compensatory mitigation is mitigation
banks. A mitigation bank is a site where
wetlands or other aquatic resources are
restored, created, enhanced, or
preserved to provide compensatory
mitigation in advance of the authorized
impacts. The entity that developed the
mitigation bank provides these aquatic
resources in return for payment from the
permittee. Federal guidance for the
establishment, use, and operation of
mitigation banks was published in the
Federal Register on November 28, 1995
(60 FR 58605-58614). A third method of
compensatory mitigation is in lieu fee
programs, which may be used to offset
losses of waters of the United States. In
lieu fee programs are typically operated
by States, counties, and private and
public organizations who protect,
restore, and enhance open space,
including waters of the United States.
Permittees may use in lieu fee programs
that protect, enhance, or restore
wetlands, riparian corridors, and open
water areas, including upland buffers
which protect water quality. The
permittee pays a fee to the operator of
the in lieu fee program in exchange for
the protection, enhancement, and
restoration of these areas. In lieu fee
programs should be watershed based
and focused in areas where restoring,
enhancing, and preserving the aquatic
system and associated uplands will
provide the greatest overall protection of
that particular watershed. Regardless of
the method used to provide
compensatory mitigation, district
engineers have the discretionary
authority to determine the type and
quantity of compensatory mitigation
that is appropriate to replace lost
aquatic functions and values.
Cumulative Impacts
Cumulative adverse effects on the
aquatic environment caused by
activities authorized by NWPs, regional
general permits, and individual permits
must be monitored by the districts on a
watershed basis. Assessment of
cumulative impacts on a watershed
basis is the only technically sound
approach and must focus on essential
aquatic functions and values. No
determination of minimal individual
and cumulative adverse effects can be
made on a national basis, because the
functions and values of aquatic
resources vary considerably across the
nation and cannot be monitored or
assessed by Corps headquarters.
Individual districts are better suited to
assess cumulative impacts because they
have a better understanding of the local
conditions and processes used to
evaluate whether cumulative impacts to
the aquatic environment in a particular
watershed will be more than minimal as
a result of work authorized by the
Corps. In some watersheds, a large
acreage of loss of waters offset with
appropriate compensatory mitigation
could occur and result in no more than
minimal cumulative adverse effects on
that watershed. Similar wetland losses
in other watersheds could exceed the
minimal impact threshold, if the
wetlands in that watershed were of high
value, or if historic wetland losses in
that watershed were extensive, making
the remaining wetlands especially
valuable due to the scarcity of that
habitat type. Therefore, each district
generally monitors the losses of waters
of the United States in each watershed,
as well as the gains through restoration,
enhancement, creation, and
preservation of aquatic resources, to
determine whether the effects of these
actions result in more than minimal
cumulative adverse effects on the
aquatic environment. Regional
conditions can be used by districts to
allow the continued use of these NWPs
while making certain that the individual
and cumulative adverse environmental
effects to the aquatic ecosystem are not
more than minimal. The Corps has
established a process on a nationwide
basis (regional conditioning), a
requirement that each district
compensate for impacts through
mitigation, as well as nationwide PCN
limits, all of which will ensure no more
than minimal adverse effects will occur
on a cumulative basis. The Corps will
continue to work towards the goal of no
net loss of functions and values of the
Nation's aquatic resources.
Division engineers can revoke any of
the proposed NWPs in aquatic
environments of particularly high value
or in specific geographic areas (e.g.,
watersheds), if they believe that use of
particular NWPs in these areas will
result in more than minimal individual
and cumulative adverse environmental
effects to the aquatic ecosystem. The
proposed NWPs may be revoked where
districts have implemented
programmatic general permits (PGPs) for
similar activities, as long as the PGP
provides at least the level of protection
of the aquatic environment that the
Corps does through its NWP program.
Data Collection by Corps Districts
Corps districts use databases to collect
information concerning permit
applications, issued standard permits,
issued general permit authorizations,
denied permit applications, and
enforcement activities. Most districts
utilize the Regulatory Analysis and
Management System (RAMS and
RAMSII). The Corps has been
continuously improving its data
collection efforts, especially for the
NWP Program. Districts have been
collecting the following information for
all permit actions, including NWP
authorizations:
• The name of the permit applicant.
• The description and location of the
work.
• The amount of requested impacts to
non-tidal and/or tidal wetlands, in
acres.
• The amount of authorized impacts
to non-tidal and/or tidal wetlands, in
acres.
• The amount of compensatory
mitigation provided by the permittee, in
acres of non-tidal and/or tidal wetlands
restored, enhanced, created, or
preserved.
• The amount of non-tidal and/or
tidal wetlands impacted as a result of an
unauthorized activity, in acres.
• The amount of non-tidal and/or
tidal wetlands restored as a result of an
enforcement action, in acres.
Since May 1, 1997, districts have been
required to collect additional
information on the environmental
impacts of the NWPs. Wetland impacts
are entered in the database as acres of
wetlands permitted to be filled,
excavated, drained, and flooded. Stream
impacts are quantified in linear feet of
stream bed that are permitted to be
impacted by an activity that involves
filling or excavation within a stream.
The Corps is also collecting data on the
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Federal Register/Vol. 63, No. 126/Wednesday, July 1, 1998/Notices
types of waters impacted (i.e., estuarine,
lacustrine, marine, palustrine, or
riverine), based on the Cowardin
classification system. As resources
permit, Corps districts may use the
remainder of the Cowardin
classification system to better define the
types of aquatic habitats being
impacted. The United States Geological
Survey (U.S.G.S.) hydrological unit code
in which the affected waterbody is
located is also entered into the database.
The U.S.G.S. hydrological unit code
system identifies over 2,000 watersheds
nationwide. Wetland mitigation is
entered in the database as acres of
wedands that are required to be
restored, created, enhanced, and
preserved. Mitigation for impacts
authorized by NWPs is also tracked by
the mediod of mitigation (i.e., mitigation
provided by permittee, mitigation bank,
or some other method, such as an in lieu
fee program) and acreage of
compensatory mitigation.
For the NWP program, die Corps is
monitoring: (1) the number of verified
authorizations; (2) the number of
requests where discretionary authority
was exercised because theractivity
would have resulted in more than
minimal adverse effects; (3) the number
of NWP authorization requests that were
denied and an individual permit review
was required; (4) the number of NWP
authorization requests that were
withdrawn because no permit was
required; (5) the number of NWP ,
authorization requests that were
withdrawn based on die applicant's
decision; and (6) the number of NWP
authorization requests diat were
withdrawn because the Corps received
more than one request for the same
project (i.e., an accounting error
occurred).
In addition, the Corps is collecting
data on die impact of the NWPs on
Federally-listed endangered and
threatened species and their critical
habitat. The Corps is monitoring
whether or not a particular activity is
proposed in critical habitat for a
Federally-listed endangered or
direatened species. The Corps is also
collecting data on which endangered or
threatened species are involved in
verified NWP activities, as well as die
ESA determination for that activity (i.e.,
no effect, not likely to adversely affect,
no jeopardy/no adverse modification, or
jeopardy/adverse modification).
As part of its effort to develop NWPs
to replace NWP 26, the Corps has been
collecting more data on the types of
activities authorized by NWP 26. For
this data collection effort, these types of
activities are classified as follows:
institutional, agricultural, silvicultural,
mining aggregates, mining other, retail
individual, retail multiple, residential
multiple, industrial, transportation,
storm water management,
impoundment, treatment facility, or
"other". The Corps is also classifying
diese activities into the following
categories: commercial, non-
commercial, and governmental. For
every NWP action, die location of die
impact area widiin die watershed is
recorded as either: (1) above headwaters
or in isolated waters, or (2) below
headwaters and not in isolated waters.
When NWP 26 expires, die Corps will
no longer collect die data mentioned in
this paragraph.
Data collection requires a balance
between die amount of work required to
evaluate permit applications and die
usefulness of die data to monitor die
impacts of die audiorized activities on
die aquatic environment. The amount
and types of collected information
should be limited to die data diat is
needed for cumulative impact
assessment while allowing districts die
time and personnel resources to
effectively evaluate permit applications
and conduct enforcement activities.
Corps districts will continue to monitor
regulated activities on a watershed basis
to ensure diat die activities audiorized
by NWPs do not result in more than
minimal cumulative adverse effects on
die aquatic environment in a particular
watershed. In addition, data collection
helps the Corps monitor the effects of
authorized activities on endangered and
direatened species. In die future, die
Corps will evaluate our current overall
data collection efforts on standard and
general permits, including NWPs, to
better and more consistently assess die
effects of these actions on the aquatic
environment.
Process for Issuing the New and
Modified NWPs
The process for issuing the proposed
new and modified NWPs is illustrated
in Figure 1. The regional conditioning
and 401/CZM certification processes are
also illustrated in Figure 1. The
proposal in this Federal Register is die
beginning of diis process. During die 60-
day comment period, diere will be a
public hearing in Washington, DC to
solicit comments on die proposed new
and modified NWPs. We will initially
review the comments received in
response to diis Federal Register notice
with a task force staffed by Corps
regulatory field personnel. Upon
completion of our initial review of the
comments, we will complete an initial
draft of the final NWPs and begin
agency coordination; diis process will
last approximately 2 mondis. After
agency coordination is finished, we will
complete die final version of die NWPs
for publication in die Federal Register
by December 28,1998. The State 4017
CZM agencies will have 60 days to
complete their certification decisions.
The Corps will then finalize its regional
conditions and then certify diat die
NWPs, with any regional conditions or
geographic revocations, will only
audiorize activities with minimal
adverse environmental effects, botii
individually and cumulatively. The
NWPs will become effective 90 days
later, as NWP 26 expires. The Corps
regional conditioning and 401/CZM
certification processes are discussed
elsewhere in diis notice.
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Federal Register/Vol. 63, No. 126/Wednesday, July 1, 1998/Notices
Regional Conditioning of Nationwide
Permits
As previously discussed in this
notice, the Corps is committed to
developing a package of replacement
permits with demonstrably less
environmental impact than the permit
they replace. An important element in
achieving this goal is the successful
implementation of a significantly
improved regionalization process. The
coordinated involvement of States,
Tribes, the public, and others, at the
District level, will assist the Corps in
identifying appropriate conditions and
in developing permits that ensure
effective protection at the local level of
wetlands and other water resources.
Moreover, effective regional
conditioning of the NWPs by the Corps
Districts will ensure compliance with
the statutory requirement that the NWPs
result in no more than minimal adverse
effects on the aquatic environment and
will support the Administration's goal
of no net loss of aquatic functions and
values on a watershed and
programmatic basis.
Although a regionalization process
has been required during"p"ast
reissuances of the NWPs, we recognize
that those efforts were not always the
most effective in ensuring the
development of appropriate conditions
in each Corps District. We are confident,
however, that the process proposed in
today's notice is fundamentally different
from those past approaches and will
yield an improved environmental result
that makes sense for local watersheds
throughout the country. In general
terms, the new approach provides the
public, as well as other Federal and
State/Tribal agencies, with two
opportunities to comment on proposed
Corps regional conditions before they
are finalized, involves a more active and
coordinated role for the Federal
resource agencies throughout the
process, and results in final decision
documents that include certifications by
each Division Engineer that each NWP,
as conditioned, will authorize only
minimal adverse environmental effects.
The regionalization process is outlined
in greater detail below.
There are two types of regional
conditions: conditions added as part of
the Section 401 water quality
certification/Coastal Zone Management
Act (401/CZM) process and conditions
added by the Corps Divisions after
consultation with Corps Districts, other
agencies, and the public. The 401/CZM
regional conditions for the proposed
NWPs automatically become regional
conditions on those NWPs. However, if
the division engineer determines that
those conditions do not meet the
provisions of 33 CFR 325.4, the 401
certification and/or CZM concurrence
will be treated as a denial without
prejudice. The 401/CZM regional
conditions must be announced by the
final Corps public notice concerning die
final NWPs. Corps regional conditions
should generally not, but may, duplicate
401/CZM regional conditions. Corps
regional conditions are added to NWPs
by division engineers after a public
notice comment period. Corps regional
conditions cannot increase die terms or
limits of the NWPs, delete or modify
NWP conditions, change or be
inconsistent with Corps regulations, be
unenforceable, require an individual
401 water quality certification or CZM
concurrence, or require another agency
decision, review, or approval.
When each Corps district issues its
initial public notice for the proposed
NWPs, approximately concurrent with
this Federal Register notice, the public
notice will include: (1) Corps regional
conditions for NWP 26, if any, that are
applicable to any of the proposed
NWPs; (2) the existing Corps regional
conditions, if any, for the NWPs that are
proposed to be modified (i.e., NWPs 3,
7, 12, 14, 27, and 40); and (3) any
additional Corps regional conditions
that the district is proposing at that
time. This initial public notice will also
request comments or suggestions for
additional Corps regional conditions for
the NWPs. The initial public notice may
also include, for informational purposes
only, any State/tribal 401/CZM regional
conditions for NWP 26 and for the
NWPs that are proposed to be modified.
The public does not have the
opportunity to comment on the State/
tribal 401/CZM regional conditions
through the Corps. There is a separate
State/tribal process that involves the
public regarding State/tribal 401/CZM
certifications. Each district will
announce the final State/tribal 401/CZM
regional conditions in the final NWP
public notice. Each district may also
propose Corps regional conditions for
any existing NWP in this initial public
notice.
The initial public notice will request
that the general public and other
agencies submit comments on the NWPs
and any regional conditions proposed
by the Corps, to suggest additional
Corps regional conditions, or to suggest
specific watersheds or waterbodies
where Corps regional conditions should
be implemented, or geographic areas or
specific watersheds or waterbodies
where certain NWPs should be
suspended or revoked. After the close of
the comment period for the initial
public notice, each district will
coordinate with the Federal and State
resource agencies to develop additional
Corps regional conditions. In addition,
each district will hold a public meeting
to discuss regional conditioning of the
NWPs with the public and
representatives of Federal, State, tribal,
and local agencies. Based on the initial
input, the Corps will develop proposed
regional conditions and each district
will issue a second public notice to
solicit comments on those proposed
Corps regional conditions. After the
close of the comment period for the
second public notice, each district will
coordinate with the Federal and State
resource agencies to develop final Corps
regional conditions. Prior to the
publication of the final NWPs in the
Federal Register, the District Engineer
will meet with the Regional
Administrator of EPA and the Regional
Directors of FWS and NMFS to discuss
the proposed regional conditions and
resolve any disputes concerning Corps
regional conditions.
Prior to the date die NWPs become
effective, each Division Engineer will
prepare supplemental decision
documents addressing the regional
conditions for each NWP. Each decision
document will include a statement, by
the Division Engineer, certifying that die
Corps regional conditions imposed on
the NWPs will ensure that those NWPs
will authorize only activities with
minimal adverse effects. After die
Division Engineer establishes the Corps
regional conditions, each district will
issue final public notices announcing
the final 401/CZM regional conditions
and Corps regional conditions. Each
district may propose additional Corps
regional conditions in future public
notices.
Corps regional conditions will be
tailored to the issues related to the
aquatic environment within each
district, and will be used to ensure that
the effects of the NWP program on die
aquatic environment are minimal, both
individually and cumulatively. Corps
regional conditions can cover a large
geographic area (e.g., a State or county),
a particular waterbody or watershed, or
a specific type of water of the United
States (e.g., trout streams). Examples of
Corps regional conditions tiiat may be
used by districts to restrict the use of the
NWPs include:
• Restricting die types of waters of
die United States where the NWPs may
be used (e.g., fens, hemi-marshes,
prairie podioles, bottomland
hardwoods, etc.) or prohibiting the use
of some or all of die NWPs in those
types of waters or in specific
watersheds;
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36049
• Restricting or prohibiting the use of
NWPs in areas covered by a Special
Area Management Plan, or an Advanced
Identification study with associated
regional general permits;
• Adding "Notification"
requirements to NWPs to require PCNs
for all work in certain watersheds or
certain types of waters of the United
States, or lowering the PCN threshold;
• Reducing the acreage tiiresholds in
certain types of waters of the United
States;
• Revoking certain NWPs on a
geographic or watershed basis;
• Restricting activities authorized by
NWPs to certain times of the year in
certain waters of the United States, to
minimize the adverse effects of those
activities on areas used by fish or
shellfish for spawning, nesting wildlife,
or other ecologically cyclical events.
The Corps regional conditions
implemented by each district do not
supersede the general conditions of the
nationwide permit program. The general
conditions address the Endangered
Species Act, the National Historic
Preservation Act of 1966, the Wild and
Scenic Rivers Act, Sectiao.401 water
quality certification, Coastal Zone
Management, navigation, etc. Given the
extent of die coordination already
mandated by Federal law, the addition
of regional conditions at die State,
Tribal, watershed, or geographic level
will help ensure tiiat important public
interest factors are considered when
evaluating projects for NWP
audiorization.
Comments on regional issues and
regional conditions must be sent to die
appropriate District Engineer, as
indicated below:
Alabama
Mobile District Engineer, ATTN:
CESAM-OP-S, 109 St. Joseph
Street, Mobile, AL 36602-3630
Alaska
Alaska District Engineer, ATTN:
CEPOA-CO-R, P.O. Box 898,
Anchorage, AK 99506-0898
Arizona
Los Angeles District Engineer, ATTN:
CESPL-CO-R, P.O. Box 2711, Los
Angeles, CA 90053-2325
Arkansas
Litde Rock District Engineer, ATTN:
CESWL-CO-P, P.O. Box 867, Little
Rock, AR 72203-0867
California
Sacramento District Engineer, ATTN:
CESPK-CO-0,1325 J Street,
Sacramento, CA 95814-4794
Colorado
Albuquerque District Engineer,
ATTN: CESPA-CO-R, 4101
Jefferson Plaza NE, Rm 313,
Albuquerque, NM 87109
Connecticut
New England District Engineer,
ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
Delaware
Philadelphia District Engineer, ATTN:
CENAP-OP-R, Wannamaker
Building, 100 Penn Square East
Philadelphia, PA 19107-3390
Florida
Jacksonville District Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970,
Jacksonville, FL 32202-4412
Georgia
Savannah District Engineer, ATTN:
CESAS-OP-F, P.O. Box 889,
Savannah, GA31402-0889
Hawaii
Honolulu District Engineer, ATTN:
CEPOH-ET-PO, Building 230, Fort
Shatter, Honolulu, HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN:
CENWW-OP-RF, 210 N. Third
Street, City-County Airport, Walla
Walla, WA 99362-1876
Illinois
Rock Island District Engineer, ATTN:
CEMVR-RD, P.O. Box 004, Rock
Island, IL 61204-2004
Indiana
Louisville District Engineer, ATTN:
CELRL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
Iowa
Rock Island District Engineer, ATTN:
CEMVR-RD, P.O. Box 2004, Rock
Island, IL 61204-2004
Kansas
Kansas City District Engineer, ATTN:
CENWK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas
City, MO 64106-2896
Kentucky
Louisville District Engineer, ATTN:
CELRL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
Louisiana
New Orleans District Engineer, ATTN:
CEMVN-OD-S, P.O. Box 60267,
New Orleans, LA 70160-0267
Maine
New England District Engineer,
ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
Maryland
Baltimore District Engineer, ATTN:
CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Massachusetts
New England District Engineer,
ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
Michigan
Detroit District Engineer, ATTN:
CELRE-CO-L, P.O. Box 1027,
Detroit, MI 48231-1027
Minnesota
St. Paul District Engineer, ATTN:
CEMVP-CO-R, 190 Fifth Street
East, St. Paul, MN 55101-1638
Mississippi
Vicksburg District Engineer, ATTN:
CEMVK-CO-0, 201 N. Frontage
Road, Vicksburg, MS 39180-5191
Missouri
Kansas City District Engineer, ATTN:
CENWK-OD-P, 700 Federal
Building, 601 E. 12di Street, Kansas
City, MO 64106-2896
Montana
Omaha District Engineer, ATTN:
CENWO-OP-R, 215 N. 17th Street,
Omaha, NE 68102-4978
Nebraska
Omaha District Engineer, ATTN:
CENWO-OP-R, 215 N. 17th Street,
Omaha, NE 68102-4978
Nevada
Sacramento District Engineer, ATTN:
CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-2922
New Hampshire
New England District Engineer,
ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
New Jersey
Philadelphia District Engineer, ATTN:
CENAP-OP-R, Wannamaker
Building, 100 Penn Square East,
Philadelphia, PA 19107-3390
New Mexico
. Albuquerque District Engineer,
ATTN: CESWA-CO-R, 4101
Jefferson Plaza NE, Rm 313,
Albuquerque, NM 87109
New York
New York District Engineer, ATTN:
CENAN-OP-R, 26 Federal Plaza,
New York, NY 10278-9998
Nordi Carolina
Wilmington District Engineer, ATTN:
CESAW-CO-R, P.O. Box 1890,
Wilmington, NC 28402-1890
Nordi Dakota
Omaha District Engineer, ATTN:
CENWO-OP-R, 215 North 17th
Street, Omaha, NE 68102-4978
Ohio
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 8di Street,
Huntington, WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN:
CESWT-OD-R, P.O. Box 61, Tulsa,
OK 74121-0061
Oregon
Portland District Engineer, ATTN:
CENWP-PE-G, P.O. Box 2946,
Portland, OR 97208-2946
Pennsylvania
Baltimore District Engineer, ATTN:
CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Rhode Island
New England District Engineer,
ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
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South Carolina
Charleston District Engineer, ATTN:
CESAC-CO-P, P.O. Box 919,
Charleston, SC 29402-0919
South Dakota
Omaha District Engineer, ATTN:
CENWO-OP-R, 215 North 17th
Street, Omaha, NE 68102-4978
Tennessee
Nashville District Engineer, ATTN:
CELRN-OR-F, P.O. Box 1070,
Nashville, TN 37202-1070
Texas
Ft. Worth District Engineer, ATTN:
CESWF-OD-R, P.O. Box 17300, Ft.
Worth, TX 76102-0300
Utah
Sacramento District Engineer, ATTN:
CESPK-CO-O, 1325 J Street, CA
95814-2922
Vermont
New England District Engineer,
ATTN: CENAE-OD-R, 696 Virginia
Road, Concord, MA 01742-2751
Virginia
Norfolk District Engineer, ATTN:
CENAO-OP-R, 803 Front Street,
Norfolk, VA 23510-1096
Washington
Seattle District Engineer, ATTN:
CENWS-OP-RG, P.9TBox 3755,
Seatde, WA 98124-2255
West Virginia
Huntington District Engineer, ATTN:
CELRH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN:
CEMVP-CO-R, 190 Fifth Street
East, St. Paul, MN 55101-1638
Wyoming
Omaha District Engineer, ATTN:
CENWO-OP-R, 215 North 17th
Street, NE 68102-4978
District of Columbia
Baltimore District Engineer, ATTN:
CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Pacific Territories
Honolulu District Engineer, ATTN:
CEPOH-ET-PO, Building 230, Fort
Shatter, Honolulu, HI 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATTN:
CESAJ-CO-R, P.O. Box 4970,
Jacksonville, FL 32202-4412
State (or Tribal) Certification of
Nationwide Permits
State or tribal water quality
certification pursuant to Section 401 of
the Clean Water Act, or waiver thereof,
is required for activities authorized by
NWPs which may result in a discharge
into waters of the United States. In
addition, any State witii a Federally
approved Coastal Zone Management
(CZM) Plan must agree with the Corps
determination that activities audiorized
by NWPs which are within, or will
affect any land or water uses or natural
resources of the State's coastal zone, are
consistent with the CZM plan. Section
401 water quality certifications and/or
CZM consistency determinations may
be conditioned, denied, or authorized
for parts of die NWPs.
The Corps believes that, in general,
the activities authorized by the NWPs
will not violate State or tribal water
quality standards and will be consistent
with State CZM Plans. The NWPs are
conditioned to ensure that adverse
environmental effects will be minimal
and are die types of activities that
would be routinely authorized, if
evaluated under the individual permit
process. The Corps recognizes tiiat in
some States or tribes there will be a
need to add regional conditions or
individual State or tribal review for
some activities to ensure compliance
with State or tribal water quality
standards or consistency widi State
CZM Plans. The Corps goal is to develop
such conditions so diat the States or
tribes can issue 401 water quality
certifications or CZM consistency
agreements. Therefore, each Corps
district will initiate discussions with
their respective States or tribes, as
appropriate, following publication of
this proposal to discuss issues of
concern and identify regional
modification and otiier approaches to
the scope of waters, activities,
discharges, and notification, as
appropriate, to resolve these issues.
Note that there will be some States
where an SPGP has been adopted and
the NWPs have been wholly or partially
revoked. Concurrent with today's
proposal, Corps districts may be
proposing modification or revocation of
the NWPs in States where SPGPs will be
used in place of some or all of the NWP
program.
Section 401 of the Clean Water Act:
This Federal Register notice of these
NWPs serves as the Corps application to
the States, tribes, or EPA, where
appropriate, for 401 water quality
certification of die activities authorized
by these NWPs. The States, tribes, and
EPA, where appropriate, are requested
to issue, deny, or waive certification
pursuant to 33 CFR 330.4(c) for tiiese
NWPs.
Proposed NWPs A, B, C, D, E, and F,
and the proposed modifications to
NWPs 12, 14, 27, and 40 involve
activities which would result in
discharges and dierefore 401 water
quality certification is required.
The proposed modifications to NWPs
3 and 7 involve various activities, some
of which may result in a discharge and
require 401 water quality certification
and others of which do not. State denial
of 401 water quality certification for any
specific NWP affects only those
activities which may result in a
discharge. For those activities not
involving discharges, die NWP remains
in effect.
If a State denies a 401 water quality
certification for certain activities widiin
diat State, then the Corps will deny
NWP audiorization for diose activities
widiout prejudice. Corps districts will
issue provisional NWP verification
letters upon receipt of a PCN for such
projects. The provisional verification
letter will contain all general and
regional conditions as well as any
project specific conditions the Corps
determines are necessary, and will
notify die applicant diat they must
obtain a project specific Section 401
water quality certification, or waiver
diereof, prior to starting work in waters
of die United States. Anyone wanting to
perform such activities where a PCN is
not required must first obtain a project
specific 401 water quality certification
or waiver thereof from the State, before
proceeding under die NWP. This
requirement is provided at 33 CFR
330.4(c).
Section 307 of the Coastal Zone
Management Act (CZMA): This Federal
Register notice serves as die Corps
determination diat die activities
authorized by diese NWPs are
consistent with States' CZM programs,
where applicable. This determination is
contingent upon the addition of State
CZM conditions and/or regional
conditions or the issuance by die State
of an individual consistency
concurrence, where necessary. The
States are requested to agree or disagree
witii die consistency determination
pursuant to 33 CFR 330.4(d) for these
NWPs.
The Corps CZMA consistency
determination only applies to NWP
audiorizations for activities diat are
widiin, or affect any land or water uses
or natural resources of a State's coastal
zone. NWP audiorizations for activities
diat are not widiin or would not affect
a State's coastal zone are not contingent
on such State's agreement or
disagreement witii die Corps
consistency determinations.
If a State disagrees witii die Corps
consistency determination for certain
activities, tiien die Corps will deny
audiorization for tiiose activities
widiout prejudice. Corps districts will
issue provisional NWP verification
letters upon receipt of a PCN for such
projects. The provisional verification
letter will contain all general and
regional conditions as well as any
project specific conditions die Corps
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36051
determines are necessary, and will
notify the applicant that they must
obtain a project specific CZMA
consistency determination prior to
starting work in waters of the United
States. Anyone wanting to perform such
activities where a PCN is not required
must present a consistency certification
to the appropriate State agency for
concurrence. Upon concurrence with
such consistency certifications by the
State, the activity would be authorized
by the NWP. This requirement is
provided at 33 CFR 330.4(d).
Discussion of Proposed Nationwide
Permits
The following is a discussion of the
new NWPs we are proposing to issue.
We have identified these NWPs by
letters received in response to the
December 13, 1996, Federal Register,
Final Notice of Issuance, Reissuance,
and Modification of Nationwide Permits
(61 FR 65874) and as a result of a
workshop at the Corps 1997 Biennial
National Regulatory Program
Conference. If issued, they would be
placed at a reserved NWP number or
given a new number. Theproposed
modification to NWP 29~Is discussed at
the end of the preamble.
A. Residential, Commercial, and
Institutional Activities
One commenter recommended an
NWP to authorize the construction of
residential developments and associated
activities, including roads, stormwater
management facilities, and amenities for
recreation, such as golf courses,
swimming pools, playing fields, and
hiking and biking trails.
Similar comments were received
recommending that the Corps develop
an NWP for the construction of
industrial and office developments,
including retail and recreational
facilities. Another commenter
recommended an NWP for the
development and modification of
commercial real estate projects, with
different thresholds for site plan
development and the construction of
roads and utilities. A third commenter
recommended an NWP for commercial
and industrial activities. An NWP for
commercial development activities was
also recommended by the participants at
the 1997 Biennial National Regulatory
Program Conference workshop.
Comments were also received
recommending an NWP for the
construction of Federal, State, Tribal
and local government buildings and
institutional buildings, including, but
not limited to, schools, fire stations,
public works buildings, libraries,
hospitals and places of worship, and
their attendant features (septic systems,
parking lots, loading docks,
playgrounds, etc.).
From May 1, 1997, through December
31, 1997, NWP 26 was used to authorize
1,581 residential, commercial or
institutional developments, impacting
approximately 835 acres of wetlands
and 42,190 linear feet of stream bed.
Approximately 2,634 acres of
compensatory mitigation were provided
to offset the adverse environmental
effects of these projects.
The Corps is proposing an NWP to
authorize discharges of dredged or fill
material into non-tidal waters of the
United States, excluding wetlands
contiguous to tidal waters, for
residential, commercial, and
institutional development activities, and
associated infrastructure, including
utilities, roads, driveways, and
sidewalks. Infrastructure is integral to
residential, commercial, and
institutional development activities, and
should be included as a part of the
single and complete project for NWP
authorization, unless the road or utility
line is a component of a separate linear
project that will provide service to other
residential subdivisions, commercial
sites, or other areas.
This NWP is intended to authorize the
construction of residential
developments (particularly
subdivisions), commercial
developments, and institutional
developments with minimal impacts
that comply with the terms and
conditions of the permit. These types of
activities are currently authorized by
NWP 26. This NWP is not intended to
replace NWP 29, which authorizes the
construction of a single family residence
to be used only by the person who will
use the house as a personal residence.
Contractors and commercial developers
cannot use NWP 29 to construct a
residence which would subsequently be
offered for sale upon completion.
Furthermore, NWP 29 authorizes
discharges into all non-tidal waters of
the United States, whereas NWP A
authorizes discharges into non-tidal
waters of the United States, excluding
non-tidal wetlands contiguous to tidal
waters.
The Corps is also considering and
seeking comments on options to
establish acreage limits for this NWP.
One option would be to establish a
simple acreage limit, such as 3 acres, for
a single and complete project. Another
option would be to establish a sliding
scale or indexing of impact acreage
limits for this NWP, based on parcel
size, percentage of wetlands on the
parcel, or other criteria. An example of
such a sliding scale, based on parcel
size, is shown in the table below:
Parcel Size
Less than 5 acres
5— 10 acres
10—15 acres
15—100 acres
Greater than 100 acres
Maximum
acreage
loss author-
ized
1A acre
Vz acre
1 acre.
2 acres
3 acres
Such a scheme helps ensure minimal
adverse impacts by authorizing smaller
impacts for smaller projects and
encouraging planning of developments
that reduces impacts to aquatic
resources. For example, under a sliding
scale, a 25-acre development could
result in the loss of only 2 acres of
waters of the United States, whereas
under a simple acreage limit the
permittee could impact up to 3 acres.
For NWP A, the Corps is soliciting
comments on the use of a sliding scale,
as well as acreage for parcel sizes and
impacts to waters of the United States
that would be used for the sliding scale.
The Corps is also seeking comments on
the benefits and drawbacks of such a
sliding scale. The Corps is also seeking
comments on the PCN threshold(s) that
would be used in conjunction with the
sliding scale of acreage limitation.
The Corps is proposing to require a
PCN for losses of greater than Vb acre of
non-tidal waters of the United States, or
for any project that would result in the
loss of any open waters, such as
perennial or intermittent stream beds or
lakes. The PCN will be subject to Corps-
only review where the project would
result in the loss of 1 acre or less of
waters of the United States, and to
review by the Corps and coordinating
agencies where the loss of waters of die
United States would exceed 1 acre. As
part of the PCN, applicants must submit
a written statement to the District
Engineer explaining why discharges in
waters of the United States must occur,
•what measures were taken to avoid and
minimize impacts, and how the
permittee will provide compensatory
mitigation for those Impacts. We have
conditioned this NWP to require
compensatory mitigation for projects
resulting in the loss of greater than Vs
acre of waters of the United States. In
general, compensatory mitigation for
losses below 1 acre will be provided
most effectively through mitigation
banks and in lieu fee programs. The
compensatory mitigation proposal
required for the PCN does not have to
include detailed plans and
implementation schedules, but must
adequately describe the proposal so that
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the District Engineer can determine if
the proposed compensatory mitigation
is appropriate. If the project involves
streams or other open water, then
buffers, including upland areas adjacent
to the open waters, to these areas may
be required as a part of the
compensatory mitigation proposal. The
permittee may be required to submit
detailed compensatory mitigation plans
at a later date as a special condition of
the NWP authorization unless a
mitigation bank or in lieu fee program
is used to provide the compensatory
mitigation. For many of these types of
projects, the Corps believes that
compensatory mitigation is necessary to
offset adverse impacts to waters of the
United States.
The PCN requirement will allow
district engineers to assert discretionary
authority when they have determined
that the adverse effects of the proposed
work will be more than minimal. The
Corps believes that the issuance of this
NWP, along with its terms, limitations,
and general conditions, as well as any
regional or case-specific conditions, will
ensure that the authorized work will
have no more than minimal adverse
effects, both individually"and
cumulatively, on the aquatic
environment on a watershed basis.
Projects authorized by this NWP must
be designed to avoid and minimize
impacts to waters of the United States
to the extent practicable on the project
site. In addition, the project design must
reduce adverse effects to water quality
by maintaining off-site upstream and
downstream baseflow conditions,
providing for stormwater management,
and normally maintaining a vegetated
buffer zone if the project occurs in the
vicinity of open water. Through regional
conditions, district engineers may
require additional watershed protection
techniques, if appropriate.
This NWP cannot be used to authorize
recreational facilities that are not an
integrated component of a residential,
commercial, or institutional
development. The development of a
master planned community that
includes residential, recreation, and
commercial activities may be authorized
by NWP B. The issuance of this NWP,
as with any NWP, provides for the use
of discretionary authority when
valuable or unique aquatic areas may be
affected by this activity.
B. Master Planned Development
Activities
One commenter proposed an NWP to
authorize discharges of dredged or fill
material to construct residential,
commercial, and industrial
developments that are planned or
designed for the long term protection of
aquatic resources and are owned and
managed by a single owner; Such
developments are designed for
residential, industrial, and/or
commercial uses, as well as recreational
uses. Master planned developments can
provide long term protection of valuable
aquatic resources by carefully
integrating the development into the
landscape and protecting the remaining
wetlands, open waters, and associated
buffers. These developments typically
set aside wetlands, riparian corridors,
and valuable upland habitats for
restoration, enhancement, or
preservation as part of the plan for the
area.
Increasingly, counties and local
communities across the country are
encouraging mixed-use development
and encouraging land use planning that
incorporates consideration of the
environment. Such initiatives provide
communities with an opportunity to
address a variety of concerns including
protecting sensitive natural areas,
consolidating infrastructure, and
maximizing the delivery of urban
services. Through local zoning and land
use programs, governments are working
to achieve these goals by encouraging
the development of environmentally
responsible, multiple-use communities.
The Corps is committed to ensuring that
the NWP program is consistent with
these goals and objectives and is
proposing this NWP to build on the
incentives currently provided by State
and local governments.
The Corps is proposing an NWP for
master planned development activities
that are designed, constructed, and
managed to conserve and enhance the
functions and values of waters of the
United States on the project site. The
Corps has designed NWP B to authorize
only those master planned development
activities that are designed, constructed,
and managed to integrate multiple uses
in a manner that conserves and
enhances the functions and values of
the water resources on the project site.
Specifically, activities authorized by
this permit often would incorporate
several land use categories, including
residential uses (e.g., single family
homes, apartments), commercial uses
(e.g., stores, hotels, office buildings),
industrial uses (e.g., water treatment
facilities), transportation uses (e.g., light
rail, roads), and open space uses (e.g.,
parks, trails).
This NWP authorizes discharges of
dredged or fill material into non-tidal
waters of the United States, excluding
non-tidal wetlands contiguous to tidal
waters, for the construction or
expansion of master planned
developments. The Corps is seeking
comments on the definition of master
planned development to use for this
NWP. A PCN will be required for all
activities authorized by this NWP. The
PCN must include a wetland assessment
that utilizes a functional assessment
method approved by the District
Engineer. Permittees will be required to
avoid and minimize impacts to waters
of the United States to the maximum
extent practicable and must include a
written statement detailing compliance
with this condition. The PCN must also
indicate on the site plans all aquatic
areas and adjacent buffer zones that
would be protected by conservation
easements or other measures. All
preserved wetland areas, streams,
mitigation areas, and buffer zones
adjacent to waters of the United States
on the site must be protected by a deed
restriction, conservation easement, or
other method of conservation and
preservation as a condition of the
permit. The District Engineer will
review the proposed master planned
development activities to ensure that
these features are designed to ensure
resource conservation and protection,
and to protect aquatic resources.
The Corps is also considering and
seeking comments on options to
establish acreage limits for this NWP.
One option would be to establish a
simple acreage limit, such as 10 acres,
for a single and complete project.
Another option would be to establish
acreage limits for master planned
developments that are determined by
indexing the upper limit of adverse
wetland impact to the size of the parcel,
to the amount of wetlands on die parcel,
or to a percentage of the jurisdictional
waters of the United States on a project
site. The following table is an example
of such a sliding scale, which indexes
the acreage limit to parcel size:
Parcel size
100—200 acres
200—300 acres
300—500 acres
Greater than 500 acres
Maximum
acreage
loss author-
ized
3 acres.
5 acres.
7 acres.
1 0 acres.
In this example, master planned
developments constructed on parcels
less than 100 acres in size could not be
authorized by this NWP. Instead, NWP
A or another NWP may be used to
authorize the development, if
appropriate.
Examination of the above table shows
that, in general, smaller project sites
would be allowed a relatively higher
wetland impact limit, as a percentage of
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36053
parcel size, than would larger sites,
although the ratio does not decrease
proportionately as the parcel size
increases. (This same relationship
already occurs under the existing NWP
program, due to the Corps requirements
for on-site minimization and avoidance,
and the use of regional conditions). The
use of a sliding scale can be justified by
the limited flexibility that a smaller
project site affords an applicant,
whereas a larger project site affords an
applicant more options in developing
the property, and consequently, more
opportunities to minimize wetland
impacts. Such a method would differ
from most NWPs, in that most NWPs
have acreage limits that do not vary
with the size of the project site. An
indexed or varying scale for the
maximum threshold would encourage
the master planning of larger sites and
discourage fragmenting projects to get
more acres of impact to waters of the
United States.
Other methods of determining acreage
limits that we are considering would
allow the applicant to adversely impact
a certain percentage of the jurisdictional
waters of the United States on the
project site (e.g., 2% to 1U% of the
jurisdictional areas), or an amount of
jurisdictional waters equal to a
percentage of the parcel size. For
example, at 1% of the total parcel size,
a project on a 200 acre parcel could
impact up to 2 acres of waters of the
United States, and at 2% of the parcel
size, a project on a 200 acre parcel could
impact up to 4 acres of waters of the
United States, etc.
These are just a few examples of an
indexed or varying maximum threshold
concept that the Corps is considering.
Any such concept, if adopted, would
still be subject to on-site avoidance and
minimization requirements, as well as
regional conditions and/or other
restrictions. Any such permits would
have to be carefully conditioned, and
the respective acreage limits (and
implied incentives) studied closely in
order for these proposals to lead to a net
reduction in the theoretical acreage of
impacted waters of the United States.
The Corps is seeking comments on the
practicability of such concepts, the
conditions that should be attached to
any such concepts, and the advantages
or disadvantages of Implementing such
concepts.
District engineers will consider the
use of discretionary authority when
sensitive and/or unique areas or areas
with significant social or ecological
functions and values may be adversely
affected by the work. Although we have
proposed a high acreage limit for this
NWP, impacts must be avoided and
minimized to the maximum extent
practicable, with appropriate
compensatory mitigation to offset losses.
Moreover, the comprehensive approach
to the watershed area to be developed
and the fact that all remaining waters of
the United States and buffers will be
protected will benefit the overall aquatic
system. The compensatory mitigation
should, in most cases, be on site and be
incorporated into the development.
District engineers can impose special
conditions on a case-by-case basis to
ensure the impacts are minimal.
Regional conditions can also be used to
limit the use of this NWP in high value
aquatic ecosystems.
C. Stormwater Management Facilities
The Corps is proposing an NWP to
authorize the discharge of dredged or
fill material into non-Section 10 waters
of the United States, including
wedands, for the construction and
maintenance of Stormwater management
facilities. This permit may be used to
authorize the construction of new
Stormwater management facilities
including: the excavation for Stormwater
ponds/facilities, detention, and
retention basins; installation and
maintenance of water control structures,
outfall structures, and emergency
spillways; and the maintenance
excavation of existing Stormwater
management ponds/facilities, detention,
and retention basins. This permit may
not be used to authorize any activities
for the construction of ponds for other
purposes.
The proposed acreage limit is 2 acres
for the construction of new Stormwater
management facilities in order to
authorize the construction of
consolidated regional Stormwater
management facilities. There is no
acreage limit proposed for the
maintenance of Stormwater management
facilities because maintenance of these
facilities is necessary to ensure the
designed capacity is maintained for
water quality improvements and
reduction of downstream erosion and
flooding. Notification will be required
for the loss of greater than Va acre of
waters of the United States, including
wetlands, the loss of greater than 500
linear feet of stream bed, or the
maintenance of existing Stormwater
management facilities causing the loss
of greater than 1 acre of wetlands.
Between May 1, 1997, and December 31,
1997, NWP 26 was used to authorize the
construction or maintenance of 358
Stormwater management facilities.
These projects resulted in the loss of
approximately 107 acres of wetlands,
and 33,170 linear feet of stream bed,
with 205 acres of compensatory
mitigation provided by permittees. In
most cases, the construction of
Stormwater management facilities will
be included in project specific permits
(e.g., NWPs A, B, C, and D). There may
also be cases where the construction of
a Stormwater management facility will
be required, not in association with the
construction of a residential,
commercial, or institutional
development, but for a watershed
management plan.
Placement of Stormwater management
facilities in jurisdictional areas in
certain circumstances may provide more
environmentally sensitive planning and
benefits to the aquatic environment than
placing them in the uplands. By
incorporating best management
practices and watershed protection
techniques that provide for long-term
protection and enhancement of aquatic
resources, and requiring a PCN for
certain activities, the Corps believes that
impacts to the aquatic environment will
be minimal for this NWP. In response to
a PCN, district engineers can require
special conditions on a case-by-case
basis to ensure that the Impacts to the
aquatic environment are minimal or
assert discretionary authority to require
an individual permit for the work.
Division engineers may place regional
conditions on this NWP. Such regional
conditions may utilize interagency
regional guidance tfiat already exists, to
the extent that such guidance complies
with Corps regulations and allows the
development of enforceable regional
conditions.
D. Passive Recreational Facilities
One commenter recommended an
NWP to authorize the construction of
recreational facilities, such as
playgrounds, playing fields, swimming
pools and related structures, biking and
hiking trails, and golf courses. Another
commenter proposed an NWP to
authorize discharges associated with the
expansion or maintenance of ski areas.
NWP 26 has been used to construct
recreational facilities in headwaters and
isolated wetlands. From May 1, 1997,
through December 31, 1997, NWP 26
was used to authorize 57 recreational
facilities, but this data does not include
information on the specific types of
recreational facilities authorized by
NWP 26, or the acreage of impacts and
compensatory mitigation.
The Corps is proposing an NWP to
authorize discharges of dredged or fill
material into non-tidal waters of the
United States, excluding non-tidal
wetlands contiguous with tidal waters,
for the construction or expansion of
passive recreational facilities. For the
purposes of this NWP, passive
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recreational facilities are defined as low-
impact recreational facilities that are
constructed so that they do not
substantially change preconstruction
grades or deviate from natural landscape
contours for the following types of
activities: biking, hiking, camping,
running, and walking. Passive
recreational facilities may also include
the construction or expansion of golf
courses or ski areas, provided they are
designed to be integrated with existing
landscape features, do not require
substantial amounts of grading or filling,
and adverse effects to wetlands and
riparian areas are minimized to the
extent practicable. District engineers
may require vegetated buffers to
wetlands and streams and water quality
management techniques as measures to
ensure the impacts caused by these
recreational facilities are minimal.
Passive recreational facilities can be
either public or private and will not
have a substantial amount of buildings
and other impervious surfaces, such as
concrete or asphalt. This NWP also
authorizes the construction of support
facilities such as office buildings,
maintenance buildings, storage sheds,
and stables, but does nofauthorize the
construction of associated hotels or
restaurants. Some grading and filling
will be necessary to construct these
facilities, such as constructing a gravel
running trail or paving a narrow bike
path through a park. Timber decks and
walkways should be used where
possible to minimize adverse impacts to
waters of the United States.
Campgrounds authorized by this NWP
should have few impervious surfaces
such as pavement and should consist of
small cleared areas for tents and picnic
tables connected by dirt or gravel trails
or roads, with as little grading and
rilling as possible.
The maximum acreage loss authorized
by this NWP is 1 acre of non-tidal
waters of the United States (wetlands
contiguous to tidal waters are also
excluded). The Corps is proposing to
require a PCN for losses of greater than
Vs acre of waters of the United States
and/or greater than 500 linear feet of
stream bed. Recreational facilities
authorized by this NWP should be
designed to protect valuable aquatic and
upland habitats through avoidance and
minimization. Compensatory mitigation
will normally be required for losses of
greater than Va acre of waters of the
United States. A permittee may provide
compensatory mitigation through
individual restoration, enhancement, or
creation of aquatic habitats, or through
the preservation of adjacent open or
green space, particularly those that
include wetland and riparian habitats.
Compensatory mitigation can also be
provided through in lieu fee programs,
land trusts, and mitigation banks.
This NWP does not authorize the
construction or expansion of
campgrounds for mobile homes, trailers,
or recreational vehicles. This NWP does
not authorize the construction of
playing fields, basketball or tennis
courts, race tracks, stadiums, or arenas.
Any recreational facility not authorized
by this NWP may be authorized by
another NWP, a regional general permit,
or individual permit. Playing fields,
playgrounds, and other golf courses may
be authorized by NWP A if they are an
integral part of a residential subdivision.
Commercial recreational facilities may
be authorized by NWP A. Playgrounds,
ball fields, golf courses, parks, and trails
may be authorized by NWP B if these
facilities are part of a master planned
development. The construction of hotels
and conference centers that are
commonly associated with recreational
facilities may be authorized by NWP A.
By restricting this NWP to passive
recreational facilities, we believe that
the impacts to the aquatic environment
will be minimal. In response to a PCN,
district engineers can require special
conditions on a case-by-case basis to
ensure that the impacts to the aquatic
environment are minimal or assert
discretionary authority to require an
individual permit for the work.
E. Mining Activities
During the 1996 NWP reissuance
process, the Corps proposed an NWP for
"Mining Operations". Based on the
comments and information gathered
during the process, the Corps decided to
encourage the development of regional
general permits, rather than to develop
national limits to meet the minimal
effects requirement. As a part of the
initiative to replace NWP 26, the
aggregate industry (i.e., sand, gravel,
crushed and broken stone) and hard
rock metal/mineral mining industry
(i.e., extraction of metalliferous ores
from subsurface locations) provided
information and proposed draft NWPs
that they believed would meet the
minimal Impact requirement.
The Corps has evaluated that input
and developed a new proposed NWP for
mining activity discharges that would
have minimal impact (as conditioned)
in certain aquatic ecosystems. We have
organized the NWP around specific
activities, within specific aquatic
ecosystems. We have also provided
separate sections for aggregate activities
and for hard rock/mineral mining
activities. This recognizes that while
some of the discharges being regulated
by the Corps are similar for both
industries, there are considerable
differences in the impacts associated
with the subsequent processing of the
materials being extracted.
The terms and conditions of this NWP
as well as the typical State and local
permitting requirements mining
operations are subject to, serve to
minimize potential resource use
conflicts and make it likely that only
those activities which have adequately
addressed the issue of such potential
conflicts would be in a position to
consider using this NWP. Both
industries are generally speaking highly
regulated, often subject to State and
local land use planning requirements
and individual permits. The NWP does
not obviate the need .to obtain other
authorizations required by law, [33 CFR
330.4(b)]. For example, hard rock/
mineral mining operations often require
National Pollution Discharge
Elimination System (NPDES) permits for
discharges associated with ore
processing techniques, and those
NPDES permits must be obtained.
This NWP is expected to be used
primarily for commercial mining
activities, although smaller, non-
commercial operations may benefit from
this NWP. These activities provide both
public and private benefits by providing
materials for construction,
manufacturing, and other industries.
The Corps is proposing to authorize
discharges of dredged or fill material
associated with specific activities
undertaken during the mining of
aggregate materials (i.e., sand, gravel,
crushed and broken stone) and hard
rock/mineral mining at new and
existing mining sites. Mining activities
authorized by this NWP include:
discharges from filling, excavation, and
dredging; exploration; processing;
construction of berms, haul roads, dikes,
and road crossings; construction of
settling ponds and settling basins;
ditching and trenching; mechanized
landclearing; storm water and surface
water management; stream diversion or
relocation; stockpiling; sediment and
erosion controls; grading; and other
activities involved in mining and mined
land reclamation.
The Corps is proposing two options
for the acreage limit for a single and
complete mining project in paragraph
(j). We are requesting comments on
whether the acreage limit for a single
and complete project should be 3 acres
or 2 acres. The acreage limit for a single
and complete project is a combination
of the acreage limit for the specific
mining activities and the acreage limit
for support activities.
This NWP authorizes only those
Section 404 discharges associated with
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36055
mining activities that have been
considered to have minimal impacts, as
conditioned. For example, any NWP
notification for in-stream mining
activities must include a discussion of
necessary measures to prevent increases
in stream gradient and water velocities
to prevent adverse effects (e.g., head
cutting, bank erosion) on upstream and
downstream channel conditions, as well
as measures to minimize adverse effects
to downstream turbidity. We are
particularly interested in comments
concerning conditions that are
appropriate for mining activities in the
aquatic ecosystems we have identified.
While thresholds and limits have
been developed for each type of aquatic
ecosystem, during the notification and
evaluation process the Corps may find
that further conditioning of the
nationwide permit for a specific
activity, including relocating or further
reduction of the impacts of the activity
and/or additional compensatory
mitigation, is necessary or that the
project should be evaluated under the
Corps individual permitting procedures.
Specifically, if the District Engineer
determines that a proposed activity will
have more than minimal"aSverse
environmental effects, the District
Engineer will require an individual
permit. This would result in a project
specific alternatives analysis, including
off-site alternatives.
This NWP requires that the permittee
submit a reclamation plan with the
notification. District engineers have the
flexibility to assert discretionary
authority and not authorize further
mining activities under this NWP if
there is mined land reclamation
required for previously authorized
mining activities that has not been
completed. Subsequently, upon
completion of the required mined land
reclamation, the District Engineer may
authorize further mining activities
under this NWP.
This NWP sets forth criteria that,
combined with the discretion of the
District Engineer, and the regional
conditioning that can take place at the
district and State levels, help ensure
that only minimal adverse
environmental effects will result on a
cumulative basis. With required
compensatory mitigation for losses of
wetlands, environmental gains in
addition to adequate environmental
protections can be anticipated as an end
result of use of this NWP. It is
reasonable to assume that the potential
time and cost savings associated with
use of this NWP will encourage
applicants to design their project within
the scope of the NWP rather than
request an individual permit, which
could potentially have a greater adverse
impact. In addition, use of this NWP
will enhance regulatory oversight of
projects potentially encompassing much
greater impacts.
Acreage limitations in this NWP
restrict its applicability. Mining projects
are of varying sizes, sometimes covering
hundreds of acres, which include areas
under Corps jurisdiction. Mandatory
compensatory wetland mitigation
ensures that losses of wetland functions
are minimal on a cumulative basis.
Furthermore, as.a result of the
notification requirements and the
opportunity for regional conditioning,
even small discharges can be ineligible
for this NWP if the unique
environmental function or ecological
setting is determined to require further
protection.
Mining companies have considerable
experience in land reclamation,
including the creation and restoration of
wetland and riparian areas. Regulatory
confusion surrounding wetlands created
intentionally or unintentionally at
mining operations serve as further
testament to the ability to create
wetlands as a part of the mining and
reclamation process. We are requesting
comments concerning the following
position as a part of the NWP notice:
"Waterfilled depressions and pits,
ponds, etc., created in any area not a
"water of the U.S.", as a result of
mining, processing, and reclamation
activities, shall not be considered
"waters of the U.S." until one of the
following occurs:
(1) All construction, mining, or
excavation activities, processing
activities and reclamation activities
have ceased and the affected site has
been fully reclaimed pursuant to an
approved plan of reclamation; or
(2) All construction, mining, or
excavation activities, processing
activities and reclamation activities
have ceased for a period of fifteen (15)
consecutive years or the property is no
longer zoned for mineral extraction, the
same or successive operators are not
actively mining on contiguous
properties, or reclamation bonding, if
required, is no longer in place; and the
resulting body of water and adjacent
wetlands meet the definition of "waters
of the U.S." (33 CFR 328.3 (a))."
This clarification would resolve a
long-standing jurisdictional debate that
has consumed much time and effort on
the part of the regulated community and
regulators alike, without contributing
significandy to environmental
protection. Asserting jurisdiction in
such circumstances provides an
incentive for operators to go out of their
way to make sure that wetlands do not
occur on their properties, thus depriving
for the duration of normal activities,
whatever benefits would have accrued
to the area as a result of the temporary
or permanent creation of wetlands.
Similarly, such assertions lessen the
likelihood of non-mitigation wetland
creation for fear of regulatory problems.
F. Reshaping Existing Drainage Ditches
One commenter recommended an
NWP to authorize the maintenance of
ditches. The maintenance of drainage
ditches constructed in waters of the
United States does not require a Section
404 permit (i.e., the maintenance is
exempt), provided the drainage ditch is
returned to its original dimensions and
configuration (see 33 CFR 323.4(a)(3)).
However, the modification or new
construction of drainage ditches in
waters of the United States requires a
Section 404 permit. NWP 26 has been
used in the past to authorize this
activity in headwaters and isolated
wetlands.
The Corps is proposing an NWP to
authorize discharges of dredged or fill
material into non-Section 10 waters of
the United States for reshaping existing
drainage ditches by altering the cross-
section of the ditch to benefit the
aquatic environment. Since
maintenance of drainage ditches to their
original dimensions and configurations
is exempt from Section 404 permit
requirements, the purpose of this NWP
is to encourage reshaping of ditches in
a manner that provides benefits to the
aquatic environment. The original
dimensions and configuration of the
ditch may not provide water quality
benefits that could be achieved with a
different configuration. For example, the
banks of ditches can be graded at a
gentler slope to reduce erosion and
decrease sediment transport down the
ditch by trapping sediments. Shallower
slopes also increase the amount of
vegetation along the bank of the ditch,
which can decrease erosion, increase
nutrient and pollutant uptake by plants,
and increase the amount of habitat for
wildlife. This NWP is limited to
reshaping currently serviceable drainage
ditches constructed in waters of the
United States, provided the activity
does not change the location of the
drainage ditch. The centerline of the
reshaped drainage ditch must be in
essentially the same location as the
centerline of the existing ditch. This
NWP does not authorize reconstruction
of drainage ditches that have become
ineffective through abandonment or lack
of regular maintenance. This NWP may
not be used to relocate drainage ditches
or to modify drainage ditches to
increase the area drained by the ditch
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(e.g., by widening or deepening the
ditch beyond its original design
dimensions or configuration) or .to
construct new drainage ditches if the
previous drainage ditches have been
neglected long enough to require
reconstruction. This NWP does not
authorize channelization or relocation
of streams to improve capacity of the
streams to convey water. The
construction of new drainage ditches or
the reconstruction of drainage ditches
may be authorized by an individual
permit, another NWP, or a regional
general permit.
This NWP does not authorize the
maintenance or reshaping of drainage
ditches constructed in navigable waters
of the United States (wetlands that are
contiguous to Section 10 waters are also
excluded). A Section 10 permit is
required for the maintenance or
modification of drainage ditches
constructed in navigable waters of the
United States.
The Corps is proposing to require
notification for reshaping drainage
ditches where the material excavated
during reconfiguration is sidecast into
waters of the United States. If the ditch
is being maintained to its-original
dimensions and configuration and the
excavated material is sidecast into
waters of the United States, no
notification is necessary because this
activity is exempt and a Section 404
permit is not required. Compensatory
mitigation for the work authorized by
this NWP should not be required if the
ditch is reshaped to improve water
quality. This activity can be considered
to be self-mitigating, in that reshaping
the ditch will normally result in
improvements in water quality and any
wetland vegetation that Inhabited the
ditch prior to the work will recolonize
the ditch. In addition, if the project
proponent did the work in such a
manner that qualified for the exemption,
compensatory mitigation would not be
required since the activity is exempt.
Requiring compensatory mitigation for
modifying the cross-sectional
configuration of the ditch may
encourage maintenance to the original
dimensions and configuration and
discourage reshaping the ditch to a more
environmentally beneficial shape.
Division engineers can regionally
condition this NWP to exclude certain
waterbodies or require notification
when waters or unique areas that
provide significant social or ecological
functions and values may be adversely
affected by the work. Activities
authorized by this NWP will have
minimal adverse effect on the aquatic
environment, since it is limited to
existing drainage ditches and activities
that improve water quality. District
engineers can assert discretionary
authority when very sensitive or unique
areas may be adversely affected by these
activities. It is unlikely that this NWP
will result in a substantial increase in
the Corps workload. The PCN
requirement allows Corps districts, on a
case-by-case basis, to add appropriate
special conditions to ensure that the
adverse effects are minimal. The District
Engineer can also assert discretionary
authority to require an individual
permit for any activity that may have
more than minimal adverse effects.
Discussion of Proposed Modifications to
Existing Nationwide Permits
In response to comments received in
reply to the December 13, 1996, Federal
Register notice, the Corps is proposing
to modify NWPs 3, 7, 12, 14, 27, and 40.
These modifications will increase the
number of activities authorized by these
NWPs. The following is a discussion of
our reasons for modifying these NWPs.
3. Maintenance
The Corps has proposed several
modifications to this permit, as outlined
in paragraphs (ii) and (iii) of the
proposed permit. The Corps experience
with NWP 3 to date has been very good;
navigable waters have not been
obstructed and adverse impacts to the
aquatic environment are very minor.
Furthermore, in many cases, use of
NWP 3 actually enhances the aquatic
environment. For example, replacing a
damaged seawall often eliminates
chronic turbidity caused by erosion. In
paragraph (i) of the proposed
modification, the Corps is retaining all
of the original terms and conditions of
this NWP. The Corps is proposing to
add two related activities to this NWP:
removal of accumulated sediments in
the vicinity of existing structures and
restoration of upland areas damaged by
a storm, flood, or other discrete event.
Paragraph (ii) of the proposed
modification will authorize the removal
of accumulated sediments from stream
beds and other open water areas in the
vicinity of existing structures such as
bridges and culverted road crossings.
This modification also authorizes the
placement of rip rap to protect the
structure from scour. A new NWP to
authorize this work was recommended
as a result of a workshop at the 1997
Biennial National Regulatory Program
Conference. From May 1, 1997, through
December 31,1997, NWP 26 was used
126 times to authorize the maintenance
and clean-out of stream beds. The Corps
believes that it is more appropriate to
modify NWP 3 than to develop a new
NWP for this activity.
The accumulation of sediments in the
vicinity of structures is usually due to
the structure's effects on sediment
transport and flow patterns in the
waterbody. These sediment deposits
affect the ability of the structure to
function effectively and may increase
flooding in the area. In addition, these
deposits can create barriers to the
passage of fish and other aquatic
organisms. Periodic removal of these
aggraded materials is required to restore
stream flow conditions and protect the
integrity of the structure for the safety
of the public.
Paragraph (ii) of the proposed
modification of this NWP will be used
more often than NWP 26 to authorize
removal of sediments from the vicinity
of structures because it is not limited to
headwater streams where the median
flow on an annual basis is less than 5
cubic feet per second. This activity will
be authorized in all waters of the United
States. Paragraph (ii) limits the amount
of excavated material to the minimum
necessary to restore the waterbody to its
original dimensions (e.g., depth and
width), for a maximum distance of 200
feet upstream and downstream from the
structure. The amount of rip rap
discharged for scour protection must be
the minimum necessary to protect the
structure. Excavated sediments must be
deposited in an upland area, unless
otherwise authorized by the District
Engineer, and contained to prevent their
reentry into the waterway. We are
proposing to require a PCN for all work
performed under this paragraph.
We believe that removal of sediments
from the vicinity of these structures will
have minimal adverse effects on the
aquatic environment provided the
amount of material removed is the
minimum necessary to restore the
stream to preconstruction dimensions
(e.g., width and depth). Such work may
also provide environmental benefits by
restoring flow regimes and removing
barriers to the movement of aquatic
organisms. Flooding in the vicinity of
the structure may also be reduced. The
placement of rip rap for scour protection
is also likely to result in only minimal
adverse effects, because only small
amounts of rip rap are typically needed
to protect these structures. In those
areas inhabited by submerged aquatic
vegetation or other important aquatic
organisms, the PCN requirement of this
NWP will allow the District Engineer
the opportunity to assert discretionary
authority over the activity. In addition,
regional or case-by-case special
conditions such as time-of-year
restrictions can be placed on specific
activities or geographic areas.
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36057
This NWP will not authorize stream
channelization or stream relocation
projects. Stream channelization or
relocation may be authorized by an
individual permit, regional general
permit, or other NWP. Removal of
sediments from the vicinity of an
existing structure in tidal waters may be
authorized by an individual permit,
regional general permit, or other NWP,
such as NWP 19.
The PCN requirement will allow the
District Engineer to ensure that the
amount of sediment removed is the
minimum necessary and consider the
use of discretionary authority when
important ecological functions are
present or sensitive/unique areas may
be adversely affected. Districts may
impose regional or case-by-case special
conditions to decrease the maximum
distance to less than 200 linear feet
upstream or downstream of the
structure. Compensatory mitigation will
typically not be required for work
authorized by this NWP, since the work
usually involves removal of recently
aggraded sediments and may provide
benefits for aquatic organisms by
restoring flow regimes. Although a few
streams will have aggradSQ sediments
inhabited by vegetation, removal of
these vegetated deposits will have
minimal adverse effects on the stream.
In circumstances where sediment
deposits have developed extensive plant
communities, such as in a braided
stream, district engineers may require
compensatory mitigation or assert
discretionary authority to require an
individual permit
Paragraph (iii) of the proposed
modification of NWP Swill authorize
discharges of dredged or fill material for
the purpose of restoring uplands
adjacent to waters of the United States
where those uplands have been
damaged by discrete events such as
floods or storms. The purpose of this
modification is to allow the
reconstruction of shorelines, river
banks, and other lands adjacent to open
water areas to the extent and contours
that existed prior to the damaging event.
For example, the high banks of a river
may be subjected to damaging flood
flows, with the result that a substantial
area of the bank becomes undercut and
collapses into the river. The use of this
permit would allow the discharge of fill
material into the edge of the river in the
quantities needed to rebuild the river
bank. The installation of any bank
stabilization measures needed to protect
the restored area could be authorized
under a separate permit, such as NWP
13. In order to qualify for this permit,
the damage or loss of upland would
have to be traceable to a specific event
that has occurred within the 12 months
prior to the District Engineer receiving
notification of the proposed work. This
permit may not be used to reclaim lands
diat have been lost due to long-term
erosion processes, historic damage more
than 12 months old, or to restore lands
where no substantial evidence of
previous land contours can be
established. The determination of
previous land contours, and the extent
of restoration allowed under this permit,
is the responsibility of the District
Engineer. Proposals to reconfigure and
armor the rebuilt bank that the District
Engineer has determined to not qualify
for this permit may be processed as an
individual permit or general permit.
The 12 month notification deadline
has been proposed to allow the Corps to
establish that the damage has occurred
recently, and to verify that the purpose
of the permit application is to repair any
immediate damage, and not to reclaim
lands that may have existed in the past.
For example, a river may slowly change
course over a period of many years, with
a corresponding evolution of the
landscape. The meandering of a river is
a natural process, and this NWP would
not be applicable if a party wished to
relocate the channel of the river to
reconfigure a piece of property into a
more usable form, or to relocate the
channel to a historic configuration.
Likewise, an old land survey of a
property adjacent to a lake may not be
presented as evidence of justification for
use of this NWP, where the land in
question was located in what is now the
open waters of the lake, and the land
was lost to the lake several years ago.
The shorelines of lakes may change over
time, and the 12 month limit of this
proposed permit is needed to ensure
that areas of open water are not
reclaimed as dry land in a piecemeal
fashion based on historic surveys. The
12 month time period also seems
reasonable given that the affected
parties would be interested in quickly
repairing any damage diat has occurred
to their property. This permit does not
require that the restoration be
completed within 12 months; it only
requires that the Corps be notified
within 12 months of the date of the
damage. Any work authorized by this
permit would have to commence, or be
under contract to commence, within 2
years of the date of the damage.
The need for this NWP is justified by
the desire of landowners to quickly
repair property damage, or to ensure
that they will be able to restore the land
when resources become available. A
landowner who has suddenly been
deprived of a valuable piece of property
due to the effects of a flood or storm
may sustain a substantial economic loss
if he or she were unable to restore the
damaged land quickly. The availability
of this NWP would in many cases allow
the landowner to repair the damage and
minimize economic losses, without
having to apply for an individual
permit, which would require more time
to process. Notification requirements
and evidentiary conditions of this
permit should ensure that the work is
limited to that needed to restore recent
damage, and should prevent the
reclamation of historic lands.
This proposed modification to NWP 3
would also authorize minor dredging to
remove obstructions or sediments
deposited by the flood or storm.
Dredging under paragraph (iii) of this
NWP would be limited to a total of 50
cubic yards, and would be restricted to
the extent needed to remove the
obstruction. Any dredging requirements
in excess of 50 cubic yards may be
authorized by another general permit or
an individual permit. The dredging
provision of this NWP may not be used
solely to provide a source of fill material
needed for the restoration of uplands,
nor may it be used to artificially deepen
a waterbody, channelize a stream, or be
used in place of a maintenance dredging
operation.
It is anticipated that this NWP would
only result in minimal impacts to the
aquatic environment, since the areas
that would be rebuilt were not waters of
the United States prior to the damaging
event, and the restoration of such lands
should not result in a loss of aquatic
habitat. Indeed, the actual restoration of
the upland itself does not require a
permit, because it is exempt under
Section 404 (f). The determination of the
extent of waters of the United States
should consider the contours of the
affected upland area prior to the
damaging event, and should not be
based upon the current damaged
condition of the property (i.e., the
damaged area does not immediately
become a water of the United States). As
explained above, the applicant must
provide evidence of the previous
contours of the damaged land in order
to qualify for this permit.
No upper acreage limit has been
proposed for this activity, and
mitigation will typically not be required
for the work, since the restoration of
uplands should not result in a loss of
waters of the United States. While there
is no upper limit, it is anticipated that
most permittees would seek to restore
small areas, such as the frontage of
individual lots adjacent to streams or
lakes in developed areas. The
notification requirement would allow
the Corps to alert other Federal and
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State agencies, as necessary, such as
State flood plain regulatory agencies. In
addition, The Corps believes that the
potential impacts from the removal of
accumulated sediments near existing
structures will be minimal. However, if
these areas are inhabited by submerged
aquatic vegetation or other important
aquatic organisms, the PCN requirement
of this NWP will allow the District
Engineer the opportunity to assert
discretionary authority over the activity.
In addition, regional or case-by-case
special conditions such as time-of-year
restrictions can be placed on specific
activities or geographic areas.
The Corps would only authorize those
upland restoration projects that would
be constructed in such a way as to result
in no more than minimal impacts to the
aquatic environment. Furthermore, this
NWP would restrict the upland
restoration to the extent that existed
prior to the damage; however, the Corps
would not require the applicant to make
such full upland restoration. For
example, should the applicant propose
to restore only a part of the damaged
upland, or to restore part of the
damaged area in a way more beneficial
to the aquatic environment,, such as a
wedand restoration, the Corps will
usually agree to the plan. Any proposals
to restore only a part of the damaged
upland must originate with the
applicant, and will not be required by
the Corps.
The restoration of wetland areas and
riparian zones damaged by storms may
not be authorized with this NWP,
however, these activities may be
authorized by NWP 27. With regard to
the use of this proposed permit with
other NWPs (i.e., "stacking"), the Corps
would not allow the use of this permit
in combination with NWP 18 or NWP
19. The Corps is soliciting comments on
the requirements and methods needed
to demonstrate the prior extent of the
uplands to be restored, the practicability
of the proposed 50 cubic yard dredging
limit, the 12 month time limit for
notification to the Corps, the 2 year time
limit established for the work to
commence.
7. Outfall Structures and Maintenance
A commenter recommended
modification of NWP 35 to authorize
maintenance dredging activities at
utility facilities for three types of areas:
barge canals and slips, dam headworks
at hydropower plants, and intake and
outfall structures and canals. Most of
these activities require individual
permits because they occur in navigable
waters of the United States or below
headwater streams. Currently, NWP 35
authorizes maintenance dredging of
marina basins, boat slips, and access
channels to marinas and boat slips.
The removal of debris from the
headworks of hydroelectric dams does
not require a Section 10 permit because
it does not constitute work in navigable
waters of the United States. A Section
404 permit is not required for this
activity as long as there is no associated
discharge of dredged or fill material. In
these situations, most debris is removed
with equipment or specially designed
vessels that do not cause discharges of
dredged or fill material into waters of
the United States. Therefore, we are not
proposing an NWP for this activity.
Another commenter requested that
die terms and limitations of NWP 31 be
expanded to include maintenance of
intakes to water supply facilities.
The Corps is proposing to modify
NWP .7 to audiorize the removal of
accumulated sediments from outfalls,
intakes, and associated canals. All of the
original terms and limitations of NWP 7
are retained in the proposed
modification. Outfalls, intakes, and
associated canals accumulate sediment
and require periodic excavation or
maintenance dredging to restore flow
capacities to die facility. Most of the
dredging is required in the vicinity of
intake structures and their canals
because circulation patterns result in
the deposition of sediments in these
areas. These sediments must be
removed to ensure tiiat the facility has
an adequate supply of water for its
operations. Water discharged from
outfall structures usually has little or no
sediment load; maintenance dredging is
not often required in these areas. In
situations where an utility company's
intake or outfall canal is used by barges
to travel to the utility facility, die
proposed modification will allow
continued access by diose barges
because the removal of accumulated
sediments will return die intake or
outfall canal to its designed dimensions,
and restore its navigable capacity.
Currendy, utility companies must
obtain individual permits for diis work,
since die amount of dredged material
usually exceeds the limitation of 25
cubic yards specified in NWP 19. This
NWP audiorizes the removal of
accumulated sediment from intake and
outfall structures in small
impoundments, such as 'water treatment
facilities, irrigation ponds, and farm
ponds. This NWP will not authorize die
construction of new canals or die
removal of sediments from die
headworks of large dams, flood control
facilities, or large reservoirs. These
types of work may be audiorized by
individual permits, regional general
permits, or other NWPs, such as NWPs
19 or 31.
A PCN will be required so that Corps
districts can review these activities on a
case-by-case basis to ensure diat die
adverse effects are minimal. The amount
of sediment dredged or excavated must
be die minimum necessary to restore die
facility to original design capacities and
configurations.
The Corps believes that die potential
impacts from the removal of
accumulated sediments from intake and
outfall structures and associated canals
will be minimal. If die canals are
inhabited by submerged aquatic
vegetation or odier important aquatic
organisms, die PCN requirement of this
NWP will allow district engineers die
opportunity to assert discretionary
audiority. In addition, regional or case-
by-case special conditions such as time-
of-year restrictions can be placed on
specific activities or geographic areas.
12. Utility Activities
In response to die December 13, 1996,
Federal Register notice, die Corps
received several comments requesting
development of NWPs for activities
associated widi utility lines, such as die
construction of electric and pumping
substations, foundations for electric
power line towers, and permanent
access roads. NWP 26 has been used to
audiorize diese activities in die past.
From May 1, 1997, dirough December
31, 1997, tiiere were 34 utility-related
activities audiorized by NWP 26. Since
die commenters were proposing
activities direcdy related to utility lines,
we believe it is more appropriate to
modify NWP 12 to audiorize these
activities, instead of developing separate
NWPs for each type of activity.
One commenter proposed an NWP
that would authorize die installation
and maintenance of overhead electric
transmission lines and associated
facilities, such as substations and
permanent access roads. NWPs 26 and
33 have been used to construct access
roads associated widi utility lines, but
NWP 33 audiorizes only temporary
access roads. Permanent access roads
are necessary for routine and emergency
maintenance of overhead electric
transmission lines. NWP 26 has also
been used to authorize die construction
of foundations for transmission towers
and poles. Another commenter has used
NWP 26 to build electric substations
and construct access roads for electric
power transmission lines, and
recommended eidier issuance of a new
NWP or modification of NWP 12 to
audiorize diese activities. The
commenter stated that NWPs 14 and 33
typically cannot be used to audiorize
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36059
the construction of permanent access
roads for utility lines, because of the
acreage limitations of NWP 14 and the
fact that NWP 33 authorizes temporary,
not permanent, access roads.
A commenter recommended
including electric utility activities in the
NWP program, similar to the utility
activities presently authorized by the
Florida Department of Environmental
Protection and regional water
management districts in the State of
Florida.
Currently, NWP 12 authorizes only
utility line backfill and bedding
activities. All of the original terms and
limitations of NWP 12 have been
retained, with some clarification, in the
proposed modification. The proposed
modification of NWP 12 will include
the following activities commonly
associated with utility lines: electric and
pumping substations, foundations for
electric utility line towers, and
permanent access roads. Modifying
NWP 12 to expand coverage of the
installation and maintenance of utility
lines and attendant features is a more
effective means of authorizing these
activities than developing^everal new
NWPs. It will streamline the
authorization process for utility line
activities that have minimal adverse
effects on the environment.
Paragraph (i) of the proposed
modification authorizes the same
activities as the NWP 12 published in
the December 13, 1996, Federal Register
notice. In the proposed modification, we
are including clarification of the
circumstances where a pipeline carrying
gaseous or liquid substances over
navigable waters of the United States
requires a permit from the United States
Coast Guard pursuant to Section 9 of the
Rivers and Harbors Act. We are also
proposing to include language in this
paragraph that states that repair of
utility lines is authorized by this NWP.
The impacts due to repair are often less
than those of installation, because in
most cases only certain sections of a
utility line require repair, and these
areas are restored upon completion of
the work.
Paragraph (ii) authorizes discharges
associated with the construction or
expansion of electric or pumping
substations, provided the discharge does
not cause the loss of more than 1 acre
of non-Section 10 waters of the United
States (wetlands that are contiguous to
Section 10 waters are also excluded).
The Corps is proposing to require a PCN
if the construction or expansion of the
substation will cause the loss of more
than Va acre of waters of the United
States.
Paragraph (iii) authorizes discharges
for foundations of utility line towers,
poles, and anchors. To minimize
adverse effects, separate foundations for
each tower leg will be required, when
practicable, and the foundations must
be the minimum size necessary. In most
cases, the construction of foundations
for overhead utility lines will have
minimal adverse effects on the aquatic
environment because these utility lines
are constructed in a cleared right-of-way
(which will remain as a wetland) and
the foundations will permanently affect
only a small proportion of the cleared
wetland area. In the right-of-way, most
of the vegetation will be allowed to
grow back as either emergent or scrub-
shrub wetland.
Paragraph (iv) would authorize
discharges for the construction and
maintenance of permanent access roads,
which would be used to maintain the
utility line, especially in emergency
situations. Access roads used only for
construction can be authorized by NWP
33, but restoration of waters of the
United States is required after
completion of the work. We expect that
most access roads used for maintenance
will be the same as the access roads
used for construction. Access roads
must be the minimum width necessary,
be designed to minimize the amount of
waters of the United States adversely
affected by the roads, and cannot restrict
surface and subsurface flows. We are
proposing a maximum acreage loss
limitation of 1 acre of waters of the
United States. Access roads must follow
preconstruction contours and elevations
to the extent practicable. The Corps is
proposing to require notification where
more than 500 linear feet of access road
is constructed above preconstruction
grades in waters of the United States.
Corduroy or geotextile/gravel access
roads constructed at grade are likely to
be the most common access roads
constructed. We anticipate that most of
these access roads would be 10 to 15
feet wide. We believe that permanent
access roads are necessary because they
allow efficient emergency maintenance
of utility lines. Temporary access roads
become overgrown with vegetation,
delaying access for emergency repairs.
Such delays endanger citizens serviced
by the utility line. With proper
construction techniques, access roads
can be constructed and maintained with
minimal adverse effects on the aquatic
environment. Surface water flows will
not be substantially affected by access
roads constructed at-grade. Some
components of access roads will have to
be constructed above grade, particularly
to construct culverted stream crossings.
Such crossings will have minimal
adverse effects, provided the culverts
are adequately sized.
In the proposed modification of NWP
12, we are including the definition of
"loss" of waters of the United States as
defined in other NWPs. The installation
of subaqueous utility lines in waters of
the United States should not be
considered as resulting in a loss of
waters of the United States if the area
impacted by the installation of the
utility line is the minimum necessary
and preconstruction contours and
elevations are restored after
construction. The use of timber mats in
utility line construction results in
temporary impacts to waters of the
United States, and typically reduce
impacts to wetlands caused by heavy
equipment. Therefore, the use of timber
mats should not be included as a source
of permanent loss when determining
impacts to waters of the United States,
provided they are removed upon
completion of construction. Once the
timber mats are removed, wetland
conditions typically return within a
short time period.
We are also including language in the
proposed modification of NWP 12 to
clarify that the installation of utility
lines in navigable waters of the United
States without any associated discharge
of dredged or fill material (i.e., Section
10 of the Rivers and Harbors Act is the
only applicable law) is authorized by
this NWP. All of the original
notification provisions of NWP 12 will
remain the same, with additional
notification provisions for discharges for
electric or pumping substations that
result in the loss of more than Vs acre
of non-tidal waters of the United States
and for permanent access roads
constructed in waters of the United
States above preconstruction grades for
a distance of more than 500 feet. We are
revising item "c" in the notification
section to clarify that the exclusion of
overhead utility lines that are
constructed for a distance of more than
500 linear feet in waters of the United
States from the notification requirement.
This NWP does not authorize the
construction of new power plants, water
treatment plants, or reservoirs.
Discharges in Section 10 waters for the
construction of electric or pumping
substations or access roads is not
authorized. Pipelines used to transport
gases and liquids over navigable waters
of the United States require a Section 9
permit from the United States Coast
Guard and are not authorized by this
NWP. Division and district engineers
will still be allowed the use of
discretionary authority when very
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sensitive/unique areas may be adversely
affected by these activities.
14. Linear Transportation Crossings
One commenter recommended an
NWP to authorize the construction,
extension, and expansion of railroad
tracks, including railroad beds. NWP 26
has been often used to authorize this
type of work. Another commenter
recommended an NWP to authorize
minor road improvements and
maintenance projects and the placement
of drainage structures in headwater
streams.
The Corps is proposing to modify
NWP 14 to authorize discharges of
dredged and fill material into non-tidal
waters of the United States, excluding
non-tidal wetlands contiguous to tidal
waters, for the construction, expansion,
and improvement of public linear
transportation crossings for public
projects such as roads, railroads and
runways. For private linear
transportation crossings and for public
linear transportation crossings in tidal
waters or non-tidal wetlands contiguous
to tidal waters, such as a controlled-
access road to an industrial site, or the
construction of a private-*ead leading to
a residence, the original terms and
limitations of NWP 14 will be retained.
The Corps is proposing two options
for the acreage limit for public linear
transportation crossings in paragraph
(a). We are requesting comments on
whether the acreage limit for public
linear transportation crossing should be
1 acre or 2 acres. For public linear
transportation crossings, notification
will be required for discharges in
special aquatic sites, including
wetlands, or for all discharges that
result in the loss of greater than Vb acre
of waters of the United States. For
private road crossings, the discharge
cannot result in the loss of more than Vs
acre of waters of the United States, or
extend for a distance of more than 200
feet in waters of the United States.
Notification will be required for all
discharges in special aquatic sites,
including wetlands, for private road
crossings. Between May 1, 1997, and
December 31, 1997, NWP 26 was used
to authorize 953 transportation projects.
These transportation projects resulted in
the loss of approximately 278 acres of
wetlands, and 56,442 linear feet of
stream bed, with 1,036 acres of
compensatory mitigation provided by
permittees.
Features of the proposed work that are
integral to the linear transportation
project, such as interchanges,
stormwater detention basins, rail spurs
or water quality enhancement measures,
may also be authorized by this permit.
This proposed permit may not be used
to authorize non-linear features
commonly associated with
transportation projects, such as vehicle
maintenance or storage buildings,
parking lots, train stations, or hangars.
For large transportation projects that
would have many potential crossings of
jurisdictional areas, the Corps districts
will determine on a case-by-case basis
whether this permit may be used, or
whether an individual permit may be
required for the work. Corps districts
may also exercise discretionary
authority over any project that, in the
determination of the District Engineer,
has the potential to result in more than
minimal impact on the aquatic
environment. The definition of the term
"single and complete project" for linear
projects can be found at 33 CFR 330.2 (i).
The Corps is soliciting comments on
several issues related to this proposed
permit, including the acreage limit, and
the prohibition of the use of this permit
for non-linear features associated with
transportation projects.
27. Stream and Wetland Restoration
Activities
The Corps is proposing to modify
NWP 27 to add the restoration and
enhancement of streams to the wetland
and riparian enhancement authorized
by the existing NWP 27. The modified
permit would authorize projects that
would enhance, restore or create
structural habitat features, hydraulics,
and vegetation in altered and/or
degraded non-Section 10 streams and
non-tidal wetlands. Such activities
include, but are not limited to: the
removal of accumulated sediments, the
installation, removal and maintenance
of water control structures, the
installation of current deflectors, the
enhancement, restoration or creation of
riffle and pool stream structure, the
placement of in-stream habitat
structures, modifications of the stream
bed and/or banks to restore or create
stream meanders, the backfilling of
artificial channels and drainage ditches,
the removal of existing drainage
practices and structures, the
construction of small nesting islands,
the construction of open water areas,
and activities needed to re-establish
•vegetation, including plowing or discing
for seed bed preparation and
mechanized land-clearing to remove
undesirable vegetation. This NWP
applies to projects that would serve the
purpose of restoring and enhancing
"natural" stream hydrology, wetland
hydrology, vegetation, and function in
altered and degraded non-Section 10
streams and associated riparian areas,
and non-tidal wetlands.
This NWP cannot be used to authorize
activities for the conversion of natural
wetlands or streams to another aquatic
use, such as the impoundment of a
stream for waterfowl habitat, or the
conversion of a scrub-shrub wedand
into an herbaceous emergent wetland.
However, this permit may be used to
authorize the construction of projects
that would recreate similar habitat types
in a different location than the existing
wetlands, provided that the project
results in functional gains. For example,
a berm may be proposed to enhance and
enlarge an existing wetland, however,
the impoundment of water behind the
berm would replace an existing
emergent wetland area with open water,
and recreate a similar emergent wetland
at another location within the larger
wetland. This project may be authorized
by NWP 27, because it would not result
in a conversion of one wetland type to
a dissimilar wetland type.
No activities or discharges not
directly related to the restoration of
ecological values or aquatic functions
may be authorized by this permit.
The intent of this permit is to
facilitate the restoration of degraded or
altered streams and wetlands. The goals
of the proposed activities must be based
upon the enhancement, restoration or
creation of the characteristic ecological
conditions that existed, or may have
existed, in the stream or wetland prior
to disturbance, or to other wise improve
the aquatic functions of such areas. The
activities may include, but are not
limited to, the modification of the
hydraulics, vegetation, or physical
structure of the altered or degraded
stream or wetland. Notification to the
District Engineer would be required
only for those projects noted in
condition (iv) of the permit.
The use of this proposed permit with
other NWPs would require notification
to the District Engineer in accordance
with General Condition 15. Use of this
NWP with other NWPs may not be
restricted, provided there is a net gain
of aquatic habitat and/or aquatic
functions. For example, it is likely that
some projects considered under this
permit would require cofferdams to
temporarily dewater the project site, or
interim bank stabilization measures
during construction of channel
improvements. Because neidier of these
discharges are, in and of themselves,
directly related to the restoration of
aquatic habitat, they would require
separate authorizations, in these cases
NWP 33 and NWP 13, respectively.
Given the nature of the activities that
may be proposed for each project site,
the Corps will make a case-by-case
determination on the need for other
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36O61
authorizations during the review of the
project.
For activities that require notification,
the Corps, with input from other Federal
and State agencies, would evaluate each
project to determine whether the
proposed work would result in a net
increase in aquatic functions. Factors
such as temporal habitat loss, changes
in species composition, and other
aquatic functions would be examined in
the course of the evaluation. This permit
cannot be used to relocate an altered or
degraded stream, where the new stream
would have characteristics similar to the
old stream (i.e., substantial habitat
improvement would not result from the
work). In another example, this permit
would not be applicable to a project that
proposed to remove sediment from a
stream for the purpose of improving or
creating a navigation channel, because
the primary purpose of the work would
not be the improvement of aquatic
functions, although in some cases, some
habitat benefits could result from the
work. Similarly, this permit may not be
used to channelize, deepen or modify a
stream in order to facilitate land
drainage.
The Corps is soliciting"2bmments on
the types of activities that may be
authorized under this proposed permit,
and whether any additional conditions
(e.g., restricting the construction of the
projects to certain types of streams)
should be placed upon its use. The
Corps anticipates that the majority of
projects authorized by this permit
would involve habitat improvements on
small lengths of streams or in small
wetland areas; however, there is no
restriction on the scope of the projects
that can be authorized with this permit.
The Corps anticipates that this permit
will be used primarily by units of State
and local government, private ecological
restoration groups and individual
landowners.
40. Agricultural Activities
The Corps is proposing to modify
NWP 40 to authorize the discharge of
dredged or fill material into non-tidal
waters of the United States, including
non-tidal wetlands, for the purpose of
improving production on existing
agricultural lands. Between May 1,
1997, and December 31, 1997, NWP 26
was used to authorize 317 agricultural
projects. These projects resulted in the
loss of approximately 85 acres of
wetlands and 20,860 linear feet of
stream bed, with 151 acres of
compensatory mitigation provided by
the permittees. The proposed
modification to NWP 40 may be used to
authorize, in addition to the
construction of foundations and
building pads for farm buildings
currently authorized by NWP 40, the
installation or placement of drainage
tiles; construction of drainage ditches or
levees; mechanized land clearing, land
leveling, and similar activities.
Paragraph (a) of the proposed
modification of NWP 40 authorizes
discharges into waters of die United
States, provided the permittee has
obtained a minimal effect exemption
from NRCS and the activity does not
cause the loss of greater than 1 acre of
non-tidal wetlands and does not cause
the loss of greater than Va acre of playas,
prairie potholes, and vernal pools. The
minimal effect exemption must be
obtained in accordance with the
provisions of the Food Security Act (16
U.S.C. 3801 etseq.) and the National
Food Security Act Manual (NFS AM).
Paragraph (b) of the proposed
modification autinorizes discharges of
dredged or fill material into non-tidal
wetlands on agricultural lands provided
the discharge results in a loss of no
greater than 3 acres of non-tidal
wetlands and the permittee submits and
implements a compensatory mitigation
plan that fully offsets the wetlands loss.
The Corps is considering options for the
type of wetlands that should be
applicable to this activity and is seeking
comments on whether this proposed
modification should be for all non-tidal
wetlands, fanned wetlands only, or
frequently cropped wetlands only.
Fanned wetlands and frequently
cropped wetlands are those wetlands
which are already being manipulated to
some extent for agricultural production.
Non-tidal wetlands include fanned
wetlands and frequently cropped
wetlands in addition to those natural
wetland areas on agricultural land that
have not been previously manipulated
for agricultural production.
The Corps is also considering and
seeking comments on options to
establish acreage limits for these
activities. One option would be to
establish a sliding scale or indexing of
impact acreage limits for this NWP,
based on farm size. Another option is
using a simple upper impact acreage
limit (e.g., 3 acres). A sliding scale could
be based on the size of a farm,
percentage of wetlands, percentage of
farm, or other approaches. The
following table is a sample sliding scale
or indexing of impact acreage limits for
this NWP, based on farm size:
Farm Size
Less than 15 acres
15-25 acres
25-50 acres
50-100 acres
100-500 acres
Greater than 500 acres
Maximum
acreage
loss author-
ized for wet-
lands on
agricultural
lands
1A acre.
Vz acre.
% acre.
1 acre.
2 acres.
3 acres.
NRCS must approve the mitigation
plan if the permittee is a USDA program
participant or non-participant receiving
technical assistance. If the permittee is
a USDA non-participant and has not
had NRCS approve a mitigation plan,
the Corps must approve the mitigation
plan. Discharges into natural playas,
prairie potholes, or vernal pools are not
authorized under the terms of this
paragraph.
Paragraph (c) of the proposed
modification to NWP 40 authorizes
discharges into naturally vegetated
playas, prairie potholes, or vernal pools,
provided the discharge does not result
in the loss of greater than 1 acre of non-
tidal wetlands. The Corps is also
considering and seeking cpmments on
options to establish acreage limits for
these activities. One option would be to
establish a sliding scale or indexing of
impact acreage limits for this NWP,
based on farm size. Another option is
using a simple upper impact acreage
limit (e.g., 1 acre). A sliding scale could
be based on size of farm, percentage of
wetlands, percentage of farm, or other
approaches. The following table is a
sample sliding scale or indexing of
impact acreage limits for this NWP,
based on farm size:
Farm size
Less than 25 acres
25 — 100 acres
100 — 500 acres
Greater than 500 acres
Maximum
acreage
loss author-
ized for
playas, prai-
rie potholes,
and vernal
pools
1A acre.
Vz acre.
% acre.
1 acre.
The permittee must submit an NRCS- or
Corps-approved compensatory
mitigation plan to fully offset wetland
losses. The compensatory mitigation
plan must be approved by NRCS if the
permittee is a USDA program
participant or non-participant receiving
technical assistance. The Corps must
approve the mitigation plan if the
permittee is not a USDA program
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participant and has not had NRCS
approve a mitigation plan.
Paragraph (d) of the proposed
modification contains the original terms
of NWP 40. The acreage limit for this
paragraph is 1 acre of non-tidal
wetlands in agricultural production
prior to December 23, 1985. This NWP
does not authorize discharges into
playas, prairie potholes, and vernal
pools for the construction of building
pads or foundations for farm buildings.
In paragraph (e), the Corps is also
proposing to modify NWP 40 to
authorize the relocation of existing
serviceable drainage ditches and
previously substantially manipulated
intermittent and small perennial
streams on agricultural land. However,
the relocation of ditches and streams
authorized by this NWP does not
authorize reconfiguration of those
ditches or streams to increase the area
drained by the ditch or stream (i.e., by
widening or deepening the ditch/stream
beyond its original design dimensions
or configuration). This NWP does not
authorize work in streams other than
described above.
The Corps is proposing to require
notification for activitiesThat result in:
(1) the loss of greater than Vs acre of
non-tidal waters of the United States,
including playas, prairie potholes, or
vernal pools, or (2) filling or excavating
greater than 500 linear feet of drainage
ditches and previously substantially
modified intermittent and small
perennial streams. The appropriate
Federal and State agencies will be
notified for the loss of greater than 1
acre of non-tidal wetlands.
The aggregate acreage limit for
wetland impacts authorized by this
NWP as a result of the activities in
paragraphs (a), (b), (c), and (d) cannot
exceed 3 acres per farm for the duration
of this nationwide permit (i.e., until
reissuance or any revocation). NWPs are
generally reissued every five years.
When NWPs are reissued they may be
used again on the same farm to
authorize activities for Impacts not to
exceed the acreage thresholds
authorized in the reissuance. In
addition, for the purposes of increasing
agricultural production, this NWP
cannot be used with other NWPs to
exceed this 3-acre limit. The use of this
NWP prohibits any future use of
proposed NWP A, whether by the farm
owner/operator or if the property is
sold. For the purposes of this NWP a
single and complete project is defined
as a "farm" (i.e., the land unit under one
ownership, which is operated as a farm,
as reported to the Internal Revenue
Service). We are considering options for
and requesting comments on alternative
suggestions for this definition of a single
and complete project (such as "farm
tract" or "field"). The boundary
determination of the single and
complete project as defined for this
NWP will be as determined as of the
effective date of the publication of this
Federal Register notice.
The notification will allow district
engineers to review proposed activities
to ensure that no more than minimal
adverse effects to aquatic resources will
occur. District engineers can require
special conditions on a case-by-case
basis to ensure that the impacts are
minimal. District engineers can exercise
discretionary authority and require an
individual permit for those activities
that may have more than minimal
adverse effects on the aquatic
environment.
Other Suggested NWPs
In response to the December 13, 1996,
Federal Register notice, several
commenters recommended replacement
NWPs for activities which we believe do
not warrant the development of a NWP.
Some of these activities are in areas that
are not considered to be waters of the
United States. Other activities are
exempt from permit requirements of
Section 404 of the Clean Water Act and
Section 10 of the Rivers and Harbors
Act. These comments are addressed
below.
Maintenance of Landfill Surfaces:
One commenter proposed an NWP
authorizing the maintenance of landfill
surfaces. The Resource Conservation
and Recovery Act (RCRA) requires the
use of clay material to cap municipal
solid waste landfills, and grading of
such areas sufficient to prevent water
from ponding on the cap. As refuse in
a landfill decomposes and settles,
portions of the clay cap can subside,
creating ponded areas on the landfill
surface. Wetland species may colonize
these ponded areas. These depressions
increase the chance that water may
infiltrate through the clay cap and come
into contact with the refuse, which may
result in increased pollution of the air
and groundwater. To comply with the
RCRA, Clean Air Act, and Clean Water
Act, these depressions must be filled to
return the landfill cap to the designed
grade and prevent infiltration of water
into the landfill. The regular
maintenance of landfill caps prevents
leaching of contaminants into the
surrounding air, water, and soil.
The Corps believes that these ponded
areas on the landfill cap are not waters
of the United States, because landfill
caps are constructed from uplands and
require continuous maintenance. The
preamble to 33 CFR Part 328 in the
November 13, 1986, Federal Register
(51 FR 41217, Section 328.3) states that
"water filled depressions created in dry
land incidental to construction activity
* * *" are not considered waters of the
United States "* * * until the
construction or excavation operation is
abandoned and the resulting body of
water meets the definition of waters of
the United States." The landfill is not
abandoned because of the routine
maintenance required by law to keep
the landfill surface at the designed
grade. Since routine maintenance of
landfill surfaces does not require a
Section 404 permit, we will not be
developing an NWP for this activity.
Maintenance and Filling of Ditches
Adjacent to Roads and Railways: One
commenter proposed an NWP to
authorize maintenance of roadside
ditches constructed in tidal and non-
tidal waters of the United States to
collect and convey runoff from the road.
Another commenter proposed an NWP
to authorize discharges of dredged or fill
material to construct additional railroad
tracks, widen or protect railroad beds,
and drain water to prevent saturation of
the railroad bed. Saturation of the
railroad bed can cause settling of the
bed, requiring maintenance or
reconstruction to return the railroad bed
to the proper grade. Flat-bottom ditches
are constructed at the toe of the railroad
embankment (often in upland areas) to
convey runoff from the railway to
natural drainage courses. Roadside and
railway ditches commonly develop
wetland characteristics as a result of
fulfilling their purpose and must be
periodically cleaned out. At other times,
these drainage ditches may be filled to
widen the road or railroad bed. Work in
roadside or railroad ditches may or may
not require a permit from the Corps,
depending on the case-specific
circumstances of the ditch.
The maintenance of roadside or
railroad drainage ditches constructed in
uplands does not require a Section 404
permit since these ditches are not
waters of the United States, even though
they may support wetland vegetation.
The preamble to 33 CFR 328.3, as
published in the November 13, 1986,
issue of the Federal Register (51 FR
41217), states that "non-tidal drainage
or irrigation ditches excavated on dry
land" are generally not considered to be
waters of the United States. Filling these
ditches to widen the road or railroad
bed does not require a Section 404
permit.
If these roadside or railroad ditches
are constructed in waters of the United
States, the maintenance of these ditches
is exempt from Section 404 permit
requirements (see 33 CFR 323.4(a)(3)),
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36063
provided the ditch is restored to its
original dimensions and configuration.
However, the construction of these
ditches in waters of the United States
requires a Section 404 permit and may
be authorized by an individual permit,
an NWP or a regional general permit. A
Corps permit is required to widen the
road or railroad bed in these ditches
constructed in waters of the United
States, if the activity results in a
discharge of dredged or fill material into
waters of the United States or the
activity extends into navigable waters of
the United States. We are proposing to
modify NWP 14 to authorize such
activities, and other linear
transportation activities, in non-tidal
waters of the United States (wetlands
that are contiguous to tidal areas are
also excluded). Widening road or
railroad beds in tidal waters usually
requires an individual permit, but may
be authorized by an NWP, or an
applicable regional general permit. The
construction or maintenance of roadside
and railroad ditches in navigable waters
of the United States requires a Section
10 permit. Furthermore, the
maintenance of roadside ditches where
the proposal includes reconfiguration of
these ditches does not qualify for the
exemption at 33 CFR 323.4(a)(3).
However, we have proposed NWP F in
order to address this situation, provided
the drainage capacity of the ditch is not
increased.
Maintenance of Water Treatment
Facilities: One commenter requested an
activity-specific NWP for maintenance
of water treatment facilities, such as the
removal of material from constructed
settling lagoons and associated
constructed wetlands, maintenance and
de-watering of stock ponds for livestock,
and maintenance of recharge ponds for
water supplies.
Water treatment facilities constructed
in uplands do not require a Section 404
permit for maintenance activities. The
Corps does not generally consider
"[a]rtificial lakes or ponds created by
excavating and/or diking dry land to
collect and retain water and which are
used exclusively for such purposes as
stock watering, irrigation, settling
basins, or rice growing" to be waters of
the United States. (Refer to the preamble
to 33 CFR 328.3, as published in the
November 13, 1986, issue of the Federal
Register (51 FR 41217)).
To address some other issues relevant
to water quality, we are proposing NWP
C for the construction and maintenance
of stormwater management facilities,
modifying NWP 3 to authorize the
removal of sediments that accumulate in
the vicinity of structures, and modifying
NWP 7 to authorize removal of
accumulated sediments from outfall and
intake structures and associated canals.
Removal of sediments from detention
and settling basins constructed with a
Section 404 permit would be authorized
by the proposed NWP C as long as the
maintenance activity does not change
the use of the facility. In addition, some
of the activities cited above are covered
by existing NWPs, are exempt from
Clean Water Act regulation, or do not
require a Corps permit. Construction of
stock ponds is an exempt activity; thus,
the de-watering and maintenance of
stock ponds is exempt from 404 Section
permit requirements as long as the
activity is for water quality benefits and
does not enlarge the pond or change the
use to other than providing water for
livestock. Maintenance of recharge
ponds constructed in uplands does not
require a Section 404 permit, but the
maintenance of these ponds constructed
in waters of the United States may be
authorized by existing NWPs, such as
NWPs 3, 18, or 13, or proposed NWP C.
Therefore, these activities have not been
specifically included in the proposed
NWPs.
Mitigation Banks and the NWP
Program. One commenter recommended
that the replacement NWPs should
include language that identifies
mitigation banks as the preferred
method of providing compensatory
mitigation for impacts authorized by
these NWPs. The commenter believes
that placing such an emphasis on
mitigation banking will provide
incentive for the construction of more .
mitigation banks by increasing the
certainty that these banks will be used
by permittees to offset losses authorized
by these NWPs. This commenter also
recommended that the NWP program
formally adopt the "Federal Guidance
for the Establishment, Use, and
Operation of Mitigation Banks" (60 FR
58605-58614). The commenter also
recommended the development and
implementation of standard policies
pertaining to the establishment and use
of in lieu fee programs that matches the
federal mitigation bank guidance. The
commenter believes such guidance is
needed to monitor the funds paid by
permittees, monitor the number of acres
of wetlands restored as a result of
payment of those fees, provide
compensatory mitigation in advance of
authorized impacts, and require binding
agreements that will ensure that the
compensatory mitigation is successful.
The Corps disagrees that the proposed
replacement NWPs should stipulate
preference for mitigation banks as a
form of compensatory mitigation. In the
December 13, 1996, Federal Register
notice, the Corps did not direct districts
to require permittees to use mitigation
banks for offsetting wetland losses due
to NWP 26, but suggested that they
could be used, as could in lieu fee
programs and individual mitigation
projects, to provide compensatory
mitigation. Consolidated mitigation
methods (mitigation banks, in-lieu fees)
are often an efficient means of
compensating for impacts, and may
confer benefits to the aquatic
environment as well (see 61 FR 65892).
We recognize that consolidated
mitigation projects, such as mitigation
banks and in lieu fee programs, are more
practicable and successful because of
the planning and implementation efforts
typically expended on these projects by
their proponents. In contrast, many
individual efforts to create, restore, or
enhance wetlands to replace small
wetland impacts are often not successful
and do not provide many benefits to the
aquatic environment, partly because
they are not well planned or executed.
In addition, numerous small
compensatory mitigation efforts can be
expensive and time-consuming to
monitor.
Mitigation banks and in lieu fee
programs are not common throughout
the country. Therefore, it would be
impractical to require their use as a
preferred or sole means of providing
compensatory mitigation for impacts
authorized by the proposed replacement
NWPs. While in lieu fee programs are in
place in several districts, efforts
continue to ensure in lieu fee programs
will provide adequate compensatory
mitigation. District engineers have the
authority to approve the means by
which a particular permittee provides
appropriate compensatory mitigation.
Permittees should not be required to use
a particular mitigation method, just
because it is available. Permittees must
have the flexibility to propose
compensatory mitigation methods that
are within their means to accomplish.
To the extent appropriate, permittees
should consider use of approved
mitigation banks and other forms of
mitigation including in lieu fees.
District engineers will evaluate the
permittee's proposed mitigation for its
appropriateness and practicability as
indicated in the NWP mitigation
condition.
Expansion of Nationwide Permit 31. A
commenter requested that NWP 31 be
expanded to authorize other
maintenance activities relating to flood
control and maintenance of water
supply facilities, including removing
sediment from natural stream channels
without enlarging the channel,
removing vegetation from streams that
increases aggradation of the stream bed,
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stabilizing banks, removing aggraded
sediments, and cleaning sediment from
intake pipes that draw water from the
stream or groundwater. The commenter
stated that some of these activities did
not require a Section 404 permit prior
to the implementation of the excavation
rule and are not authorized by NWP 31
or 33 CFR 330.3.
NWP 31 authorizes discharges of
dredged or fill material for the
maintenance of existing flood control
facilities that were either previously
authorized by a Corps permit or 33 CFR
330.3 or constructed by the Corps and
transferred to a local sponsor for
operation and maintenance. In natural
stream channels, most of the activities
cited in the previous paragraph can be
authorized by NWP 31 provided those
channels are part of an authorized flood
control facility. One requirement of
NWP 31 is that the District Engineer
establish a baseline for maintenance.
The maintenance baseline can include
width at ordinary high water, channel
depth, and/or other parameters used to
quantify dimensions of a stream
channel. For example, the maintenance
baseline for a stream channel may a
particular bed elevation. When
sediments accumulate in the stream
channel, raising the elevation of the bed,
NWP 31 may be used to authorize the
removal of the aggraded sediments to
return the stream bed to the
maintenance baseline elevation, even if
the sediment supports wetland
vegetation. Bank stabilization work for
portions of the flood control project may
be authorized by NWP 13, regional
general permits, or an individual
permit. The removal of sediment from
water intake pipes cannot be authorized
by NWP 31. However, removal of
sediments from the vicinity of these
structures may be authorized by NWP
18, the proposed modifications to NWP
3, the proposed modification to NWP 7,
regional general permits, or individual
permits.
Discussion of Nationwide Permit
Conditions
General Conditions
The Corps is proposing to consolidate
all of the General Conditions and
Section 404 Only conditions into one
General Condition Section for the
NWPs. The reason for this consolidation
is that most of the Section 404 Only
conditions have applicability to
activities in Section 10 waters. Some of
the Section 404 Only conditions, such
as conditions 4, 5, 6, and 8, are
essentially always applicable to work in
navigable waters of the United States.
For example, 33 CFR 320.4(r) states that
mitigation is an important aspect of the
review and balancing process on many
Department of the Army permit
applications. The Corps policy at 33
CFR 320.4 (r) on mitigation applies to all
types of decisions, including Section 10
permits. Some of the Section 404 only
conditions still generally apply only to
Section 404 activities, but in an effort to
simplify the general conditions for the
NWPs, the Corps is proposing to
combine all conditions into one section.
This consolidation does not increase the
scope of analysis for determining if a
particular project qualifies for an NWP;
the District Engineer must still use
discretion to determine if a particular
condition applies to a particular
activity. We are proposing to modify the
opening language of Section 404 only
conditions 1, 2, 3, 4, 5, 7, and 8 to
"activity [or activities], including
structures and work in navigable waters
of the United States and discharges of
dredged or fill material," to reflect that
broader application. The three modified
conditions (general conditions 9 and 13
and Section 404 only condition 6) and
the modified Section 404 only
conditions would apply to all the
existing NWPs as well as the new NWPs
that are issued.
The following is a discussion of our
reasons for proposing changes to 6
existing NWP conditions and adding
one new NWP general condition. If an
existing NWP condition is not discussed
below, no changes to that condition are
proposed, other than those changes
cited in the previous paragraph.
9. Water Quality. We are proposing to
change the name of this condition from
"Water Quality Certification" to "Water
Quality" and modify this condition to
require, for NWPs 12, 14, 17, 18, 21, 32,
40, A, B, C, D, and E, a water quality
management plan, if it is not required as
part of the 401 certification. This
requirement only applies to those
projects for which a water quality
management plan would help keep the
adverse effects on the aquatic
environment minimal, such as
prevention of more than minimal
degradation of downstream water
quality by maintaining a vegetated
buffer adjacent to open water bodies
such as lakes and streams. The
requirement of implementation of a
water quality management plan is not
intended to apply to projects where the
impacts to the aquatic environment are
minimal, such as the construction of a
small road crossing to provide access to
an upland development where the
impacts to waters of the United States
regulated by the Corps (i.e., NWP 14 in
this example) are limited to a small
proportion of the project area. The
requirement for a water quality
management plan is also not intended to
increase the scope of analysis of the
Corps review. The water quality
management plan must implement
methods and technologies to reduce
direct and/or indirect degradation of
water quality as a result of the permitted
work. Practices such as vegetated
buffers adjacent to open waters,
sediment traps and barriers, sediment
detention basins and ponds, infiltration
trenches, and nutrient management ;
techniques can be used to reduce
degradation of water quality due to
adjacent land use.
13. Notification. We are proposing to
require notification to the District
Engineer for all of the proposed NWPs,
based on varying thresholds, generally
Vs of an acre of impact. Because the
Corps has added so many NWPs with a
PCN requirement, the PCN process must
be applied in a simple and consistent
manner. Therefore, for discharges
causing the loss of greater than 1 acre of
waters of the United States, the
notification will be sent to the
appropriate Federaland State agencies
in accordance with paragraph (e) of
General Condition 13. For other
activities requiring notification to the
District Engineer, the PCN will be
subject to Corps-only review. The PCN
will be subject to a 30-day review
period, from the date of receipt of a
complete PCN by the District Engineer.
Corps district personnel will utilize the
PCN to assess the environmental
impacts of the proposed work and can
recommend appropriate actions, such as
special conditions or compensatory
mitigation, to ensure that impacts are
minimal.
16. Subdivisions. The Corps is
including a condition in the proposed
NWPs similar to the "subdivision
clause" of NWP 26, which prohibited
the use of NWP 26 for real estate
subdivisions created after October 5,
1984, where new discharges of dredged
or fill material into waters of the United
States in said subdivision would cause
the upper acreage limit of NWP 26 to be
exceeded. The Corps is-proposing to
include a similar clause for NWPs A and
B. The purpose of this condition is to
prevent the division of property as a
means of getting around the acreage
limits of NWPs A and B. The
subdivision clause would state that the
cumulative upper limit for a subdivision
seeking authorization under NWP A
would be 3 acres for a single and
complete project, and that the
cumulative upper limit for subdivisions
.seeking to use NWP B would be 10 acres
for a single and complete. The term
"single and complete" means if, upon
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36065
authorization, any given project can be
constructed, independent of any
reliance on subsequent Corps of
Engineers authorization for additional
regulated activities (i.e., activities
following those under current
authorization consideration). In other
words, a project may be considered
single and complete if it has
independent utility.
19. Suitable material. The Corps is
proposing to modify this general
condition by inserting the words "* * *
used for construction or * * *"
between "material" and "discharged."
This change was made to ensure that
materials used for structures or work in
navigable waters of the United States are
made of suitable materials.
20. Mitigation. We are proposing to
delete the words "* * * 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."
from this condition. This condition will
be modified to require restoration,
creation, enhancement, or preservation
of aquatic resources to offset losses of
functions and values dueTo authorized
impacts. This condition also stresses the
importance of including upland or
wetland vegetated buffers adjacent to
open water areas as an important
component of any mitigation plan.
21. Spawning areas. The Corps is
proposing to add a sentence to this
condition to prohibit activities that fill
or excavate important spawning areas.
22. Management of Water Flows. We
are proposing to change the title of this
condition from "Obstruction of High
Flows" to "Management of Water
Flows" and modifying it to require that
permittees design their projects to
maintain preconstruction downstream
flow conditions. The permittee must, to
the extent practicable, maintain the flow
rates from the site as close as is feasible
to preconstruction levels to minimize
the potential for adverse effects to
aquatic organisms and sediment
transport in the stream. The removal of
vegetation, and the increase in the
percentage of impervious surfaces on a
project site can Increase runoff flows
from the site, which can result in
downcutting of stream beds and
degradation of aquatic habitat. This
condition also requires that projects be
designed to reduce upstream impacts
such as flooding or draining, unless the
primary purpose of the project is to
impound water or reestablish drainage.
Definitions
To provide for consistency in the
implementation of the proposed NWPs,
the Corps is proposing to include
definitions for some terms used in these
NWPs. The definitions are located in
Section E of this notice. The Corps is
seeking comments on these definitions.
Nationwide Permit 29 for Single Family
Housing
On July 15, 1996, a lawsuit was filed
by several organizations against the
Corps, challenging the issuance of NWP
29 under Section 404 of the Clean Water
Act (CWA). The plaintiffs challenged
the issuance of NWP 29 because they
believe that: (1) the Corps violated the
CWA by issuing an NWP for activities
that result in more than minimal
adverse environmental effects; (2) the
Corps violated the CWA by issuing an
NWP for activities that are not similar
in nature; (3) the Corps violated the
procedural requirements of the Section
404(b)(l) Guidelines of the CWA; (4) the
Corps violated the Endangered Species
Act (ES A) by failing to consult with the
U.S. Fish and Wildlife Service (FWS)
and the National Marine Fisheries
Service (NMFS); (5) the Corps violated
the Fish and Wildlife Coordination Act
by failing to consult with the FWS and
NMFS; (6) the Corps violated the
National Environmental Policy Act
(NEPA) by failing to prepare an
Environmental Impact Statement (EIS);
and (7) the issuance of NWP 29 was
arbitrary, capricious, and an abuse of
discretion. After the Corps reissued
NWP 29 on December 13, 1996, a
supplemental complaint was filed by
the plaintiffs challenging the reissuance
of NWP 29.
On April 30, 1998, a court order was
issued by the United States District
Court, District of Alaska, remanding the
Secretary of the Army to consider
excluding high value waters from NWP
29, consider the use of lower acreage
limits for NWP 29, and to set forth those
considerations in an amended
environmental assessment (EA). The
court determined that the EA issued on
December 10, 1996, inadequately
addressed the exclusion of high value
waters and lower acreage limits for
NWP 29. Pending the Secretary of the
Army's consideration of these issues,
the court enjoined the Corps from
accepting any preconstruction
notifications for NWP 29 after June 30,
1998, unless the court orders otherwise.
The court did not address the other
issues raised by the plaintiffs because
actions undertaken by the Corps as a
result of the remand may have
significant impacts on the resolution of
the other arguments. It should be noted
that the Corps is already undergoing
ESA consultation for NWP 29, which
should be concluded this summer.
NWP 29 authorizes single family
housing activities that have minimal
adverse effects, both individually and
cumulatively, on the aquatic
environment. For this NWP, the Corps
has several mechanisms to protect high
value waters and wetlands. All activities
authorized under NWP 29 require
preconstruction notification to the
Corps. The preconstruction notification
allows district engineers to review each
proposed activity to determine if it will
result in minimal adverse
environmental effects, and if necessary,
take measures such as adding special
conditions to the NWP authorization to
further minimize the adverse effects of
the activity. Special conditions may
require compensatory mitigation to
offset losses of aquatic resource
functions and values. If the proposed
work will result in more than minimal
adverse environmental effects, then the
District Engineer will exercise
discretionary authority to require an
individual permit, with the requisite
alternatives analysis and public interest
review. District engineers can protect
high value waters and endangered
species by regionally conditioning NWP
29. Regional conditioning may exclude
the use of NWP 29 from certain waters,
such as non-tidal wetlands contiguous
to tidal waters, lower the acreage limit,
or exclude the use of NWP 29 in areas
where endangered species or their
critical habitat is known to occur. The
regional conditioning process is
discussed elsewhere in this notice.
Corps districts have been collecting
data on the use of NWP 29 since 1995.
Districts have been monitoring the use
of NWP 29 by tracking the number of
NWP 29 verifications, the number of
PCNs where discretionary authority was
exercised to require individual permits
for the proposed activity, the proposed
acreage of impacts, the authorized
acreage of impacts, and the acreage of
compensatory mitigation offered and
accepted for NWP 29 authorizations.
During Fiscal Year 1996, NWP 29 was
used 333 times to authorize the
construction of single family residences
and attendant features. Discretionary
authority was exercised for 9 PCNs to
review the proposed work under the
individual permit process. During 1996,
applicants proposed to fill 101.8 acres of
non-tidal waters of the United States,
but were authorized to fill only 62.7
acres. The acreage of compensatory
mitigation offered and accepted during
this time period was 2.3 acres. The
average loss of waters of the United
States per NWP 29 authorization was
0.19 acres.
During Fiscal Year 1997, NWP 29 was
used 188 times. The Corps asserted
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discretionary authority and required
individual permit review for two
requests for NWP 29 authorization.
During this time period, applicants
proposed to fill 30.5 acres of non-tidal
waters of the United States, but were
authorized to fill 28.1 acres of waters of
the United States. The acreage of
compensatory mitigation offered and
accepted during this time period was
11.3 acres. During 1997, the average loss
of waters of the United States per NWP
29 authorization was 0.15 acres.
Corps districts are also monitoring
cumulative impacts to ensure
compliance with the CWA. Corps
districts generally monitor regulated
activities on a watershed basis to ensure
that the activities authorized by NWP 29
and other Corps permits do not result in
more than minimal cumulative adverse
effects on the aquatic environment in a
particular watershed. Division engineers
can revoke NWP 29 in high value
aquatic environments or in specific
geographic areas (e.g., watersheds), if
they believe that the use of NWP 29 in
these areas will result in more than
minimal individual and/or cumulative
adverse environmental effects to the
aquatic environment. •""•"
In accordance with the court order,
we have prepared a revised EA for NWP
29. The revised EA includes a Section
404(b)(l) Guidelines compliance review
and a Finding of No Significant Impact
(FONSI). The revised EA also discusses
how high value waters are protected
under the NWP and the consideration of
lower acreage limits for NWP 29. Copies
of the revised EA and FONSI are
available at the office of the Chief of
Engineers, at each District office, and on
the Corps home page at http://
www.usace.army.mil/inet/functions/
cw/cecwo/reg/. Based on these analyses,
the Corps has determined that the
issuance of NWP 29 complies with the
requirements for issuance under general
permit authority.
During the comment period for the
proposed reissuance of NWP 29, the
Corps considered different acreage
limits for this NWP. Several
commenters recommended that the
acreage limit be reduced to Vio acre. A
few other commenters recommended an
acreage limit of V* acre. As discussed
previously in this notice, the average
acreage impact authorized by NWP 29
was 0.19 acre and 0.15 acre during fiscal
years 1996 and 1997, respectively. The
average acreage impact requested by
applicants was 0.31 acre in 1996 and
0.16 acre in 1997. During their review
of PCNs for NWP 29 authorization,
district engineers required additional
avoidance and minimization to ensure
that the authorized impacts were
minimal. Although NWP 29 has an
acreage limit of Vz acre, few projects
were authorized with that amount of
impact. District engineers require
avoidance and minimization during the
PCN process to ensure minimal adverse
environmental impacts due to the work.
A higher acreage limit, although it may
be rarely used, provides district
engineers with the flexibility to
authorize projects that have minimal
adverse effects under NWP 29, even
though they may adversely affect a
somewhat larger area of low-value
wetlands. As a result, the Corps
considered decreasing the acreage limit
of this NWP and determined that lower
acreage limits are not necessary in terms
of environmental effects or the workload
that would be required to process
requests for higher acreage impacts
through the individual permit process.
To provide further assurance that
NWP 29 authorizes only single family
housing activities that have minimal
adverse environmental effects, the Corps
is now proposing to modify the acreage
limit for NWP 29 to V* acre. The public
is invited to provide comments on the
proposed modification to the acreage
limit for NWP 29 within 60 days of the
date of this notice. The Corps is not
requesting comments on the other terms
of NWP 29. In the interim, the Corps is
suspending NWP 29 for activities that
result in the loss of greater than 1A acre
of non-tidal waters of the United States.
It is unlikely that the suspension or
modification of NWP 29 will result in a
substantial burden on the regulated
public, since the average NWP 29
authorization in 1996 and 1997 resulted
in the loss of 0.19 acre of non-tidal
waters of the United States. Most small
landowners can design their single
family residences to comply with this
new acreage limit for NWP 29. If not,
then they can request authorization
through the individual permit process
or by a regional general permit, if
available.
Therefore, from the date of this notice
until the Corps has determined whether
or not to modify NWP 29, NWP 29 can
be used to authorize discharges of
dredged or fill material to construct
single family housing, including
attendant features, provided the
discharge does not result in the loss of
greater than Vi acre of non-tidal waters
of the United States, including non-tidal
wetlands. All other terms and
limitations for NWP 29, as published in
the December 13, 1996, issue of the
Federal Register, remain in effect.
Discharges for single family housing
activities that result in the loss of greater
than Vi acre of non-tidal waters of the
United States, including non-tidal
wetlands, will be processed either under
the individual permit process or by
regional general permits. For
information purposes, the text of the
proposed modification of NWP 29 is as
follows:
29. Single-Family Housing.
Discharges of dredged or fill material
into non-tidal waters of the United
States, including non-tidal wetlands for
the construction or expansion of a
single-family home and attendant
features (such as a garage, driveway,
storage shed, and/or septic field) for an
individual permittee provided that the
activity meets all of the following
criteria:
a. The discharge does not cause the
loss of more than l/4 acre of non-tidal
waters of the United States, including
non-tidal wetlands;
b. The permittee notifies the District
Engineer in accordance with the
"Notification" general condition;
c. The permittee has taken all
practicable actions to minimize the on-
site and off-site impacts of the
discharge. For example, the location of
the home may need to be adjusted on-
site to avoid flooding of adjacent
property owners;
d. The discharge is part of a single
and complete project; furthermore, that
for any subdivision created on or after
November 22, 1991, the discharges
authorized under this NWP may not
exceed an aggregate total loss of waters
of the United States of V4 acre for the
entire subdivision;
e. An individual may use this NWP
only for a single-family home for a
personal residence;
f. This NWP may be used only once
per parcel;
g. This NWP may'not be used in
conjunction with NWP 14, NWP 18, or
NWP 26, for any parcel; and,
h. Sufficient vegetated buffers must be
maintained adjacent to all open water
bodies, streams, etc., to preclude water
quality degradation due to erosion and
sedimentation.
For the purposes of this NWP, the
acreage of loss of waters of the United
States includes the filled area
previously permitted, the proposed
filled area, and any other waters of the
United States that are adversely affected
by 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 V*
acre. This NWP authorizes activities
only by individuals; for this purpose,
the term "individual" refers to a natural
person and/or a married couple, but
does not include a corporation,
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36067
partnership, or similar entity. For the
purposes of this NWP, a parcel of land
is defined as "the entire contiguous
quantity of land in possession of,
recorded as property of, or owned (in
any form of ownership, including land
owned as a partner, corporation, joint
tenant, etc.) by the same individual
(and/or that individual's spouse), and
comprises not only the area of wetlands
sought to be filled, but also all land
contiguous to those wetlands, owned by
the individual (and/or that individual's
spouse) in any form of ownership".
(Sections 10 and 404)
Authority
Accordingly, we are proposing to
issue new NWPs, modify existing
NWPs, and add conditions and to add
NWP definitions under the authority of
Section 404(e) of the Clean Water Act
(33 U.S.C. 1344) and Section 10 of the
Rivers and Harbors Act of 1899 (33
U.S.C. 401 etseq.).
Dated: June 23, 1998.
Approved:
Russell L. Fuhrman,
Major General, U.S. Army, Director of Civil
Works. .,~
Nationwide Permits, Conditions, Further
Information, and Definitions
A. Index of Nationwide Permits, Conditions,
Further Information, and Definitions
Proposed New Nationwide Permits
A. Residential, Commercial, and Institutional
Activities
B. Master Planned Development Activities
C. Stormwater Management Facilities
D. Passive Recreational Facilities
E'. Mining Activities
F. Reshaping Existing Drainage Ditches
Nationwide Permits Proposed To Be
Modified
3. Maintenance
7. Outfall Structures and Maintenance
12. Utility Activities
14. Linear Transportation Crossings
27. Stream and Wetland Restoration
Activities
40. Agricultural Activities
Nationwide Permit Conditions
General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality*
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification*
14. Compliance Certification
15, Multiple Use of Nationwide Permits
16. Subdivisions*
17. Water Supply Intakes
18. Shellfish Production
19. Suitable Material*
20. Mitigation*
21. Spawning Areas*
22. Management of Water Flows*
23. Adverse Effects from Impoundments
24. Waterfowl Breeding Areas
25. Removal of Temporary Fills
(* Indicates conditions proposed to be
changed.)
Further Information
Definitions
1. Aquatic Bench
2. Best Management Practices
3. Channelized stream
4. Contiguous wetland
5. Drainage ditch
6. Ephemeral stream
7. Farm
8. Intermittent stream
9. Loss of waters of the United States
10. Noncontiguous wetland
11. Non-tidal wetland
12. Perennial stream
13. Riffle and pool complexes
14. Stormwater management
15. Stormwater management facilities
16. Tidal wetland
17. Vegetated shallows
18. Waterbody
B. Nationwide Permits
A. Residential, Commercial, and
Institutional Activities
Discharges into non-tidal waters of
the United States, excluding non-tidal
wetlands contiguous to tidal waters,
associated with residential, commercial,
and institutional development activities.
Residential developments (multiple and
single unit development for other than
the personal residence of the permittee),
commercial developments (such as
retail stores, industrial parks,
restaurants, business parks, shopping
centers, and commercial recreational
activities) and institutional
developments (such as schools, fire
stations, government office buildings,
judicial buildings, public works
buildings, libraries, hospitals and places
of worship), are authorized, and may
include activities such as: grading,
rechannelization, expansion of an
existing development, building pads,
soil erosion and sediment control
measures, and infrastructure such as
utilities, roads, driveways, sidewalks,
and recreation activities associated with
the development, including activities
such as playgrounds, ball fields, golf
courses, nature trails, etc., provided that
the activity meets all of the following
criteria:
a. The discharge does not cause the
loss of greater than 3 acres of non-tidal
waters of the United States, using an
index of impact acreage as follows*:
Parcel size
Less lhan 5 acres
5-10 acres
10-15 acres
15-100 acres
Greater than 100 acres
Maximum
acreage
loss author-
ized
1/4 acre.
1/2 acre.
1 acre.
2 acres.
3 acres.
b. For discharges causing the loss of
greater than 1/3 acre of non-tidal waters
of the United States, including non-tidal
wetlands, the permittee notifies the
District Engineer in accordance with the
"Notification" general condition;
c. For activities that involve
excavation and/or filling of open waters,
including perennial or intermittent
waterways, below the ordinary high
water mark, the permittee notifies the
District Engineer in accordance with the
"Notification" general condition;
d. For discharges in special aquatic
sites, including wetlands, the
notification must also include a
delineation of affected special aquatic
sites, including wetlands;
e. The discharge is part of a single and
complete project;
f. The permittee must avoid and
minimize discharges into waters of the
United States at the project site to the
maximum extent practicable, and the
notification must include a written
statement to the District Engineer
detailing compliance with this
condition, i.e., why the discharge must
occur in waters of the United States and
avoidance or additional minimization
cannot be achieved;
g. For discharges requiring
notification the permittee must submit a
mitigation proposal that will offset the
loss to waters of the United States;
h. Whenever any other NWP is used
in conjunction with this NWP, the
combined total acres of impacts to
waters of the United States cannot
exceed 3 acres and any combined total
acreage exceeding Vs acre requires that
the permittee notify the District
Engineer in accordance with the
"Notification" general condition; and
i. Any work authorized with this
permit must not cause more than minor
changes to the flow characteristics of
any stream, Or measurably degrade
water quality (See General Conditions 9
and 22). (Sections 10 and 404)
*Note: For the purposes of the proposed
NWP, a discussion of acreage limit options is
provided in the preamble.
B. Master Planned Development
Activities
Discharges into non-tidal waters of
the United States, excluding non-tidal
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Federal Register/Vol. 63, No. 126/Wednesday, July 1, 1998/Notices
wetlands contiguous to tidal waters,
•associated with a comprehensively
planned development which may
include a combination of, but is not
limited to, the following: residential
housing, office parks, retail stores,
restaurants, playgrounds, ball fields,
golf courses, ponds, impoundments,
community green space, parks, trails,
soil erosion and sediment control
measures, sewage and/or water
treatment facilities, storm water
management facilities, and
infrastructure such as utilities, roads,
driveways, and sidewalks, provided that
the activity meets all of the following
criteria:
a. The discharge does not cause the
loss of greater than 10 acres of non-tidal
waters of the United States, using an
index of impact acreage as follows*:
Parcel size
100-200 acres
200-300 acres
300-500 acres
Greater than 500 acres
Maximum
acreage
loss author-
ized
3 acres
1 0 acres
b. The permittee notifies the District
Engineer in accordance with the
"Notification" general condition;
c. For discharges in all waters of the
United States, including wetlands, the
notification must also include a
delineation of affected waters and/or
wetlands;
d. The notification will include a
wetland assessment utilizing a
functional assessment approach
approved by the District Engineer;
e. The discharge is part of a single and
complete project; however the activity
may proceed in phases;
f. The permittee must avoid and
minimize discharges into waters of the
United States at the project site to the
maximum extent practicable, and the
notification must include a written
statement to the District Engineer
detailing compliance with this
condition (i.e., why the discharge must
occur in waters of the United States and
why avoidance or additional
minimization cannot be achieved);
g. The notification must include a
mitigation proposal that will offset the
loss to waters of the United States;
h. Deed restrictions, protective
covenants, land trusts, or other means of
conservation and preservation will be
required for all waters of the United
States, including wetlands, on the
project site, including riparian buffers
and/or vegetated buffers adjacent to
open water, as well as all existing,
enhanced, restored, or created wetland
areas; and
i. Whenever any other NWP is used in
conjunction with this NWP, the.
combined total acres of impacts to
waters of the United States cannot
exceed 10 acres.
Master Planned Development: The
intent of defining Master Planned
Development is to distinguish these
activities from those that would be
authorized under NWP A. Unlike NWP
A, this NWP is limited to authorizing
those activities that are mixed-use in
nature. Master planned developments
are designed, constructed, and managed
to integrate multiple uses in a manner
that conserves and enhances the
functions and values of the water
resources on the project site. NWP B is
intended to be consistent with the
increasing nationwide efforts by
counties and local communities across
the country to encourage mixed-use
development and to motivate land use
planning alternatives that incorporate
consideration of the environment. This
NWP is designed to match up with the
efforts of local communities to achieve
these goals by encouraging the
development of environmentally
responsible, multiple-use communities
and building upon the incentives
currently provided by State and local
governments. Such master planned
developments provide communities
with an opportunity to address a variety
of concerns, including protecting
sensitive natural areas, consolidating
infrastructure and maximizing the
delivery of urban services. The project
may consist of cluster developments
surrounded by a substantial amount of
open or green space, including
vegetated buffers to waters of the United
States. All remaining waters of the
United States on the project site,
including wetlands and riparian areas
that are restored, enhanced, or created
as compensatory mitigation for impacts
authorized by this NWP, as well as
vegetated buffers, will be set aside and
preserved through deed restrictions,
protected covenants, land trusts, or
other legal means, to protect these areas
and maintain water quality and aquatic
resource values. (Sections 10 and 404)
*Note: For the purposes of the proposed
NWP, a discussion of acreage limit options is
provided in the preamble.
C. Stormwater Management Facilities
Discharges of dredged or fill material
into non-Section 10 waters of the United
States, including wetlands, for the
construction and maintenance of
stormwater management facilities,
including activities for the excavation
for stormwater ponds/facilities,
detention, and retention basins,
installation and maintenance of water
control structures, outfall structures and
emergency spillways; and die
maintenance dredging of existing
stormwater management ponds/
facilities, detention and retention basins
provided that the activity meets all of
the following criteria:
a. The discharge or excavation for the
construction of new stormwater
management facilities does not cause
the loss of greater than 2 acres of non-
tidal wetlands;
b. For discharges or excavation for the
construction of new stormwater
management facilities causing the loss
of greater than Va acre of non-tidal
waters of the United States, including
wetlands, or for the maintenance of
existing stormwater management
facilities causing the loss of greater than
1 acre of non-tidal waters of the United
States, or for the loss of greater than 500
linear feet of intermittent stream bed,
the permittee notifies the District
Engineer in accordance with the
"Notification" general condition. In
addition the notification must include:
(1) A maintenance plan, which is in
accordance with State and local
requirements, if any;
(2) For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected areas; and
(3) For discharges involving
construction of stormwater management
facilities, the notification must include
a mitigation proposal diat will offset the
loss of waters of the United States. In
appropriate circumstances,
compensatory mitigation can be
provided by the use of bioengineering
techniques and aquatic benches within
the stormwater management facility.
Compensatory mitigation will not be
allowed in designated facility
maintenance areas. Where the size of
the facility allows for the construction
of sediment forebays, such designs will
be used to the maximum extent
practicable to enhance water quality and
to minimize the maintenance area of the
facility. Future maintenance in
constructed areas will not require
mitigation provided that maintenance is
accomplished in designated
maintenance areas and not within
compensatory mitigation areas.
c. The stormwater management
facility must be designed using Best
Management Practices and watershed
protection techniques (e.g., vegetated
buffers, siting considerations to
minimize adverse effects to aquatic
resources, bioengineering methods
incorporated into the facility design to
benefit water quality and minimize
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36069
adverse effects to aquatic resources from
storm flows especially downstream of
the facility, as appropriate) that provide
for long term aquatic protection and
enhancement, to the maximum extent
practicable;
d. Maintenance excavation will be in
accordance with an approved
maintenance plan and will not exceed
the original contours of the facility as
approved and constructed; and
e. The discharge is part of a single and
complete project.
f. This permit does'riot authorize the
discharge of dredged or fill material for
the construction of new stormwater
management facilities in perennial
streams. (Section 404)
D. Passive Recreational Facilities.
Discharges of dredged or fill material
into non-tidal waters of the United
States, excluding non-tidal wetlands
contiguous to tidal waters, for the
construction or expansion of passive
recreational facilities, provided that the
activity meets all of the following
criteria:
a. The discharge does not cause the
loss of greater than 1 acre of non-tidal
waters of the United States, including
non-tidal wetlands; -~~"
b. For discharges causing the loss of
greater than Vs acre of non-tidal waters
of the United States, or the loss of
greater than 500 linear feet of stream
bed, the permittee notifies the District
Engineer in accordance with the
"Notification" general condition;
c. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of affected special aquatic sites,
including wetlands; and
d. The discharge is part of a single
and complete project.
A passive recreational facility is
defined as a low-impact recreational
facility that is integrated into the natural
landscape and consists primarily of
open space that does not substantially
change preconstruction grades or
deviate from -natural landscape
contours. The primary function of
passive recreational facilities does not
include the use of motor vehicles,
buildings, or impervious surfaces.
Examples of passive recreational
facilities that may be authorized by this
NWP include: hiking trails, bike paths,
horse paths, nature centers, and
campgrounds (excluding trailer parks).
The construction or expansion of golf
courses and ski areas may be authorized
by this NWP, provided the golf course
or ski area does not substantially deviate
from natural landscape contours and is
designed to minimize adverse effects to
waters of the United States and riparian
areas through the use of such practices
as integrated pest management,
adequate stormwater management
facilities, vegetated buffers, reduced
fertilizer use, etc. The facility must have
an adequate water quality management
plan in accordance with General
Condition 9, such as a stormwater
management facility constructed in
uplands to ensure that the recreational
facility results in no substantial adverse
effects to water quality. This NWP also
authorizes support facilities, such as
maintenance and storage buildings,
office buildings, rental buildings, and
stables that are directly related to the
recreational activity. It does not
authorize other buildings, hotels,
restaurants, etc. 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, cannot exceed 1 acre. The
construction or expansion of playing
fields (e.g., baseball or football fields),
basketball and tennis courts, race tracks,
stadiums, and arenas is not authorized
by this NWP. (Section 404)
E. Mining Activities
Discharges of dredged or fill material
into non-tidal waters of the United
States, excluding non-tidal wetlands
contiguous to tidal waters, for aggregate
mining (i.e., sand, gravel, crushed and
broken stone) and hard rock metal/
mineral mining activities (i.e.,
extraction of metalliferous ores from
subsurface locations), including
exploration, excavation, dredging,
processing, stream relocation and/or
diversion, overburden disposal,
stockpiling, mechanized landclearing,
mined land reclamation, and support
activities, provided the discharge meets
all of the following criteria:
a. Lower perennial riverine systems:
Any discharges for excavation and
dredging activities associated with sand
and gravel mining in lower perennial
riverine systems as defined by the
Cowardin classification system for
aquatic habitats (areas that are defined
as special aquatic sites [40 CFR Subpart
E, 230.40 through 230.45] are excluded),
must:
1. not cause the loss of greater than 2
acres of waters of the United States;
2. not result in the excavation of fish
spawning areas and shellfish beds;
3. include necessary measures to
prevent increases in stream gradient and
water velocities, to prevent adverse
effects (e.g., head cutting, bank erosion)
on upstream and downstream channel
conditions;
4. not result in adverse affects on the
course, capacity, or condition of
navigable waters of the United States;
and
5. include measures to minimize
downstream turbidity;
b. Intermittent and ephemeral
streams: Any discharges for excavation,
dredging, processing, exploration,
trenching, stockpiling, and mined land
reclamation activities associated with
sand and gravel mining activities in
intermittent and ephemeral streams
(areas that are defined as special aquatic
sites [40 CFR Subpart E, 230.40 through
230.45] are excluded), must:
1. not cause the loss of greater than 1
acre of waters of the United States; and
2. include necessary measures to
prevent increases in stream gradient and
water velocities, to prevent adverse
effects (e.g., head cutting, bank erosion)
on upstream and downstream channel
conditions;
c. Intermittent and small perennial
stream relocations: Any discharges for
stream relocation/diversion activities
(i.e., mining may not occur in open
waters below the ordinary high water
mark; only stream relocation and
diversion are authorized) associated
with crushed or broken stone mining in
intermittent and small perennial
streams (areas'that are defined as special
aquatic sites [40 CFR Subpart E, 230.40
through 230.45] are excluded), must:
1. not cause the loss of greater than 1
acre of waters of the United States;
2. include necessary measures to
prevent increases in stream gradient and
water velocities and to prevent adverse
effects (e.g., head cutting, bank erosion)
on upstream and downstream channel
conditions; and
3. not result in the excavation offish
spawning areas and shellfish beds;
d. Isolated wetlands and wetlands
above the ordinary high watermark, in
non-Section 10 waters: Any discharges
for excavation, exploration, dredging,
processing, mechanized landclearing,
stockpiling, stream relocation/diversion,
on-site overburden disposal, and mined
land reclamation associated with
aggregate mining activities in isolated
wetlands and wetlands above the
ordinary high water mark in non-
Section 10 streams, must:
1. not cause the loss of greater than 2
acres of waters of the United States; and
2. be compensated for through
mitigation approved by the Corps;
e. Dry washes and arroyos: Any
discharges, including excavation,
associated with aggregate mining
activities in dry washes and arroyos,
must:
1. not cause the loss of greater than 2
acres of waters of the United States;
2. include necessary measures to
prevent increases in stream gradient and
water velocities and to prevent adverse
effects (e.g., head cutting, bank erosion)
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Federal Register/Vol. 63, No. 126/Wednesday, July 1, 1998/Notices
on upstream and downstream channel
conditions; and
3. include necessary measures to
prevent adverse water quality effects on
groundwater resources;
f. Intermittent and small perennial
stream relocations: Any discharges for
stream relocation/diversion activities
(i.e., mining may not occur in open
waters below the ordinary high water
mark; only stream relocation and
diversion are authorized) associated
with hard rock metal/mineral mining
activities in intermittent and small
perennial streams (areas that are defined
as special aquatic sites [40 CFR Subpart
E, 230.40 through 230.45] are excluded),
must:
1. not cause the loss of greater than 1
acre of waters of the United States;
2. include necessary measures to
prevent increases in stream gradient and
water velocities and to prevent adverse
effects (e.g., head cutting, bank erosion)
on upstream and downstream channel
conditions; and
3. not result in the excavation offish
spawning areas and shellfish beds;
g. Isolated wetlands and wetlands
above the ordinary high water mark, in
non-Section 10 waters: Any discharges
for excavation, exploration, dredging,
processing, mechanized landclearing,
stockpiling, stream relocation/diversion,
on-site overburden disposal, and mined
land reclamation associated with hard
rock metal/mineral mining activities in
isolated wetlands and wetlands above
the ordinary high water mark in non-
Section 10 streams, must:
1. not cause the loss of greater than 2
acres of waters of the United States; and
2. be compensated for through
mitigation approved by the Corps;
h. Dry washes and arroyos: Any
discharges, including excavation,
associated with hard rock metal/mineral
mining activities in dry washes and
arroyos, must:
1. not cause the loss of greater than 2
acres of waters of the United States;
2. include necessary measures to
prevent increases in stream gradient and
water velocities and to prevent adverse
effects (e.g., head cutting, bank erosion)
on upstream and downstream channel
conditions; and
3. include necessary measures to
prevent adverse water quality effects on
groundwater resources;
i. Support activities: Any discharges
for support activities associated with
aggregate mining and/or hard rock
metal/mineral mining activities,
including the construction of berms,
access and haul roads, rail lines, dikes,
road crossings, settling ponds and
settling basins, ditching, storm water
and surface water management, head
cutting prevention, sediment and
erosion controls, and mechanized land
clearing, must not cause the loss of more
than 1 acre of waters of the United
States, including wetlands. This acreage
limit does not include temporary
mining roads that are exempt under
Section 404(f). The limit of 1 acre of
impact for support activities will be in
addition to the acreage allowed for the
mining activities;
j. Single and complete project: The
discharges must be for a single and
complete project. Multiple mining
activity discharges into several
designated parcels of a mining project,
may be included together as long as the
acreage limit for each aquatic resource
type is not exceeded and the
combination of more than one aquatic
resource type does not exceed 2 acres.
The total maximum acreage of waters of
the United States adversely affected by
the mining activities combined with the
support activities will not exceed 3
acres (2 acres)*;
k. Notification: The permittee notifies
the District Engineer in accordance with
the "Notification" general condition.
The notification must include a
description of all waters of the United
States impacted by the project, and,
where required, a discussion of
measures to minimize or prevent
adverse effects (e.g., head cutting, bank
erosion, turbidity, water quality) to
waters of the United States, a
description of measures taken to meet
the criteria associated with the
discharge being permitted, and a
reclamation plan; and
1. Authorized activities associated
with hard rock/mineral mining may
include beneficiation and mineral
processing. This NWP does not
authorize hard rock/mineral mining in
Section 10 waters or any mining activity
in wetlands that are contiguous to tidal
waters. (Sections 10 and 404)
*Note: For the purposes of the proposed
. NWP, a discussion of acreage threshold
options being considered for NWP E is
provided in the preamble.
F. Reshaping Existing Drainage Ditches
Discharges of dredged or fill material
into non-Section 10 waters of the United
States to modify the cross-sectional
configuration of existing serviceable
drainage ditches constructed in non-
Section 10 waters of the United States.
No compensatory mitigation is required
if the work is designed to improve water
quality (e.g., by regrading the drainage
ditch with gentler slopes, which can
reduce erosion, increase growth of
vegetation, increase uptake of nutrients
and other substances by vegetation,
etc.). The reshaping of the ditch cannot
increase drainage beyond the original
project boundaries or expand the area
drained by the ditch as originally
designed (i.e., the capacity of the ditch
must be the same as originally designed
and it cannot drain additional wetlands
or other waters of the United States).
The permittee must notify the District
Engineer in accordance with the
"Notification" general condition, if
material excavated during ditch
reshaping is sidecast into waters of the
United States. This NWP does not apply
to reshaping drainage ditches
constructed in uplands, since these
areas are not waters of the United States,
or to the maintenance of existing
drainage ditches to their original
dimensions and configuration, which
does not require a Section 404 permit
(see 33 CFR 323.4 (a) (3)). This NWP does
not authorize the relocation of drainage
ditches constructed in waters of the
United States; the location of the
centerline of the reshaped drainage
ditch must be approximately the same
as the location of the centerline of the
original drainage ditch. This NWP does
not authorize the reshaping and
maintenance of drainage ditches in
navigable waters of the United States,
which requires a Section 10 permit.
This NWP does not authorize stream
channelization or stream relocation
projects. (Section 404)
3. Maintenance Activities related to:
(i) The repair, rehabilitation, or
replacement of any previously
authorized, currently serviceable,
structure, or fill, or of any currently
serviceable structure or fill authorized
by 33 CFR 330.3, provided that the
structure or fill is not to be put to uses
differing from those uses specified or
contemplated for it in the original
permit or the most recently authorized
modification, and the District Engineer
receives notification for all work other
than the replacement of a structure.
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
impacts 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 nationwide
permit authorizes the repair,
rehabilitation, or replacement of those
structures destroyed or damaged by
storms, floods, fire or other discrete
events, provided the repair.
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36071
rehabilitation, or replacement is
commenced, or is under contract to
commence, within two years of the date
of their destruction or damage. In cases
of catastrophic events, such as
hurricanes or tornadoes, this two-year
limit may be waived by the District
Engineer, provided the permittee can
demonstrate funding, contract, or other
similar delays. Maintenance dredging
and beach restoration are not authorized
by this nationwide permit.
(ii) Discharges of dredged or fill
material, including excavation, into any
waters of the United States to remove
accumulated sediments and debris in
the vicinity of existing structures (e.g.,
bridges, culverted road crossings, water
intake structures, etc.) and the
placement of new or additional rip rap
to protect the structure, provided the
permittee notifies the District Engineer
in accordance with the "Notification"
general condition. The removal of
sediment is limited to the minimum
necessary to restore the waterway in the
immediate vicinity of the structure to
the approximate dimensions that
existed when the structure was built,
but cannot extend furtherjhan 200 feet
in any direction from the structure. The
placement of rip rap must be the
minimum necessary to protect the
structure, or to ensure the safety of the
structure. This NWP does not authorize
new stream channelization or stream
relocation projects. All excavated
materials must be deposited and
retained in an upland area unless
otherwise specifically approved by the
District Engineer under separate
authorization. Any bank stabilization
measures require a separate
authorization from the District Engineer.
(iii) Discharges of dredged or fill
material, including excavation, into
waters of the United States for the
restoration of upland areas damaged by
a storm, flood or other discrete event,
and minor dredging to remove
obstructions in a waterbody adjacent to
the upland, where such work requires
activities in a regulated water of the
United States, provided that the District
Engineer receives notification within 12
months of the date of the damage,
subject to the following criteria;
a. The extent of the proposed
restoration must be justified by a recent
topographic survey, or other evidence of
the pre-existing conditions. The
restoration of the damaged areas cannot
exceed the contours, or ordinary high
water mark, that existed prior to the
damage. The District Engineer retains
die right to determine the extent of die
pre-existing conditions, and the extent
of any restoration work;
b. Minor dredging to remove
obstructions from the adjacent
waterbody is limited to 50 cubic yards
below the plane of the ordinary high
water mark, and is limited to the degree
needed to restore the pre-existing
bottom contours of the waterbody. The
dredging may not be done primarily to
obtain fill for any restoration activities;
c. For activities affecting greater tiian
Vb acre of waters of the United States,
die permittee notifies the District
Engineer in accordance widi the
"Notification" general condition;
d. The discharge of dredged or fill
material and all related work needed to
restore die upland is part of a single and
complete project;
e. This permit authorizes such work,
provided die District Engineer has been
notified as appropriate in accordance
with condition (3) within 12 months of
die date of the damage, and the work
has commenced, or is under contract to
commence, within 2 years of the date of
die damage;
f. This permit may not be used in
conjunction widi NWP 18 or NWP 19;
g. This NWP cannot be used to
channelize a stream, and any work
authorized must not cause more tiian
minor changes to die hydraulic flow
characteristics of die stream, increase
flooding, or measurably degrade water
quality (See General Conditions 9 and
22); and
h. This permit may not be used to
reclaim historic lands lost, over an
extended period of time, to normal
erosion processes. (Sections 10 and 404)
7. Outfall Structures and
Maintenance. Activities related to: (i)
Construction of outfall structures and
associated intake structures Where die
effluent from die outfall is audiorized,
conditionally audiorized, or specifically
exempted, or are otiierwise in
compliance widi regulations issued
under die National Pollutant Discharge
Elimination System program (Section
402 of die Clean Water Act), and (ii)
maintenance excavation, including
dredging, to remove accumulated
sediments blocking or restricting outfall
and intake structures, accumulated
sediments from small impoundments
associated with outfall and intake
structures, and accumulated sediments
from canals associated widi outfall and
intake structures, provided diat die
activity meets all of die following
criteria: a
a. The permittee notifies die District
Engineer in accordance widi die
"Notification" general condition;
b. The amount of excavated or
dredged material must be die minimum
necessary to restore die outfalls, intakes,
small impoundments, and canals to
original design capacities and design
configurations (i.e., depth and width);
c. The excavated or dredged material
is deposited and retained at an upland
site, unless odierwise approved by the
District Engineer under separate
authorization; and
d. Proper soil erosion and sediment
control measures are used to minimize
reentry of sediments into waters of die
United States.
The construction of intake structures
is not audiorized by diis NWP, unless
they are directly associated widi an
outfall structure. For maintenance
excavation and dredging to remove
accumulated sediments, die notification
must include information regarding die
original design capacities and
configurations of die facility. (Sections
10 and 404)
12. Utility Activities. Discharges of
dredged or fill material into waters of
die United States and/or structures in,
over, or under navigable waters of die
United States for die following utility
activities:
(i) Utility lines: The construction or
maintenance of utility lines, including
outfall and intake structures and die
associated excavation, backfill, or
bedding for die utility lines, provided
diere is no change in preconstruction
contours. A "utility line" is defined as
any pipe or pipeline for die
transportation of any gaseous, liquid,
liquefiable, or slurry substance, for any
purpose, and any cable, line, or wire for
die transmission for any purpose of
electrical energy, telephone, and
telegraph messages, and radio and
television communication (see Note 1,
below). Material resulting from trench
excavation may be temporarily sidecast
(up to three montiis) into waters of die
United States, provided tiiat die
material is not placed in such a manner
that it is dispersed by currents or odier
forces. The District Engineer may extend
die period of temporary side-casting not
to exceed a total of 180 days, where
appropriate. In wetlands, die top 6" to
12" of die trench should normally be
backfilled widi topsoilfrom die trench.
Furthermore, die trench cannot be
constructed in such a manner as to
drain waters of die United States (e.g.,
backfilling widi extensive gravel layers,
creating a french drain effect). Any
exposed slopes and stream banks must
be stabilized immediately upon
completion of die utility line crossing of
each waterbody. This NWP also
includes die repair of existing utility
lines.
(ii) Electric or pumping substations:
The construction, maintenance, or
expansion of an electric or pumping
substation, provided die discharge does
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not result in the loss of greater than 1
acre of non-Section 10 waters of the
United States.
(Hi) Foundations for overhead utility
line towers, poles, and anchors: The
construction or maintenance of
foundations for overhead utility lines,
provided the foundations are the
minimum size necessary and separate
footings for each tower leg (rather than
a larger single pad) are used where
feasible.
(iv) Access roads: The construction of
access roads for the construction and
maintenance of utility lines, including
overhead power lines, and substations is
authorized, provided the discharge does
not cause the loss of greater than 1 acre
of non-Section 10 waters of the United
States, excluding non-tidal waters
contiguous with Section 10 waters.
Access roads shall be the minimum
width necessary (see Note 2, below).
Access roads must be constructed so
that the length of the road minimizes
the adverse effects on waters of the
United States and at preconstruction
contours and elevations, or as near as
possible (e.g., at grade corduroy roads or
geotextile/gravel roads). Access roads
constructed above preconstruction
contours and elevations in waters of the
United States must be properly bridged
or culverted to maintain surface flows.
The term utility line does not include
activities which drain a water of the
United States, such as drainage tile or
french drains; however, it does apply to
pipes conveying drainage from another
area. For the purposes of this NWP, the
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,
excavation, or drainage as a result of the
project. However, the term "loss"
applies only to waters of the United
States permanently affected by filling, •
flooding, excavation, or drainage and
not to waters of the United States that
are temporarily affected by the work and
restored to preconstruction contours
and wetland conditions. Temporary
construction mats (e.g., timber, steel,
geotextile) used during construction and
removed upon completion of the work
are not included in the calculation of
permanent loss of waters of the United
States.
Mechanized landclearing necessary
for the installation and maintenance of
utility lines and the construction and
maintenance of electric and pumping
substations, foundations for overhead
utility lines, and access roads is
authorized, provided the cleared area is
kept to the minimum necessary and
preconstruction contours are
maintained as near as possible. The area
of waters of the United States that is
filled, excavated, or flooded must be
limited to the minimum necessary to
construct the utility line, substations,
foundations, and access roads. Excess
material must be removed to upland
areas immediately upon completion of
construction. This NWP may authorize
utility lines in or affecting navigable
waters of the United States, even if there
is no associated discharge of dredged or
fill material (See 33 CFR Part 322).
Construction of access roads or the
construction or expansion of electric or
pumping substations in navigable
waters of the United States is not
authorized by this NWP.
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
forested wetland for the right-of-way;
(b) A Section 10 permit is required;
(c) The utility line in waters of the
United States, excluding overhead lines,
exceeds 500 feet;
(d) The utility line is placed within a
jurisdictional area (i.e., a water of the
United States), and it runs parallel to a
stream bed that is within that
jurisdictional area;
(e) Discharges associated with the
construction of electric or pumping
substations that result in the loss of
greater than Vs acre of non-tidal waters
of the United States; or
(f) Permanent access roads
constructed above grade in waters of the
• United States for a distance of more
than 500 feet.
Note 1: Overhead utility lines constructed
over Section 10 waters and utility lines that
are routed in or under Section 10 •waters
without a discharge of dredged or fill
material require a Section 10 permit; except
for pipes or pipelines used to transport
gaseous, liquid, liquefiable, or slurry-
substances over navigable waters of the
United States, which are considered to be
bridges, not utility lines, and may require a
permit from the U.S. Coast Guard pursuant
to Section 9 of the River and Harbor Act of
1899. However, any discharges of dredged or
fill material associated with such pipelines
will require a Corps permit under Section
404.
Note 2: Access roads used for both
construction and maintenance may be
authorized, provided they meet the terms and •
conditions of this NWP. Access roads used
solely for construction of the utility line must
be removed upon completion of the work and
the area restored to preconstruction contours,
elevations, and wetland conditions.
Temporary access roads for construction may
be authorized by NWP 33. (Sections 10 and
404)
14. Linear Transportation Crossings.
Activities required for the construction,
expansion, modification or
improvement of linear transportation
crossings (e.g., highways, railways,
trails, airport runways, and taxiways) in
waters of the United States, including
wetlands, provided that the activity
meets the following criteria:
a. For public linear transportation
crossings, the discharge is limited to
non-tidal waters of the United States,
excluding non-tidal wetlands
contiguous to tidal waters, and does not
cause the loss of greater than 2 acres (1
acre)* of non-tidal waters of the United
States;
b. For private linear transportation
crossings in waters of the United States
or public linear transportation crossings
in tidal waters or in non-tidal wetlands
contiguous to tidal waters, the discharge
does not cause the loss of greater than
V3 acre of waters of the United States,
including wetlands, and the length of
the fill for the crossing in waters of the
United States is limited to 200 linear
feet;
c. The permittee notifies the District
Engineer in accordance with the
"Notification" general condition for
discharges into special aquatic sites,
including wetlands, or that cause the
loss of greater than Vs acre of waters of
the United States;
d. For public linear transportation
crossings, the notification must include
a mitigation proposal that will offset the
loss of waters of the United States;
e. For discharges in special aquatic
sites, including wetlands, the
notification must include a delineation
of the affected special aquatic sites;
• f. The width of the fill is limited to
the minimum necessary for the crossing;
g. This NWP cannot be used to
channelize a stream, and any work
authorized must not cause more than
minor changes to the hydraulic flow
characteristics of the stream, increase
flooding, or measurably degrade water
quality (See General Conditions 9 and
22); and
h. The crossing is part of a single and
complete project for crossing a water of
the United States.
Some discharges for crossings may be
eligible for an exemption from the need
for a Section 404 permit (see 33 CFR
323.4). (Sections 10 and 404)
*Note: For the purposes of this proposed
modification to NWP 14, a discussion of
acreage threshold options being considered
for NWP 14 is provided in the preamble.
27. Stream and Wetland Restoration
Activities. Activities in waters of the
United States associated with the
restoration and enhancement of former
non-tidal wetlands and riparian areas,
the enhancement of degraded wetlands
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36073
and riparian areas, the creation of
wetlands and riparian areas, and the
restoration and enhancement of non-
Section 10 streams and open water
areas; (i) on non-Federal public lands
and private lands, in accordance with
the terms and conditions of a binding
wetland enhancement, restoration or
creation agreement between the
landowner and the U.S. Fish and
Wildlife Service or the Natural
Resources Conservation Service (NRCS)
or voluntary wetland restoration,
enhancement, and creation 'actions
documented by the NRCS pursuant to
NRCS regulations; or (ii) on any Federal
land; or (iii) on reclaimed surface coal
mined lands, in accordance with a
Surface Mining Control and
Reclamation Act permit issued by the
Office of Surface Mining or the
applicable State agency. (The future
reversion does not apply to streams or
wetlands created, restored or enhanced
as mitigation for the mining impacts,
nor naturally due to hydrologic or
topographic features, nor for a
mitigation bank.); or (iv) on any public
or private land, provided the permittee
notifies the District Engineer in
accordance with the "Notification"
general condition.
Such activities include, but are not
limited to, the removal of accumulated
sediments, the installation, removal and
maintenance of small water control
structures, dikes and berms; the
installation of current deflectors; the
enhancement, restoration, or creation of
riffle and pool stream structure; the
placement of in-stream habitat
structures; modifications of the stream
bed and/or banks to restore or create
stream meanders; the backfilling of
artificial channels and drainage ditches;
the removal of existing drainage
structures; the construction of small
nesting islands; the construction of open
water areas; activities needed to
reestablish vegetation, including
plowing or discing for seed bed
preparation; mechanized land-clearing
to remove undesirable vegetation; and
other related activities. This NWP
cannot be used to authorize activities for
the conversion of a stream to another
aquatic use, such as the creation of an
impoundment for waterfowl habitat.
This NWP cannot be used to channelize
a stream. This NWP does not authorize
the conversion of natural wetlands to
another aquatic use, such as creation of
waterfowl impoundments where a
forested wetland previously existed.
However, this NWP may be used to
relocate aquatic habitat types on the
project site, provided there are net gains
in aquatic resource functions and
values. For example, this NWP may
authorize the creation of an open water
impoundment in an emergent wetland,
provided the emergent wetland is
replaced by creating that wetland type
in the adjacent uplands.
.Reversion. For enhancement,
restoration and creation projects
conducted under paragraphs (ii) and
(iv), this NWP does not authorize any
future discharge of dredged or fill
material associated with the reversion of
the area to its prior condition. In such
cases a separate permit at that time
would be required for any reversion. For
restoration, enhancement and creation
projects conducted under paragraphs (i)
and (iii), this NWP also authorizes any
future discharge of dredged or fill
material associated with die reversion of
the area to its documented prior
condition and use (i.e., prior to the
restoration, enhancement, or creation
activities) within five years after
expiration of a limited term wetland
restoration or creation agreement or
permit, even if the discharge occurs
after this NWP expires. The five year
reversion limit does not apply to
agreements without time limits reached
under paragraph (i). The prior condition
will be documented in the original
agreement or permit, and the
determination of return to prior
conditions will be made by the Federal
agency or appropriate State agency
executing the agreement or permit. Prior
to any reversion activity the permittee
or the appropriate Federal or State
agency must notify the District Engineer
and include the documentation of the
prior condition. Once an area has
reverted back to its prior physical
condition, it will be subject to whatever
die Corps regulatory requirements will
be at that future date. Because projects
that would be authorized by this permit
are designed to enhance the aquatic
environment, mitigation will not be
required for the work. (Sections 10 and
404)
40. Agricultural Activities. Discharges
of dredged or fill material into non-tidal
waters of the United States, including
non-tidal wetlands, for the purpose of
improving agricultural production and
construction of building pads for farm
buildings. Activities authorized include
installation, placement, or construction
of drainage tiles, ditches, or levees;
mechanized land clearing, land leveling,
and similar activities, provided:
a. The Natural Resources
Conservation Service (NRCS) has made
a written notification based on an NRCS
certified wetland determination that die
activity qualifies for a minimal effect
exemption in accordance with the
provisions of the Food Security Act (16
U.S.C. 3801 etseq.) and the National
Food Security Act Manual (NFSAM)
and the discharge does not cause a loss
of greater dian 1 acre of non-tidal
wetlands and no greater than Vb acre of
playas, prairie potholes, or vernal pools;
b. The discharge does not cause a loss
of greater than 3 acres of non-tidal
wetlands on a farm, using an index of
impact acreage as follows:
Farm Size
Less than 15 acres
15—25 acres
25—50 acres
50—100 acres
100—500 acres
Greater than 500 acres
Maximum
acreage
loss author-
ized for wet-
lands on a
farm
1A acre.
V4 acre.
3/4. acre.
1 acre.
2 acres.
3 acres.
and die permittee submits an NRCS (for
USDA program participants and non-
participants) or Corps (for USDA non-
participants only) approved mitigation
plan fully offsetting wetland losses;
c. The discharge does not cause the
loss of greater than 1 acre of naturally
vegetated playas, prairie podioles, or
vernal pools, using an index of impact
acreage as follows:
Farm size
Less than 25 acres
25—100 acres
100—500 acres
Greater than 500 acres
Maximum
acreage
loss author-
ized for
playas, prai-
rie potholes,
and vernal
pools
1A acre.
Vz acre.
% acre.
1 acre.
and die permittee submits an NRCS (for
USDA program participants and non-
participants) or Corps (for USDA non-
participants only) approved mitigation
plan fully offsetting wetland losses;
d. For construction of building pads
for farm buildings, die discharge does
not cause the loss of greater tiian 1 acre
of wetlands (not to include playas,
prairie podioles, and vernal pools) diat
were in agricultural production prior to
December 23, 1985; or
e. Any activity in odier waters of die
United States is limited to the relocation
of existing serviceable drainage ditches
and previously substantially
manipulated intermittent and small
perennial streams.
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 diat are
adversely affected by flooding,
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excavation or drainage as a result of the
project. Also, authorized activities
involving excavation or drainage cannot
have the effect of adversely impacting
jurisdictional areas through flooding,
draining, or restricting the flow and
circulation of waters of the United
States, including wetlands, beyond the
acreage permitted. The acreage limits for
the above activities to improve
agriculture production are a cumulative
limit not to exceed each limit above nor
exceed a total of 3 acres per farm for the
duration of this nationwide permit (i.e.,
until reissuance or any revocation).
When this NWP is reissued it may be
used again on the same farm to
authorize activities for impacts not to
exceed the acreage thresholds
authorized in the reissuance. (The term
"farm" refers to a land unit under one
ownership operated as a farm as
reported to the Internal Revenue
Service.) This NWP may not be used in
conjunction with any other NWP to
exceed the acreage limits listed in (a),
(b), (c) and (d) above for the purpose of
increasing acreage for agriculture
production. Regulated discharges
associated with the mitigation are
authorized and not calcuTSted into the
overall acreage figure. Work in waters of
the United States not authorized by the
above provisions, may be authorized by
other NWPs (e.g., NWP 3—maintenance,
NWP 13—bank stabilization, and NWP
27—wetland restoration).
Notification: The permittee must
notify the District Engineer in
accordance with the "Notification"
general condition for the loss of: (1)
Greater than Va acre of non-tidal
wetlands, or (2) greater than 500 linear
feet of drainage ditches and previously
substantially manipulated intermittent
and small perennial streams. The
appropriate Federal and State agencies
will be notified for the loss of greater
than 1 acre of non-tidal wetlands, in
accordance with paragraph (e) of
General Condition 13. The notification
must also include any past use of this
NWP on the farm. For discharges in
special aquatic sites, including
wetlands, the notification must include
a delineation of the affected area.
This NWP does not affect, or
otherwise regulate, discharges
associated with agricultural activities
when the discharge qualifies for an
exemption under Section 404 of the
Clean Water Act (CWA) (33 CFR Part
323.4) even though a minimal effect/
mitigation determination may be
required by the NRCS. (Section 404)
Note: For the purposes of this proposed
modification to NWP 40, a discussion of
acreage limit options, the types of -waters
affected in paragraph (b), and the definition
of single and complete project, is provided in
the preamble.
C. Nationwide Permit 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 tiian a minimal adverse effect on
navigation.
2. Proper Maintenance. Any structure
or fill authorized shall be properly
maintained, including maintenance to
ensure public safety.
3. Soil Erosion and Sediment
Controls. Appropriate soil erosion and
sediment controls must be used and
maintained in effective operating
condition during construction, and all
exposed soil and other fills, as well as
any work below the ordinary high water
mark or high tide line, must be
permanently stabilized at the earliest
practicable date.
4. Aquatic Life Movements. No
activity may substantially disrupt the
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 hi 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. In certain States and
tribal lands an individual 401 water
quality certification must be obtained or
waived (See 33 CFR 330.4(c)). For NWPs
12, 14, 17, 18, 21, 32, 40, A, B, C, D, and
E where die State or tribal 401
certification (either generically or •
individually) does not require/approve a
water quality management plan, the
permittee must include design criteria
and techniques that provide for
protection of aquatic resources. The
project must include a method for storm
water management that minimizes
degradation of the downstream aquatic
system, including water quality. To the
maximum extent practicable, a
vegetated buffer zone (including
wetlands, uplands, or both) adjacent to
the river, stream, or other open
waterbody must be established and
maintained, if the project occurs in die
vicinity of such an open waterbody. The
Corps district will determine the proper
width of the buffer and in which cases
it will be required.
10. Coastal Zone Management. In
certain States, an individual State
coastal zone management consistency
concurrence must be obtained or waived
(see Section 330.4(d)).
11. Endangered Species.
(a) No activity is authorized under •
any NWP which is likely to jeopardize
the continued existence of a threatened
or endangered species or a species
proposed for such designation, as
identified under the Federal Endangered
Species Act, 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 diat the
activity is authorized.
(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
witii "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 die U.S. Fish
and Wildlife Service and National
Marine Fisheries Service or their world
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36075
wide web pages at http://www.fws.gov/
~r9endspp/endspp.html and http://
kingfish.spp.nmfs.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 the prospective
permittee has reason to believe may be
eligible for listing on the National
Register of Historic Places, and shall not
begin the activity until notified by the
District Engineer that the requirements
of the National Historic Preservation Act
have been satisfied and that the activity
is authorized. Information on the
location and existence of historic
resources can be obtained from the State
Historic Preservation Office and the
National Register of Historic Places (see
33 CFR 330.4(g)).
13. Notification. ^
(a) Timing: Where required by the
terms of the NWP, the prospective
permittee must notify the District
Engineer with a Pre-Construction
Notification (PCN) as early as possible
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 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
in33CFR330.5(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) For NWPs 12, 14, 18, 21, 29, 34,
38, A, B, C, D, and F, the PCN must also
include a delineation of affected special
aquatic sites, including wetlands,
vegetated shallows, (e.g., submerged
aquatic vegetation, seagrass beds), and
riffle and pool complexes (see paragraph
(5) For NWP 7— Outfall Structures
and Maintenance, the PCN must include
information regarding the original
design capacities and configurations of
those areas of the facility where
maintenance dredging or excavation is
proposed.
(6) For NWP 12— Utility Activities,
where the proposed utility line is
constructed or installed in navigable
waters of the United States (i.e., Section
10 waters), a copy of the PCN must be
sent to the National Oceanic
Atmospheric Administration, National
Ocean Service, for charting the utility
line to protect navigation.
(7) For NWP 21— Surface Coal Mining
Activities, the PCN must include an
OSM or State approved mitigation plan.
(8) For NWP 29— Single-Family
Housing, the PCN must also include:
(i) Any past use of this NWP by the
individual permittee and/or the
permittee's spouse;
(ii) A statement that the single-family
housing activity is for a personal
residence of the permittee;
(iii) A description of the entire parcel,
including its size, and a delineation of
wetlands. For the purpose of this NWP,
parcels of land measuring 0.5 acre or
less will not require a formal on-site
delineation. However, the applicant
shall provide an indication of where the
wetlands are and the amount of
wetlands that exists on the property. For
parcels greater than 0.5 acre in size, a
formal wetland delineation must be
prepared in accordance with the current
method required by the Corps. (See
paragraph 13(f));
(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;
(9) 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.
(10) 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.
(11) For NWPs A and B, the PCN must
also include a written statement to the
District Engineer detailing why the
discharge must occur in waters of the
United States and additional avoidance
or minimization cannot be achieved.
(12) For NWP B—Master Planned
Development Activities, the PCN must
also include:
(i) a wetland assessment utilizing a
functional assessment approach
approved by the District Engineer;
(ii) a mitigation proposal that will
offset the loss of waters of the United
States; and
(iii) evidence of deed restrictions,
protective covenants, land trusts, or
other means of conservation and
preservation for vegetated buffers (both
wetland and/or upland) to open water
and any existing wetlands, as well as
any wetlands restored, enhanced, or
created as part of the project.
(13) For NWP C-Stormwater
Management Facilities, the PCN must
include, for the construction of
stormwater management facilities, a
mitigation proposal to offset losses of
waters of the United States.
(14) For NWPs E-Mining Activities,
the PCN must include a description of
all waters of the United States impacted
by the project and a reclamation plan.
(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
containing the requisite information
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
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Federal Register/Vol. 63, No. 126 / Wednesday, July 1, 1998/Notices
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 on the aquatic
environment are minimal, the District
Engineer will notify the permittee and
include any conditions the District
Engineer 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 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 die 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.
For NWPs A, B, C, E, and 40, where
the loss of waters of United States is
greater than 1 acre, and for NWPs 14,
21, 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 die 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. For NWP 40, where
the activity results in the loss of greater
than Vs acre of playas, prairie potholes,
or vernal pools, the District Engineer
will, upon receipt of notification,
provide immediately, a copy of the
notification to the appropriate office of
the U.S. Fish and Wildlife 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 diat they intend to provide
substantive, site-specific comments. If
so contacted by an agency, the District
Engineer will wait an additional 10
calendar days before making a decision
on the notification. The District
Engineer will fully consider agency
comments received within the specified
time frame, but will provide no
response to die resource agency. The
District Engineer will indicate in the
administrative record associated with
each notification that die resource
agencies' concerns were considered.
Applicants are encouraged to provide
the Corps multiple copies of
notifications to expedite agency
notification.
(f) Wetlands Delineations: Wetland
delineations must be prepared in
accordance widi the current mediod
required by the Corps. For NWP 29 see
paragraph (b)(6)(iii) for parcels less tiian
0.5 acres in size. The permittee may ask
die Corps to delineate die special
aquatic site. There may be some delay
if die Corps does the delineation.
Furthermore, die 30-day period will not
start until die wetland delineation has
been completed and submitted to die
Corps, where appropriate.
(g) Mitigation: Factors that the District
Engineer will consider when
determining die acceptability of
appropriate and practicable mitigation
necessary to offset all impacts that are
more than minimal include, but are not
limited to:
(i) To be practicable, die mitigation
must be available and capable of being
done considering costs, existing
technology, and logistics in light of die
overall project purposes;
(ii) To die extent appropriate,
permittees should consider mitigation
banking and odier forms of mitigation
including contributions to wedand trust
funds, "in lieu fees" to non-profit land
restoration and stewardship
organizations, State or county natural
resource management agencies, where
such fees contribute to die restoration,
creation, replacement, enhancement, or
preservation of wetlands. Furthermore,
examples of mitigation diat may be
appropriate and practicable include but
are not limited to: reducing die size of
die project; establishing wetland or
upland buffer zones to protect aquatic
resource values; and replacing the loss
of aquatic resource values by creating,
restoring, enhancing, or preserving
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 diat
would occur in order to meet die
acreage limits of some of die NWPs (e.g.,
for NWP 14, 0.5 acre of wetlands cannot
be created to change a 0.75-acre loss of
wetlands to a 0.25 acre loss; however,
0.5 created acres can be used to reduce
the impacts of a 0.3-acre loss.).
14. Compliance Certification. Every
permittee who has received a
Nationwide permit verification from die
Corps will submit a signed certification
regarding die completed work and any
required mitigation. The certification
will be forwarded by the Corps with die
audiorization letter and will include: a.
A statement diat the authorized work
was done in accordance widi the Corps
audiorization, including any general or
specific conditions; b. A statement diat
any required mitigation was completed
in accordance with the permit
conditions; c. The signature of die
permittee certifying the completion of
die work and mitigation.
15. Multiple Use of Nationwide
Permits. In any case where any NWP
number 12 dirough 40 and any NWP A
dirough F is combined widi any other
NWP number 12 dirough 40 and NWP
A dirough F, as part of a single and
complete project, die permittee must
notify die District Engineer in
accordance widi paragraphs a, b, and c
of die "Notification" General Condition
number 13. Any NWP number 1 dirough
11 may be combined widi any other
NWP without notification to die Corps,
unless notification is otherwise required
by die terms of die NWPs. As provided
at 33 CFR 330.6 (c) two or more different
NWPs can be combined to autiiorize a
single and complete project. However,
the same NWP cannot be used more
than once for a single and complete
project.
16. Subdivisions. Discharges in any
real estate subdivision created or
subdivided after October 5, 1984, which
would cause die aggregate total loss of
waters of die United States in said
subdivision to exceed 3 acres under
NWP A or 10 acres under NWP B, is not
audiorized by this NWP unless die
District Engineer exempts a particular
subdivision or parcel by making a
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36077
written determination 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. If an exemption is
established for a subdivision,
subsequent development by individual
property owners may proceed using
either NWP A or B, as appropriate. For
purposes of this condition, 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.
17. Water Supply Intakes. No activity,
including structures and work in
navigable waters of the United States or
discharges of dredged or fill material,
may occur in the proximity of a public
water supply intake except where the
activity is for repair of the public water
supply intake structures or adjacent
bank stabilization. -""'
18. Shellfish Production. No activity,
including structures and work in
navigable waters of the United States or
discharges of dredged or fill material,
may occur in areas of concentrated
shellfish production, unless the activity
is directly related to a shellfish
harvesting activity authorized by NWP
4.
19. Suitable Material. No activity,
including structures and work in
navigable waters of the United States or
discharges of dredged or fill material,
may consist of unsuitable material (e.g.,
trash, debris, car bodies, asphalt, etc.,)
and material used for construction or
discharged must be free from toxic
pollutants in toxic amounts (see Section
307 of the Clean Water Act).
20. Mitigation. Activities, including
structures and work in navigable waters
of the United States or 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). Furthermore, the District Engineer
will require restoration, creation,
enhancement, or preservation of other
aquatic resources in order to offset the
authorized impacts, at least to the extent
that adverse environmental effects to the
aquatic environment are minimal. An
important element of any mitigation
plan for projects in or near streams or
other open waters is the requirement of
vegetated buffers (wetland, upland, or
both) adjacent to the open water areas.
21. Spawning Areas. Activities,
including structures and work in
navigable waters of the United States or
discharges of dredged or fill material, in
spawning areas during spawning
seasons must be avoided to the
maximum extent practicable. Activities
that physically destroy (e.g., excavate or
fill) an important spawning area are not
authorized.
22. Management of Water Flows: To
the maximum extent practicable, the
project must be designed to maintain
pre-construction downstream flow
conditions (e.g., location, capacity, and
flow rates). Furthermore, the project
must not permanently restrict or impede
the passage of normal or expected high
flows (unless die primary purpose of the
fill is to impound waters) and the
structure or discharge of dredged or fill
material must widistand expected high
flows. The project must provide, to the
maximum extent practicable, for
retaining excess flows from die site and
for establishing flow rates from die site
similar to pre-construction conditions.
To minimize downstream impacts, such
as flooding or erosion, and upstream
impacts, such as back-up flooding, the
project must not, to the maximum
extent practicable, increase water flows
from the site, relocate water, or redirect
flow beyond pre-construction
conditions.
23. Adverse Effects from
Impoundments. If the activity, including
structures and work in navigable waters
of die United States or discharge of
dredged or fill material, creates an
impoundment of water, adverse effects
on the aquatic system caused by die
accelerated passage of water and/or the
restriction of its flow shall be
minimized to die maximum extent
practicable.
24. Waterfowl Breeding Areas.
Activities, including structures and
work in navigable waters of die United
States or discharges of dredged or fill
material, into breeding areas for
migratory waterfowl must be avoided to
the maximum extent practicable.
25. Removal of Temporary Fills. Any
temporary fills must be removed in dieir
entirety and die affected areas returned
to dieir preexisting elevation.
D. Further Information
1. District engineers have audiority to
determine if an activity complies widi
die terms and conditions of an NWP.
2. NWPs do not obviate die need to
obtain odier Federal, State, or local
permits, approvals, or audiorizations
required by law.
3. NWPs do not grant any property
rights or exclusive privileges.
4. NWPs do not authorize any injury
to die property or rights of others.
5. NWPs do not authorize interference
widi any existing or proposed Federal
project.
E. Definitions
1. Aquatic bench: Aquatic benches are
those shallow areas around die edge of
a permanent pool stormwater
management facility that support
aquatic vegetation, both submerged and
emergent.
2. Best management practices: Best
Management Practices (BMPs) are
policies, practices, procedures, or
structures implemented to mitigate die
adverse impacts on surface water
quality resulting from development.
BMPs are categorized as structural or
non-structural. A BMP policy may affect
die limits on a development.
3. Channelized stream: A channelized
stream is a stream that has been
manipulated to increase die rate of
water flow through die stream channel.'
Manipulation may include deepening,
widening, straightening, armoring, and
odier activities that change die stream
cross-section and odier aspects of
channel geometry in an effort to
increase water conveyance. A
channelized stream remains a water of
die United States despite die alterations.
For die purposes of die NWPs, a
channelized stream is not considered to
be a drainage ditch.
4. Contiguous wetland: A contiguous
wedand is a wetland diat is connected
by surface waters to odier waters of die
United States. For example, in tidal
ecosystems, contiguous wetlands may
be either tidal or non-tidal. For die
purposes of die NWPs, contiguous
wedands in tidal ecosystems extend in
die same direction as the ebb and flow
of die tide; wetlands diat are upstream
(i.e., either upstream on die main tidal
channel or upstream on any linear
aquatic system widi a defined channel
diat enters die contiguous wedand) of
tidal waters are not considered to be
contiguous. Contiguous wetlands in
non-tidal systems are normally
contiguous to die nearest open water of
die United States and perpendicular to
a tangent of die OHWM of diat open
water. Wedands contiguous widi odier
waters of the United States are adjacent
to those waters, but wetlands adjacentto
diose waters are not necessarily
contiguous, as diey may be separated
from waters of die United States by
berms, levees, roads, etc.
5. Drainage ditch: A linear excavation
or depression constructed for die
purpose of conveying surface runoff or
groundwater from one area to another.
An "upland drainage ditch" is a
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Federal Register/Vol. 63, No. 126/Wednesday, July I, 1998/Notices
drainage ditch constructed entirely in
uplands (i.e., not waters of the United
States) and is not a water of the United
States, unless it becomes tidal or
otherwise extends the ordinary high
water line of existing waters of the
United States. Drainage ditches
constructed in waters of the United
States (e.g., by excavating wetlands)
remain waters of the United States even
though they are heavily manipulated to
increase drainage. The term "drainage
ditch" does not include channelized
streams. A drainage ditch may be
constructed in uplands or wetlands.
6. Ephemeral stream: An ephemeral
stream has flowing water only during,
and for a short duration after, storm
events in a typical year. Ephemeral
stream beds are located above the water
table year-round. Groundwater is not a
source of water for the stream. Runoff
from rainfall is the primary source of
water for stream flow.
7. Farm: A land unit under one
ownership operated as a farm as
reported to the Internal Revenue
Service.
8. Intermittent stream: An
intermittent stream has flowing water
during certain times of th«-year. When
the stream bed is located below the
water table, groundwater is the primary
source of water for stream flow. During
dry periods, intermittent streams may
not have flowing water. Runoff from
rainfall is a supplemental source of
water for stream flow.
9. Loss of waters of the United States:
Waters of the United States that include
the filled area and other waters that are
adversely affected by flooding,
excavation, or drainage as a result of the
regulated activity. The acreage of loss of
waters of the United States is the
threshold measurement of the impact to
existing waters for determining whether
a project may qualify for an NWP; it is
not a net threshold that is calculated
after considering compensatory
mitigation that may be used to offset
losses of aquatic functions and values.
The loss of stream bed Includes the
linear feet of stream that is filled or
excavated.
10. Noncontiguous wetland: A
noncontiguous wetland is a wetland
that is not connected by surface waters
to other waters of the United States, or
is part of a linear aquatic system with
a defined channel to the otherwise
contiguous wetland. Noncontiguous
wetlands may be adjacent to other ,
waters of the United States, but a direct
connection to other waters of the United
States is lacking. For example, a
depressional wetland located on a
floodplain that is separated by a narrow
band of uplands from the river is a
noncontiguous wetland, but still
adjacent to that river due to periodic
overbank flooding that is a source of
hydrology for that wetland.
Noncontiguous wetlands also include
those wetlands that are tributary to the
contiguous wetland or its open water
area, where the tributary has a defined
channel for water flow.
11. Non-tidal wetland: A non-tidal
wetland is a wetland (i.e., a water of the
United States) that is not subject to the
ebb and flow of tidal waters. The
definition of a wetland can be found at
33 CFR 328.3(b). Non-tidal wetlands
contiguous to tidal waters are located
landward of the high tide line (i.e.,
spring high tide line).
12. Perennial stream: A perennial
stream has flowing water year-round
during a typical year. The stream bed is
located below the water table for most
of the year. Groundwater is the primary
source of water for stream flow. Runoff
from rainfall is a supplemental source of
water for stream flow.
• 13. Riffle and pool complex: Riffle
and pool complexes typically occur in
steep gradient sections of perennial
streams and consist of alternating
stream segments characterized by: 1) the
rapid of movement of water over a
coarse substrate (e.g., gravel or cobble)
with shallow water and 2) the slower
movement of water over a finer
substrate (e.g., sand or silt) with deeper
water.
14. Stormwater management:
Stormwater management is the
mechanism for controlling Stormwater
runoff for the purposes of reducing
downstream erosion, water quality
degradation, and flooding and
mitigating the negative impacts of
urbanization.
15. Stormwater management
facilities: Stormwater management
facilities are those facilities, including
but not limited to, Stormwater retention
and detention ponds and BMPs, which
retain water for a period of time to
control runoff and/or improve the
quality (i.e., by reducing the
concentration of nutrients, sediments,
hazardous substances and other
pollutants) of Stormwater runoff.
16. Tidal wetland: A tidal wetland is
a wetland (i.e., a water of the United
States) that is inundated by tidal waters.
The definitions of a wetland and tidal
waters can be found at 33 CFR 328.3 (b)
and 33 CFR 328.3(f), respectively. Tidal
waters rise and fall in a predictable and
measurable rhythm or cycle due to the
gravitational pulls of the moon and sun.
Tidal waters end where the rise and fall
of the water surface can no longer be
practically measured in a predictable
rhythm due to masking by other waters,
wind, or other effects. Tidal wetlands
are located channelward of the high tide
line (i.e., spring high tide line) and are
inundated by tidal waters at least two
times per month, during spring high
tides.
17. Vegetated shallows: Vegetated
shallows are special aquatic sites under
the 404(b)(l) Guidelines. They are areas
that are permanently inundated and
under normal circumstances have
rooted aquatic vegetation, such as
seagrasses in marine and estuarine
systems and a variety of vascular rooted
plants in freshwater systems.
18. Waterbody: A waterbody is any
area that in a normal year has water
flowing or standing above ground to the
extent that evidence of an ordinary high
water mark is established.
[FRDoc. 98-17399 Filed 6-30-98; 8:45 am]
BILLING CODE 3710-92-P
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