Notice: Nationwide Permits Reissuance and Modification

Tuesday,
September 26, 2006
Part III
Department of
Defense
Department of the Army, Corps of
Engineers
Proposal To Reissue and Modify

Nationwide Permits; Notice
sroberts on PROD1PC70 with NOTICES
VerDate Aug<31>2005 22:14 Sep 25, 2006 Jkt 208001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\26SEN2.SGM 26SEN2
56258 Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Notices
DEPARTMENT OF DEFENSE comment includes information claimed Secretary of the Army, after notice and
to be Confidential Business Information opportunity for public hearing, to issue
Department of the Army, Corps of (CBI) or other information whose general permits on a nationwide basis
Engineers disclosure is restricted by statute. Do for any category of activities involving
not submit information that you discharges of dredged or fill material
[ZRIN 0710–ZA02]
consider to be CBI, or otherwise into waters of the United States.
Proposal To Reissue and Modify protected, through regulations.gov or Activities authorized by NWPs must be
Nationwide Permits e-mail. The regulations.gov Web site is similar in nature, cause only minimal
an anonymous access system, which adverse environmental effects when
AGENCY: Army Corps of Engineers, DoD. means we will not know your identity performed separately, and cause only
ACTION: Notice. or contact information unless you minimal cumulative adverse effect on
provide it in the body of your comment. the aquatic environment. Nationwide
SUMMARY: The U.S. Army Corps of If you send an e-mail directly to the permits can also be issued to authorize
Engineers (Corps) is soliciting Corps without going through activities pursuant to Section 10 of the
comments for the reissuance of the regulations.gov, your e-mail address Rivers and Harbors Act of 1899. The
existing nationwide permits (NWPs), will be automatically captured and NWP program is designed to provide
general conditions, and definitions, included as part of the comment that is timely authorizations for the regulated
with some modifications. The Corps is placed in the public docket and made public while protecting the Nation’s
also proposing to issue six new NWPs available on the Internet. If you submit aquatic resources.
and one new general condition. The an electronic comment, we recommend One goal of today’s notice is to
reissuance process starts with today’s that you include your name and other simplify the text of the reissued NWPs.
publication of the proposed NWPs in contact information in the body of your Since NWPs were first issued in 1977,
the Federal Register for a 60-day comment and with any disk or CD–ROM the NWP program has become
comment period. The purpose of this you submit. If we cannot read your increasingly complex. With each
Federal Register notice is to solicit comment because of technical issuance or reissuance of NWPs, the text
comments on the proposed new and difficulties and cannot contact you for of the permits and the general
modified NWPs, as well as the NWP clarification, we may not be able to conditions has become lengthier, and in
general conditions and definitions. consider your comment. Electronic some cases, redundant language was
Shortly after the publication of this comments should avoid the use of any added that may make them more
Federal Register notice, each Corps special characters, any form of difficult to comprehend. Compliance
district will publish a public notice to encryption, and be free of any defects or with the NWPs and their general
solicit comments on their proposed viruses. conditions is more difficult if users of
regional conditions for the new and Docket: For access to the docket to those permits cannot easily understand
modified NWPs. The comment period read background documents or the requirements of the NWPs and what
for these district public notices will be comments received, go to they authorize. Simplifying the text will
45 days. regulations.gov. All documents in the facilitate compliance with the NWPs
DATES: Submit comments on or before
docket are listed. Although listed in the and thus help protect the aquatic
November 27, 2006. index, some information is not publicly environment.
available, such as CBI or other Federal agencies are required by
ADDRESSES: You may submit comments, information whose disclosure is Executive Order 12866, Regulatory
identified by docket number COE– restricted by statute. Certain other Planning and Review, to draft
2006–0005 and/or ZRIN 0710–ZA02, by material, such as copyrighted material, regulations that are simple and easy to
any of the following methods: is not placed on the Internet and will be understand, to minimize uncertainty.
Federal eRulemaking Portal: http:// publicly available only in hard copy This principle is also applicable to the
www.regulations.gov. Follow the form. NWPs, which are now considered to be
instructions for submitting comments. Consideration will be given to all rules under the Administrative
E-mail: comments received within 60 days of Procedures Act (APA). In addition, a
david.b.olson@usace.army.mil. Include the date of publication of this notice. Presidential Memorandum issued on
the docket number, COE–2006–0005, FOR FURTHER INFORMATION CONTACT: Mr. June 1, 1998, requires Federal agencies
and/or the ZRIN number, 0710–ZA02, David Olson at 202–761–4922 or by to use plain language in government
in the subject line of the message. e-mail at david.b.olson@usace.army.mil writing, so that rules and other
Fax: 202–761–0140. or access the U.S. Army Corps of documents are clear to the public and
Mail: U.S. Army Corps of Engineers, Engineers Regulatory Home Page at others.
Attn: CECW–OR/MVD (David B. Olson), http://www.usace.army.mil/inet/ We are proposing to revise the text of
441 G Street NW., Washington, DC functions/cw/cecwo/reg/. the NWPs, general conditions, and
20314–1000. SUPPLEMENTARY INFORMATION: definitions so that they are clearer, more
Hand Delivery/Courier: Due to concise, and can be more easily
security requirements, we cannot Background understood by the regulated public,
receive comments by hand delivery or The current nationwide permits government personnel, and interested
courier. (NWPs), which were published in the parties, while retaining terms and
Instructions: Direct your comments to January 15, 2002, issue of the Federal conditions that protect the aquatic
docket number COE–2006–0005 and/or Register (67 FR 2020) expire on March environment. Making the text of the
ZRIN 0710–ZA02. All comments 18, 2007. With this Federal Register NWPs clearer and easier to understand
received will be included in the public notice, we are beginning the process for will also facilitate compliance with
docket without change and may be reissuing the NWPs so that the reissued these permits, which will benefit the
made available on-line at http:// NWPs will be in effect as the current aquatic environment. This proposal also
www.regulations.gov, including any NWPs expire. reflects the Corps support of the
personal information provided, unless Section 404(e) of the Clean Water Act administration’s goal of improving
the commenter indicates that the provides the statutory authority for the regulatory efficiency, by making the
Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / Notices 56259
NWPs easier to read and understand. impacts to the aquatic environment are parties of the date(s) and location(s) for
The text of the proposed NWPs has been minimal. Review of PCNs may also the public hearing(s). Any
streamlined by removing redundant result in the Corps asserting announcement of public hearings would
language and applying a standard discretionary authority to require an also be posted as a supporting material
format to most NWPs. We are proposing individual permit if the district engineer in the docket at www.regulations.gov as
to arrange the NWP general conditions determines, based on the information well as the Corps regulatory home page
in a different order, so that the provided in the notification, that at http://www.usace.army.mil/inet/
conditions that provide environmental adverse impacts will be more than functions/cw/cecwo/reg/citizen.htm
protection are first, followed by minimal, either individually or Concurrent with this Federal Register
administrative and procedural general cumulatively, or there are sufficient notice, Corps district offices will issue
conditions. concerns for any of the Corps public public notices to solicit comments on
Today’s proposal to reissue the interest review factors. proposed regional conditions. In their
existing NWPs with some modifications Regional conditions may be imposed district public notices, district engineers
and to issue six new NWPs reflects the by division engineers to take into may also propose to suspend or revoke
Corps commitment to its environmental account regional differences in aquatic some or all of these NWPs if they have
protection mission and to aquatic resource functions and services across issued, or are proposing to issue,
resource protection. The NWP program the country and to restrict the use of regional general permits, programmatic
allows the Corps to authorize activities NWPs to protect those resources. general permits, or section 404 letters of
with minimal adverse environmental Through regional conditions, a division permission for use in lieu of NWPs. The
impacts in a timely manner and protect engineer can modify an NWP to require comment period for these district public
the aquatic environment. The NWP submission of PCNs for certain notices will be 45 days.
program also allows the Corps to focus activities. Regional conditions may also After the comment period has ended,
its limited resources on more extensive restrict or prohibit the use of an NWP we will review the comments received
evaluation of projects that have the in certain waters or geographic areas, if in response to this Federal Register
potential for causing environmentally the use of that NWP in those waters or notice. Then we will draft the final
damaging adverse effects. areas might result in more than minimal NWPs, and those final draft NWPs will
Through the NWPs, impacts to the individual or cumulative adverse effects be subjected to another review by
aquatic environment may also receive to the aquatic environment. interested Federal agencies. The final
additional protection through regional District engineers may impose special issued NWPs will be published in the
conditions, case-specific special conditions on NWP authorizations to Federal Register by January 2007. These
conditions, and case-specific ensure that the NWP authorizes only final NWPs will become effective 60
discretionary authority to require activities that result in minimal days after their publication. This
individual permits. Nationwide permits individual and cumulative effects on the schedule provides a 60-day period for
and other general permits help protect aquatic environment and are in the state and tribal Clean Water Act Section
the aquatic environment because permit public interest. In addition, special 401 water quality certifications (WQCs),
applicants often reduce project impacts conditions will often include as well as state Coastal Zone
to meet the restrictive requirements of compensatory mitigation requirements Management Act (CZMA) consistency
general permits and receive to reduce the project impacts to the decisions. Within this 60-day period,
authorization more quickly than they minimal level. Compensatory mitigation division engineers will also approve
would through the individual permit may include the restoration, regional conditions and issue
process. establishment, enhancement, and/or supplemental decision documents.
Twenty-six of the NWPs proposed for preservation of aquatic habitats, as well Supplemental decision documents
reissuance require pre-construction as the establishment and maintenance of address the environmental
notification (PCN) for certain activities. riparian areas next to streams and other considerations related to the use of
Fifteen of those NWPs require PCNs for open waters. Compensatory mitigation NWPs in a Corps district. The
all activities. Four of the six proposed can be provided through permittee- supplemental decision documents will
new NWPs require PCNs. Three of those responsible mitigation, mitigation certify that the NWPs, with any regional
four new NWPs require PCNs for all banks, or in-lieu fee programs. conditions or geographic revocations,
activities. Altogether, PCN requirements will only authorize activities within that
have been added or expanded for seven Process for Reissuing the NWPs
Corps district that result in minimal
permits, relative to the requirements in The NWPs reissued on January 15, individual and cumulative adverse
the current permits. Existing PCN 2002, became effective on March 18, effects on the aquatic environment. The
requirements have been dropped in one 2002, and expire on March 18, 2007. regional conditioning and WQC/CZMA
permit (NWP 5), and reduced in another The reissuance process starts with processes are discussed below.
(NWP 12), because the conditions for today’s publication of the proposed
authorization under these permits are NWPs in the Federal Register for a 60- Compliance With Section 404(e) of the
adequate to ensure minimal individual day comment period. Requests for a Clean Water Act
and cumulative effects without the public hearing must be submitted in The proposed NWPs are issued in
previously required PCNs. PCN writing to the address in the ADDRESSES accordance with Section 404(e) of the
requirements give the Corps the section of this notice. These requests Clean Water Act. These NWPs authorize
opportunity to evaluate certain must state the reason(s) for holding a categories of activities that are similar in
proposed NWP activities on a case-by- public hearing. If we determine that a nature. The ‘‘similar in nature’’
case basis to ensure that they will have public hearing or hearings would assist requirement does not mean that
no more than minimal adverse effects in making a decision on the issuance of activities authorized by an NWP must
on the aquatic environment, the proposed new NWPs, reissuance of be identical to each other. We believe
individually and cumulatively. This existing NWPs, or the NWP general that the ‘‘categories of activities that are
case-by-case review often results in conditions or definitions, a 30-day similar in nature’’ requirement of
adding case-specific conditions to the advance notice will be published in the section 404(e) is to be interpreted
NWP authorization to ensure that Federal Register to advise interested broadly, for practical implementation of
this general permit program. material into waters of the United authorizations for any specific
Nationwide permits, as well as other States, the decision document will geographic area within his division.
general permits, are intended to reduce include a 404(b)(1) Guidelines analysis Regional conditions are considered
administrative burdens on the Corps in accordance with 40 CFR 230.7. These NWP modifications. Therefore, when
and the regulated public, by efficiently decision documents will consider the the process is completed, each district
authorizing activities that have minimal environmental effects of each NWP from will have approved supplemental
adverse environmental effects. a national perspective. Division decision documents for each NWP, and
As for the minimal adverse effects engineers will issue supplemental those supplemental decision documents
provision of section 404(e), the various decision documents to evaluate regional will assess cumulative effects within
terms and conditions of these NWPs, effects on the aquatic environment and that district.
including the provisions in the NWP other public interest review factors. District engineers may also
regulations at 33 CFR 330.1(d) and 33 Those supplemental decision recommend that the division engineer
CFR 330.4(d) that allow district documents will discuss regional exercise discretionary authority to
engineers to exercise discretionary conditions imposed by division modify, suspend, or revoke case-specific
authority, ensure compliance with this engineers to protect the aquatic NWP authorizations within a district to
requirement. A decision document will environment and ensure that any ensure that only minimal cumulative
be prepared for each NWP to address adverse effects resulting from NWP adverse effects on the aquatic
the requirements of the National activities will be no more than minimal. environment result from activities
Environmental Policy Act and generally The assessment of cumulative effects authorized by that NWP. Evaluations by
discuss the anticipated impacts the occurs at two levels: national and a district engineer may result in the
NWP will have on the Corps public regional (district). However, division engineer modifying,
interest review factors. For those NWPs modifications at the district level are suspending, or revoking NWP
that may authorize discharges of issued by the appropriate division authorizations in a particular geographic
dredged or fill material into waters of engineer. There are eight Corps division region or watershed at a later time, if the
the United States, a 404(b)(1) Guidelines offices in the United States, with 38 use of an NWP in a particular area will
analysis will be provided in the district offices. A division office may result in more than minimal cumulative
decision document. The 404(b)(1) oversee as many as seven districts or individual adverse effects on the
Guidelines analysis will be conducted (Lakes and Rivers Division) or as few as aquatic environment. Special conditions
in accordance with the procedures at 40 two district offices (Pacific Ocean added to NWP authorizations on a case-
CFR 230.7. The preliminary decision Division). by-case basis by district engineers, such
documents for the proposed NWPs are At the national level, the decision as compensatory mitigation
available on the internet at: documents issued by Corps requirements, help ensure that the
www.regulations.gov (docket ID number Headquarters include the cumulative NWPs authorize only activities that
COE–2006–0005). We are soliciting effects assessments required by NEPA result in minimal individual and
comments on these preliminary and, if the NWP authorizes discharges of cumulative adverse effects on the
decision documents, and any comments dredged or fill material into waters of aquatic environment.
received will be considered when the United States, the 404(b)(1)
Guidelines. The 404(b)(1) Guidelines at Acreage Limits and Pre-Construction
preparing the final decision documents Notification Thresholds
for the NWPs. 40 CFR 230.7(b) require an evaluation of
the potential individual and cumulative We are proposing to retain the current
Decision of U.S. Court of Appeals for impacts of the category of activities acreage limits for the NWPs, although
the District of Columbia Circuit authorized under the NWP. we are seeking comment on adding an
In its July 29, 2005, decision in The supplemental decision acreage limit for NWP 21, which
National Association of Homebuilders documents issued by division engineers currently has no acreage limit. We are
v. U.S. Army Corps of Engineers (Nos. include cumulative effects assessments also proposing to move the provisions of
04–5009, 04–5010, and 04–5011), the at the regional (district) level, for each NWP 39 that authorize residential
U.S. Court of Appeals for the District of district within the division. For those developments to NWP 29 and place a 1⁄2
Columbia Circuit determined that NWPs NWPs that authorize section 404 acre limit on the proposed NWP 29.
are rules under the APA, and are subject activities, the supplemental decision Currently NWP 29 has a 1⁄4 acre limit for
to the Regulatory Flexibility Act (RFA). documents will also discuss local single unit residences, but this NWP can
In the ‘‘Administrative Requirements’’ concerns relating to the Section be used in all non-tidal waters,
section of this preamble, we have 404(b)(1) Guidelines, if the national including non-tidal wetlands that are
addressed the requirements of the RFA. decision documents do not adequately adjacent to tidal waters. Single unit
We have also performed other address those issues. If the NWP is not residential projects are also permitted to
rulemaking analyses that are required by revoked in a district, the supplemental use NWP 39, with a 1⁄2 acre limit, if they
other statutes and executive orders. decision document includes a affect only non-tidal waters, but NWP
Those analyses are also provided in the certification that the use of the NWP in 39 cannot be used to authorize these
‘‘Administrative Requirements’’ section that district, with any applicable activities in non-tidal wetlands adjacent
of this preamble. regional conditions (i.e., applicable in a to tidal waters. The revised NWP 29 will
specific district), will result in minimal have a 1⁄2 acre limit, but will only
National Environmental Policy Act cumulative adverse environmental authorize discharges into non-tidal
Compliance effects. The supplemental decision waters, and this NWP could not be used
We have prepared preliminary documents are prepared by Corps to authorize discharges in non-tidal
decision documents for each proposed districts, but must be approved and wetlands that are adjacent to tidal
NWP. Each decision document contains formally issued by the appropriate waters. All residential projects
an environmental assessment (EA) and division engineer, since the NWP impacting non-tidal wetlands adjacent
a Finding of No Significant Impact regulations at 33 CFR 330.5(c) state that to tidal waters, including single unit
(FONSI). If the proposed NWP the division engineer has the authority residences, will now require
authorizes discharges of dredged or fill to modify, suspend, or revoke NWP authorization by individual permit or
regional general permit. The Corps would no longer be required for: (1) waiver could not be issued for impacts
believes this additional level of Mechanized landclearing of forested resulting in the loss of greater than 300
environmental protection is warranted wetlands in the utility line right-of-way; linear feet of perennial streams (and we
for non-tidal wetlands adjacent to tidal (2) utility lines constructed in waters of are not proposing to change this
waters because of concerns regarding the United States that are greater than provision). For ephemeral streams, no
environmental impacts of residential 500 linear feet in length; (3) utility lines waiver process was necessary because
development in coastal areas. constructed in waters of the United impacts to ephemeral streams were not
Proposed NWP A, Emergency Repair States where the utility line is parallel counted towards the 300 linear foot
Activities, has no explicit acreage limit to a stream; (4) permanent access roads limit for determining compliance with
but will be limited to restoring damaged constructed in waters of the United the NWPs.
structures, fills, or uplands to the pre- States for a distance of greater than 500 Applying the linear foot limit to
event ordinary high water mark, in cases feet; and (5) permanent access roads losses of ephemeral stream bed will also
where regulated activities in waters of constructed in waters of the United simplify administration of the NWP
the United States are necessary to States with impervious materials, program. It is often difficult to
conduct the restoration. Proposed NWP provided the total losses of waters of the distinguish between intermittent and
B, which would authorize discharges in United States are less than 1⁄10 acre. For ephemeral streams in the field. By
certain types of ditches and canals, has those NWP activities that do not require applying the same thresholds and limits
a one acre limit, and proposed NWP C submission of PCNs to district to impacts resulting in the loss of
has no acreage limit for conducting engineers, division engineers can intermittent and ephemeral streams, it
time-sensitive repairs of pipelines. impose regional conditions to require will not be necessary to identify which
Proposed NWP D, Commercial Shellfish PCNs. We are soliciting comments on stream reaches are intermittent and
Aquaculture Activities, is limited to the proposed PCN thresholds for the which are ephemeral. Many topographic
existing aquaculture activities. The NWPs. maps do not show the locations of
Corps is seeking comment on whether intermittent and ephemeral streams,
an acreage limit or some other type of Ephemeral Streams which results in greater reliance on site
limit (e.g., on the total volume of fill On June 19, 2006, the Supreme Court visits or information from permit
material that may be discharged) is issued its decision in the case of applicants to implement permit
needed to ensure that these existing Rapanos et ux, et al, v. United States. conditions related to the 300 linear foot
activities have no more than minimal This decision raises questions about the limit.
adverse effects. As proposed, this NWP jurisdiction of the Clean Water Act, For those NWPs that have both an
will require a PCN if the activity covers including Section 404, over some acreage limit and a linear foot limit for
more than 25 acres, or if more than 10 intermittent and ephemeral streams and stream bed impacts, the acreage of
acres is covered with submerged aquatic their adjacent wetlands. The Corps will stream impacts (i.e., the length of the
vegetation. The proposed NWP assess jurisdiction regarding such stream bed filled or excavated times the
authorizing coal remining activities waters on a case-by-case basis in average width of the stream, from
(NWP E) is limited to sites where more accordance with evolving case law and OHWM to OHWM) applies towards that
than 60 percent of the site was any future guidance that may be issued acreage limit. For example, if a
previously mined. Proposed NWP F, by appropriate Executive Branch proposed NWP 39 activity involves
which authorizes underground coal agencies (e.g., the Department of filling 1⁄10 acre of non-tidal wetlands
mining activities, has a 1⁄2 acre limit. We Justice). The discussion that follows and 100 linear feet of a stream bed with
are seeking comments on the proposed applies to all ephemeral and an average width of 10 feet, the acreage
limits for these NWPs. intermittent streams and adjacent loss of waters of the United States for
We are proposing to simplify the PCN wetlands that remain jurisdictional that activity is 0.123 acre.
thresholds for NWP 12 by reducing the following Rapanos. As discussed below, we are also
number of criteria triggering the We are proposing to provide greater proposing to modify the definition of
requirement to submit PCNs from seven protection for ephemeral streams. For ‘‘loss of waters of the United States’’ to
to two, since the 1⁄10 acre PCN threshold those NWPs that have a 300 linear foot include filling or excavating of
will normally capture the activities limit for the loss of stream bed, we are ephemeral stream beds when
addressed by the PCN thresholds we are proposing to apply that linear foot limit determining whether proposed activities
proposing to remove. For NWP 13, PCNs to perennial, intermittent, and exceed the threshold limits of the
will be required for proposed activities ephemeral streams. The 300 linear foot NWPs.
that involve discharges of dredged or fill limit is found in the terms of NWPs 29,
39, 40, and 42. For proposed activities Compliance With the Endangered
material into special aquatic sites. We
resulting in the loss of more than 300 Species Act
are also proposing to eliminate the PCN
thresholds for NWPs 39, 40, 42, and 43. linear feet of intermittent and/or In its April 6, 2005, decision in
All activities authorized by these ephemeral stream bed, the district National Wildlife Federation et al. v. Les
permits will now require PCNs. engineer can waive the linear foot limit, Brownlee (No. 03–1392), the U.S.
We are proposing to remove the PCN if he determines that the proposed District Court for the District of
requirement for NWP 5, which activity will result in minimal Columbia determined that the Corps is
authorizes scientific measuring devices, individual and cumulative adverse obligated to consult with the U.S. Fish
and rely on the current 25 cubic yard effects on the aquatic environment. and Wildlife Service on the effects of
limit for discharges of dredged or fill Waivers of the 300 linear foot limit for the NWPs. In response to that decision,
material to ensure that the NWP the loss of intermittent and ephemeral the Corps will conduct Endangered
authorizes only activities with minimal streams must be in writing. Species Act Section 7(a)(2) consultation.
individual and cumulative adverse In the 2002 NWPs, the 300 linear foot Corps districts will consult with the
effects on the aquatic environment. We limit applied only to perennial and U.S. Fish and Wildlife Service (FWS)
are also proposing to drop some of the intermittent stream beds, and the 300 and the National Marine Fisheries
PCN requirements for special situations linear foot limit could be waived for Service (NMFS) for the species that
under NWP 12. Specifically, PCNs losses of intermittent stream bed. A occur in their districts.
Essential Fish Habitat Identification study with associated modifications, suspensions, or

The NWP Program’s compliance with regional general permits. revocations of NWPs.
• Adding pre-construction Before the effective date of NWPs, the
the essential fish habitat (EFH)
notification (PCN) requirements to division engineer will issue
consultation requirements of the
NWPs to require notification for all supplemental decision documents for
Magnuson-Stevens Fishery
work in certain watersheds or certain each NWP. These supplemental
Conservation and Management Act will
types of waters of the United States, or decision documents will address the
be achieved through EFH consultations
lowering the PCN threshold. NWP regional conditions. Each
between Corps districts and NMFS • Reducing NWP acreage limits in supplemental decision document will
regional offices. Corps districts will certain types of waters of the United also include a statement by the division
request EFH consultations with the States, or specific waterbodies; engineer, which will certify that the
NMFS regional office in cases where • Revoking certain NWPs on a NWP, with approved regional
activities authorized by NWP may geographic or watershed basis; conditions, will authorize only activities
adversely affect EFH. The purpose of • Restricting activities authorized by with minimal individual and
these regional consultations is to NWPs to certain times of the year in a cumulative adverse effects on the
determine if implementation of the particular waterbody, to minimize the aquatic environment.
proposed NWPs and regional conditions adverse effects of those activities on fish After the division engineer approves
within a particular region may have an or shellfish spawning, wildlife nesting, the Corps regional conditions, each
adverse effect on EFH. These or other ecologically cyclical events. Corps district will issue a final public
consultations will be conducted • Conditions necessary to ensure notice for the NWPs. The final public
according to the EFH consultation compliance with the Endangered notice will announce both the final
regulations at 50 CFR 600.920. Species Act and essential fish habitat Corps regional conditions and any final
Regional Conditioning of Nationwide provisions of the Magnuson-Stevens WQC/CZMA regional conditions. The
Permits Fishery Conservation and Management final public notices will also announce
Act. the final status of water quality
Under Section 404(e), NWPs can only Corps regional conditions approved certifications and CZMA consistency
be issued that result in no more than by division engineers cannot remove or determinations for the NWPs. Corps
minimal individual and cumulative weaken any of the terms and conditions districts may adopt additional regional
adverse effects on the aquatic of the NWPs, including general conditions in future public notices
environment. An important mechanism conditions and pre-construction (following public notice and comment),
for ensuring compliance with this notification requirements. In other if they identify a need for such
requirement is an effective regional words, Corps regional conditions can conditions.
conditioning process. Coordination with only be more restrictive than the Information on regional conditions
Federal and State agencies and Indian original NWP terms and conditions. and revocation can be obtained from the
Tribes, and the solicitation of public Regional conditions may also be appropriate district engineer, as
comments, assist division and district added to the NWPs as a result of water indicated below. Furthermore, this and
engineers in identifying and developing quality certifications (WQCs) issued by additional information can be obtained
appropriate regional conditions for the states, Indian Tribes, or the U.S. EPA, as on the Internet at http://
NWPs. Effective regional conditions well as state Coastal Zone Management www.usace.army.mil/inet/functions/cw/
protect local aquatic ecosystems and Act (CZMA) consistency cecwo/reg/district.htm by clicking on
helps ensure that the NWPs authorize determinations. the appropriate link for the Corps
only those activities that result in At approximately the same time as the district office.
minimal individual and cumulative publication of this Federal Register In cases where a Corps district has
adverse effects on the aquatic notice, each Corps district will issue an issued a regional general permit that
environment, and are in the public initial public notice. Those initial authorizes similar activities as one or
interest. public notices will include Corps more NWPs, the district will clarify the
There are two types of regional regional conditions proposed by our use of the regional general permit versus
conditions: (1) Corps regional district offices, and will also request the NWP(s) during the regional
conditions and (2) water quality comments or suggestions for additional conditioning process. For example, the
certification/Coastal Zone Management Corps regional conditions. The initial division engineer may revoke the
Act consistency determination regional public notice may also include, for applicable NWP(s) so that only the
conditions. informational purposes only, any regional general permit may be used to
Corps regional conditions may be proposed state or tribal WQC/CZMA authorize those activities.
added to NWPs by division engineers regional conditions. However, public
after a public notice and comment comment on the state or tribal WQC/ Water Quality Certification/Coastal
process and coordination with other CZMA regional conditions is handled Zone Management Act Consistency
Federal, State, and local agencies. through a separate state or tribal Determination for Nationwide Permits
Examples of Corps regional administrative procedures process. The State or Tribal water quality
conditions include: public should not address such certification, or waiver thereof, is
• Restricting the types of waters of comments to the Corps. required by Section 401 of the Clean
the United States where the NWPs may In response to the district’s initial Water Act, for activities authorized by
be used (e.g., fens, bogs, bottomland public notice, interested parties may NWPs which result in a discharge into
hardwoods, etc.) or prohibiting the use suggest additional Corps regional waters of the United States. In addition,
of some or all of the NWPs in those conditions, or suggest suspension or any state with a federally-approved
types of waters or in specific revocation of NWPs in certain CZMA plan must agree with the Corps
watersheds. geographic areas, such as specific determination that activities authorized
• Restricting or prohibiting the use of watersheds or waterbodies. Such by NWPs which are within, or will
NWPs in an area covered by a Special comments should include data to affect any land or water uses or natural
Area Management Plan, or an Advanced support the need for any suggested resources of the state’s coastal zone, are
consistent with the CZMA plan to the NWP verification letters. The Corps will notify the applicant that they
maximum extent practicable. Water provisional verification letter will must obtain a project specific CZMA
quality certifications and/or CZMA contain general and regional conditions consistency determination before they
consistency determinations may be as well as any project specific are authorized to start work in waters of
issued without conditions, issued with conditions the Corps determines are the United States. That is, NWP
conditions, or denied for specific NWPs. necessary for NWP authorization. The authorization will be contingent upon
We believe that, in general, the Corps will notify the applicant that they obtaining the necessary CZMA
activities authorized by the NWPs will must obtain a project specific water consistency concurrence from the State.
not violate State or Tribal water quality quality certification, or waiver thereof, Anyone wanting to perform such
standards and will be consistent with before they are authorized to start work activities where pre-construction
state CZMA plans. The NWPs are in waters of the United States. That is, notification to the Corps is not required
conditioned to ensure that adverse NWP authorization will be contingent has an affirmative responsibility to
environmental effects will be minimal upon obtaining the necessary water present a consistency certification to the
and address the types of activities that quality certification or waiver thereof appropriate State agency for
would be routinely authorized if from the State, Tribe, or EPA where concurrence. Upon concurrence with
evaluated under the individual permit appropriate. Anyone wanting to perform such consistency certifications by the
process. We recognize that in some such activities where pre-construction state, the activity would be authorized
states or Tribal lands there will be a notification to the Corps is not required by the NWP. This requirement is
need to add regional conditions, or has an affirmative responsibility to first provided at 33 CFR 330.4(d).
individual state or Tribal review for obtain a project-specific water quality
some activities, to ensure compliance Nationwide Permit Verifications
certification or waiver thereof from the
with water quality standards and/or Tribe, State, or EPA before proceeding Certain NWPs require the permittee to
consistency with CZMA plans. As a under the NWP. This requirement is submit a PCN, and thus request
practical matter, we intend to work with provided at 33 CFR 330.4(c). confirmation from the district engineer
states and Tribes to ensure that NWPs that an activity complies with the terms
include the necessary conditions so that Section 307 of the Coastal Zone and conditions of an NWP, prior to
they can issue water quality Management Act (CZMA) commencing the proposed work. The
certifications or CZMA consistency This Federal Register notice serves as requirement to submit a PCN is
concurrences. Therefore, each Corps the Corps determination that the identified in the NWP text. Pre-
district will initiate discussions with activities authorized by these NWPs are, construction notification requirements
their respective state(s) and Tribe(s), as to the maximum extent practicable, may added to NWPs by division
appropriate, to discuss issues of concern consistent with state CZMA programs. engineers through regional conditions.
and identify regional modification and This determination is contingent upon In cases where pre-construction
other approaches to address the scope of the addition of state CZMA conditions notification is not required, a project
waters, activities, discharges, and PCNs, and/or regional conditions, or the proponent may submit a PCN
as appropriate, to resolve these issues. issuance by the state of an individual voluntarily, if he or she wants assurance
Note that in some states the Corps has consistency concurrence, where that the activity is authorized by an
issued state programmatic general necessary. States are requested to agree NWP. An NWP verification is a
permits (SPGPs), and within those states or disagree with the consistency response to a PCN that confirms that a
some or all of the NWPs may be determination following 33 CFR particular activity is authorized by an
suspended or revoked by division 330.4(d) for these NWPs. NWP.
engineers. Concurrent with today’s The Corps’ CZMA consistency In response to an NWP verification
proposal, district engineers may be determination only applies to NWP request (PCN), the district engineer
proposing modification or revocation of authorizations for activities that are reviews the information submitted by
the NWPs in states where SPGPs will be within, or affect, any land, water uses or the prospective permittee. If the district
used in place of some or all of the natural resources of a State’s coastal engineer determines that the activity
NWPs. zone. NWP authorizations for activities complies with the terms and conditions
that are not within or would not affect of the NWP, he will notify the
Section 401 of the Clean Water Act a State’s coastal zone do not require a permittee. Special conditions, such as
This Federal Register notice serves as Corps CZMA consistency determination compensatory mitigation requirements,
the Corps application to the Tribes, and thus are not contingent on a State’s may be added to the NWP authorization
States, or EPA, where appropriate, for agreement with the Corps’ consistency to ensure that the activity results in
water quality certification of the determinations. minimal individual and cumulative
activities authorized by these NWPs. If a State disagrees with the Corps adverse effects on the aquatic
The Tribes, States, and EPA, where consistency determination for an NWP, environment and other public interest
appropriate, are requested to issue, then the Corps will deny authorization factors. The special conditions are
deny, or waive water quality for the activities within or that would incorporated into the NWP verification,
certification pursuant to 33 CFR 330.4(c) affect the coastal zone without along with the NWP text and the NWP
for these NWPs. prejudice. However, when applicants general conditions.
If a state denies a water quality request approval of such activities, and If the district engineer reviews the
certification for an NWP within that the Corps determines that those NWP verification request and
state, then the Corps will deny NWP activities meet the terms and conditions determines that the proposed activity
authorization for the affected activities of the NWP, the Corps will issue does not comply with the terms and
within that state without prejudice. provisional NWP verification letters. conditions of an NWP, he will notify the
However, when applicants request The provisional verification letter will project proponent and provide
approval of such activities, and the contain general and regional conditions instructions for applying for
Corps determines that those activities as well as any project specific authorization under a regional general
meet the terms and conditions of the conditions the Corps determines are permit or an individual permit. District
NWP, the Corps will issue provisional necessary for NWP authorization. The engineers will respond to NWP
verification requests within 45 days of Idaho 601 E. 12th Street, Kansas City, MO
receiving a complete PCN. Except for Walla Walla District Engineer, ATTN: 64106–2896.
NWP 21, if the project sponsor has not CENWW–RD, 201 North Third Avenue, Montana
received a reply from the Corps within Walla Walla, WA 99362–1876.
45 days, she may assume that the Omaha District Engineer, ATTN:
project is authorized, consistent with Illinois CENWO–OD–R, 106 South 15th Street,
the information in the PCN. For NWP 21 Rock Island District Engineer, ATTN: Omaha, NE 68102–1618.
(Surface Coal Mining), the project CEMVR–OD–P, P.O. Box 2004, Rock Nebraska
sponsor may not begin work before Island, IL 61204–2004.
receiving an NWP verification. Omaha District Engineer, ATTN:
Indiana CENWO–OD–R, 106 South 15th Street,
Contact Information for Corps District Omaha, NE 68102–1618.
Engineers Louisville District Engineer, ATTN:
CELRL–OP–F, P.O. Box 59, Louisville, Nevada
Alabama KY 40201–0059.
Sacramento District Engineer, ATTN:
Mobile District Engineer, ATTN: Iowa CESPK–CO–R, 1325 J Street,
CESAM–RD, 109 St. Joseph Street, Sacramento, CA 95814–2922.
Mobile, AL 36602–3630. Rock Island District Engineer, ATTN:
CEMVR–OD–P, P.O. Box 2004, Rock New Hampshire
Alaska Island, IL 61204–2004.
New England District Engineer,
Alaska District Engineer, ATTN: Kansas ATTN: CENAE–R, 696 Virginia Road,
CEPOA–CO–R, P.O. Box 6898,
Kansas City District Engineer, ATTN: Concord, MA 01742–2751.
Elmendorf AFB, AK 99506–6898.
CENWK–OD–R, 700 Federal Building, New Jersey
Arizona 601 E. 12th Street, Kansas City, MO
Los Angeles District Engineer, ATTN: 64106–2896. Philadelphia District Engineer, ATTN:
CESPL–CO–R, P.O. Box 532711, Los CENAP–OP–R, Wannamaker Building,
Kentucky 100 Penn Square East, Philadelphia, PA
Angeles, CA 90053–2325.
Louisville District Engineer, ATTN: 19107–3390.
Arkansas CELRL–OP–F, P.O. Box 59, Louisville, New Mexico
Little Rock District Engineer, ATTN: KY 40201–0059.
CESWL–RO, P.O. Box 867, Little Rock, Albuquerque District Engineer,
Louisiana ATTN: CESPA–OD–R, 4101 Jefferson
AR 72203–0867.
New Orleans District Engineer, ATTN: Plaza NE, Albuquerque, NM 87109–
California CEMVN–OD–S, P.O. Box 60267, New 3435.
Sacramento District Engineer, ATTN: Orleans, LA 70160–0267. New York
CESPK–CO–R, 1325 J Street,
Maine New York District Engineer, ATTN:
Sacramento, CA 95814–2922.
New England District Engineer, CENAN–OP–R, 26 Federal Plaza, New
Colorado ATTN: CENAE–R, 696 Virginia Road, York, NY 10278–0090.
Albuquerque District Engineer, Concord, MA 01742–2751. North Carolina
ATTN: CESPA–OD–R, 4101 Jefferson
Maryland Wilmington District Engineer, ATTN:
Plaza NE, Albuquerque, NM 87109–
3435. Baltimore District Engineer, ATTN: CESAW–RG, P.O. Box 1890,
CENAB–OP–R, P.O. Box 1715, Wilmington, NC 28402–1890.
Connecticut Baltimore, MD 21203–1715. North Dakota
New England District Engineer,
Massachusetts Omaha District Engineer, ATTN:
ATTN: CENAE–R, 696 Virginia Road,
Concord, MA 01742–2751. New England District Engineer, CENWO–OD–R, 106 South 15th Street,
ATTN: CENAE–R, 696 Virginia Road, Omaha, NE 68102–1618.
Delaware Concord, MA 01742–2751. Ohio
Philadelphia District Engineer, ATTN:
CENAP–OP–R, Wannamaker Building, Michigan Huntington District Engineer, ATTN:
100 Penn Square East Philadelphia, PA Detroit District Engineer, ATTN: CELRH–OR–F, 502 8th Street,
19107–3390. CELRE–RG, P.O. Box 1027, Detroit, MI Huntington, WV 25701–2070.
48231–1027. Oklahoma
Florida
Jacksonville District Engineer, ATTN: Minnesota Tulsa District Engineer, ATTN:
CESAJ–RD, P.O. Box 4970, Jacksonville, St. Paul District Engineer, ATTN: CESWT–RO, 1645 S. 101st East Ave,
FL 32232–0019. CEMVP–OP–R, 190 Fifth Street East, St. Tulsa, OK 74128–4609.
Paul, MN 55101–1638. Oregon
Georgia
Savannah District Engineer, ATTN: Mississippi Portland District Engineer, ATTN:
CESAS–OP–F, P.O. Box 889, Savannah, Vicksburg District Engineer, ATTN: CENWP–OD–G, P.O. Box 2946,
GA 31402–0889. CEMVK–OD–F, 4155 Clay Street, Portland, OR 97208–2946.
Vicksburg, MS 39183–3435.
Hawaii Pennsylvania
Honolulu District Engineer, ATTN: Missouri Baltimore District Engineer, ATTN:
CEPOH–EC–R, Building 230, Fort Kansas City District Engineer, ATTN: CENAB–OP–R, P.O. Box 1715,
Shafter, Honolulu, HI 96858–5440. CENWK–OD–R, 700 Federal Building, Baltimore, MD 21203–1715.
Rhode Island Pacific Territories (American Samoa, requirement applies to all NWPs that
Guam, & Commonwealth of the may authorize activities in spawning
New England District Engineer, Northern Mariana Islands) areas. In cases where specific
ATTN: CENAE–R, 696 Virginia Road, requirements or actions are necessary to
Concord, MA 01742–2751. Honolulu District Engineer, ATTN:
CEPOH–EC–R, Building 230, Fort ensure that a particular activity
South Carolina Shafter, Honolulu, HI 96858–5440. complies with NWP general conditions,
district engineers should add special
Charleston District Engineer, ATTN: Puerto Rico and Virgin Islands conditions to the NWP authorization for
CESAC–CO–P, P.O. Box 919, Jacksonville District Engineer, ATTN: that activity. For example, for an NWP
Charleston, SC 29402–0919. CESAJ–RD, P.O. Box 4970, Jacksonville, activity that will occur in a stream or
FL 32232–0019. other waterbody with spawning areas,
South Dakota special conditions may need to be
Request for Comment added to the NWP authorization that
Omaha District Engineer, ATTN:
CENWO–OD–R, 106 South 15th Street, We are proposing to reissue all impose time-of-year restrictions for
nationwide permits, general conditions, conducting that activity, to minimize
Omaha, NE 68102–1618.
and definitions. Substantive changes to adverse effects to those spawning areas.
Tennessee the nationwide permits, general If the area in the vicinity of the project
conditions, and definitions are site does not contain spawning areas,
Nashville District Engineer, ATTN: discussed below, but we are soliciting then this general condition would not
CELRN–OP–F, 3701 Bell Road, comments on all the nationwide apply to that NWP activity.
Nashville, TN 37214. permits, general conditions, and NWP 3. Maintenance. (Cat 2) We are
Texas definitions. Minor grammatical changes, proposing to restructure and simplify
the removal of redundant language, and this NWP by shifting some of the
Galveston District Engineer, ATTN: other small changes are not discussed in activities currently authorized by NWP
CESWG–PE–R, P.O. Box 1229, the preamble below. Therefore, 3 to the proposed new NWP A,
Galveston, TX 77553–1229. commenters should carefully read each Emergency Repair Activities.
proposed NWP, general condition, and Specifically we are proposing to remove
Utah definition in this notice. the last two sentences of paragraph (i)
and the entire paragraph (iii) that are in
Sacramento District Engineer, ATTN: Discussion of Proposed Modifications to the current NWP 3 to the proposed new
CESPK–CO–R, 1325 J Street, CA 95814– Existing Nationwide Permits NWP A. We are also proposing to
2922. The proposed changes to the existing remove the definition of ‘‘currently
Vermont NWPs fall into two categories: serviceable’’ from the first paragraph of
Category 1 (Cat 1)—Proposed this NWP and place that definition in
New England District Engineer, clarification of an existing NWP by the ‘‘Definitions’’ section, because that
ATTN: CENAE–R, 696 Virginia Road, making minor changes to the text of the term is also used in NWP 41,
Concord, MA 01742–2751. NWP. It does not change the scope of ‘‘Reshaping Existing Drainage Ditches’’
activities authorized by the existing and proposed NWP C, ‘‘Pipeline Safety
Virginia NWP. Program Designated Time Sensitive
Norfolk District Engineer, ATTN: Category 2 (Cat 2)—Proposed Inspections and Repairs.’’ The term
CENAO–OP–R, 803 Front Street, modification of an existing NWP that ‘‘currently serviceable’’ means useable
Norfolk, VA 23510–1096. changes the scope of activities as is or with some maintenance, but not
authorized by that NWP, or its so degraded as to essentially require
Washington substantive requirements. reconstruction.
If an existing NWP is not listed in this We are proposing to move the
Seattle District Engineer, ATTN: section of the preamble, we are provisions regarding the removal of
CENWS–OP–RG, P.O. Box 3755, Seattle, proposing to reissue the NWP without accumulated sediments from outfall and
WA 98124–3755. changing it. intake structures and associated canals
West Virginia We are proposing to modify many of from the current NWP 7 (which
the NWPs so that they follow a standard authorizes construction of outfall and
Huntington District Engineer, ATTN: format: A description of activities the associated intake structures) to
CELRH–OR–F, 502 8th Street, NWP authorizes, followed by a paragraph (b) of the proposed NWP 3.
Huntington, WV 25701–2070. description of activities the NWP does The 200 foot linear limit for the removal
not authorized (if applicable). Any pre- of accumulated sediments in existing
Wisconsin construction notification requirements NWP 3 would not apply to situations
St. Paul District Engineer, ATTN: are provided in a separate paragraph. where sediments are blocking or
CEMVP–OP–R, 190 Fifth Street East, St. Any ‘‘notes’’ for the NWP are provided restricting outfall or intake structures, or
Paul, MN 55101–1638. at the end of the NWP. In many NWPs to maintenance dredging to remove
we are proposing to remove explicit accumulated sediments from canals
Wyoming references to the NWP regulations or associated with outfall and intake
general conditions, to simplify the text structures. Pre-construction notification
Omaha District Engineer, ATTN: of those NWPs since the regulations and is required for all activities authorized
CENWO–OD–R, 106 South 15th Street, general conditions apply to all NWPs under paragraph (b) of this NWP. The
Omaha, NE 68102–1618. that authorize activities addressed by a proposed changes to NWP 3 will
District of Columbia particular provision. For example, consolidate within a single NWP the
general condition 3 requires that authorization for removal of
Baltimore District Engineer, ATTN: activities in spawning areas during accumulated sediments from existing
CENAB–OP–R, P.O. Box 1715, spawning season be avoided to the structures and from canals associated
Baltimore, MD 21203–1715. maximum extent practicable. This with intake and outfall structures.
To simplify the text of this NWP, we environment. In the text of this NWP, mitigation for such impacts, if
are proposing to remove the explicit we are proposing a definition of necessary, to ensure that the utility line
references to the ‘‘water quality’’ and ‘‘exploratory trenching.’’ We are also activity results in minimal individual
‘‘management of water flows’’ general proposing to modify this NWP to and cumulative adverse effects on the
conditions, although these general authorize the construction of temporary aquatic environment.
conditions still apply. We are also pads used for survey activities, provided We are also proposing to simplify the
proposing to add language to paragraph the discharge does not exceed 25 cubic PCN thresholds for this NWP, by
(c), to clarify that if temporary fills, yards. The construction of temporary requiring notification only for those
structures, or work are required to pads is often necessary to provide utility line activities that require a
conduct the maintenance activity, then proper levels for equipment used for section 10 permit or that involve
separate authorization may be required. core sampling. discharges of dredged or fill material
For example, it may be necessary to NWP 7. Outfall Structures and resulting in the permanent or temporary
discharge dredged or fill material into Associated Intake Structures. (Cat 2) We loss of greater than 1⁄10 acre of waters of
waters of the United States to construct are proposing to change the title of this the United States.
a cofferdam, so that the maintenance NWP to more clearly describe what it We are proposing to redesignate Note
activity can be completed. The authorizes. As discussed in the section 3 as Note 1, and move the first part of
authorization for the temporary fills, on the proposed changes to NWP 3, we the former Note 1 to the main text of
structures, or work may be provided by are proposing to remove the provisions NWP 12. The second part of former Note
NWP 33, Temporary Construction, regarding the removal of accumulated 1 would become Note 2 of the proposed
Access, and Dewatering. We are sediments from outfall and intake modification of NWP 12.
proposing to modify the notification structures and associated canals, and NWP 13. Bank stabilization. (Cat 2)
provision of this NWP to require place them in paragraph (b) of NWP 3. We are proposing to modify this NWP
information about original design This proposed change will simplify to clarify that district engineers may
capacities and configurations of NWP 7, and the removal of accumulated authorize bank stabilization activities
structures and other features where sediments may be authorized by NWP 3 longer than 500 linear feet, or that result
maintenance dredging is proposed. That instead. in the discharge of more than one cubic
provision was adapted from the NWP 8. Oil and Gas Structures on the yard of material per running foot below
requirements for the current NWP 7 and Outer Continental Shelf. (Cat 1) We are the plane of the ordinary high water
will allow the district engineer to ensure proposing to change the title of this mark or high tide line. Bank
compliance with the requirement that NWP to more clearly articulate what it stabilization activities that exceed either
limits the removal of sediment to the authorizes. We are also proposing to of these thresholds require pre-
minimum necessary to restore the modify this NWP to require pre- construction notification. In response to
waterway to its approximate dimensions construction notification for all PCNs, district engineers can issue
when the structure was built. activities, to allow district engineers to written waivers of these limits provided
NWP 4. Fish and Wildlife Harvesting, review potential effects on navigation the proposed activities will result in
Enhancement, and Attraction Devices and national security. Requiring PCNs minimal individual and cumulative
and Activities. (Cat 2) We are proposing for all activities will also provide adverse effects on the aquatic
to remove the text authorizing shellfish district engineers the opportunity to environment.
seeding, since that activity would be review compliance with fairway We are also proposing to modify this
authorized by proposed NWP D (if the regulations, and exercise discretionary NWP by requiring PCNs for bank
activity is an existing commercial authority where limits of shipping stabilization activities that involve
shellfish aquaculture operation) or NWP safety fairways or traffic separation discharges of dredged or fill material
27 (if it is conducted for restoration schemes have not been designated or into special aquatic sites, so that district
activities). where changes may occur. engineers can authorize those activities
NWP 5. Scientific Measurement NWP 12. Utility Line Activities. (Cat 2) if they determine that the individual
Devices. (Cat 2) We are proposing to We are proposing several modifications and cumulative adverse effects on the
remove the PCN requirement for to this NWP. For this proposed aquatic environment are minimal. This
discharges of 10 to 25 cubic yards for modification of this NWP, the 1⁄2 acre will replace the current prohibition
the construction of small weirs and limit still applies to each single and against the placement of materials in
flumes, however, we would still retain complete project, as defined at 33 CFR any special aquatic site, including
the 25 cubic yard limit for such 330.2(i) and the ‘‘Definitions’’ section of wetlands. In some circumstances, it may
construction. Division engineers can the NWPs. be more beneficial to the watershed to
regionally condition this NWP to To reduce duplication in the NWPs, stabilize eroding banks, even though
require PCNs for certain activities, we are proposing to modify this NWP by small amounts of fringe wetlands or
including discharges that exceed a removing the provision for the mudflats may be impacted by the bank
specified threshold for the construction construction of access roads. Permanent stabilization activity. District engineers
of small weirs and flumes, where or temporary access roads may be will exercise discretionary authority to
necessary to ensure minimal adverse authorized by NWPs 14 or 33, require an individual permit if the
effects. respectively, or by individual permits or proposed work would result in more
NWP 6. Survey Activities. (Cat 2) We regional general permits. As a result of than minimal adverse effects to special
are proposing to add exploratory this proposed change, Note 2 of the aquatic sites.
trenching to the list of examples of current NWP 12 would be removed. We are proposing to remove the
activities authorized by this NWP, as We are proposing to move the term provision requiring that the ‘‘activity is
well as a requirement to restore the that requires mitigation for permanent part of a single and complete project’’,
trenched area to its pre-construction adverse effects to the functions and since that requirement applies to all
elevations upon completion of the work. services of waters of the United States NWPs. The phrase ‘‘single and complete
District engineers have used this NWP to paragraph (g) of the ‘‘mitigation’’ project’’ is defined at 33 CFR 330.2(i)
to authorize exploratory trenching, with general condition (GC 20). District and the ‘‘Definitions’’ section of the
minimal adverse effects on the aquatic engineers may require compensatory NWPs. In place of the general statement
that the NWP may not be used to NWP 17. Hydropower Projects. (Cat 1) EPA, U.S. FWS and Office of Surface
channelize a water of the United States, We are proposing to rearrange the text Mining (OSM) on February 8, 2005. It is
we are also proposing to clarify that of this NWP, without modifying any of a collaborative process in which the
NWP 13 does not authorize stream its terms or its scope. Surface Mining Control and
channelization activities. NWP 18. Minor Discharges. (Cat 2) To Reclamation Act authority chooses to be
NWP 14. Linear Transportation enhance protection of the aquatic the lead agency in coordinating
Projects. (Cat 1) We are proposing to environment, we are proposing to interagency review of applications for
restructure this NWP to make it easier modify this NWP by applying the 1⁄10 surface coal mining operations, while
to understand, but the general scope of acre limit to all losses of waters of the preserving the authorities and
authorized activities is unchanged. The United States, not just special aquatic responsibilities of each agency for
acreage limits and PCN thresholds are sites. This proposed change will also permit decisions. This should result in
the same as before. In the first paragraph help simplify this NWP. We are also concurrent reviews by the agencies,
of this NWP, we are proposing to proposing to eliminate the second reduce duplication, and allow for joint
replace the word ‘‘crossings’’ with sentence of paragraph (b) of this NWP, pre-application and public meetings and
‘‘projects,’’ to be consistent with the title since the concepts in that sentence are joint site visits. To date at least one state
of this NWP. already addressed in the definition of (Ohio) has initiated an integrated permit
We are proposing to add a new ‘‘loss of waters of the United States.’’ process, and several other states, such as
condition to this NWP, to limit stream We are proposing to remove the text Washington, are having discussions.
channel modifications to the minimum requiring a delineation of special This NWP is used to provide section
necessary to construct or protect linear aquatic sites, since it will be addressed 404 authorization for surface coal
transportation projects. We are also in paragraph (b)(4) of the ‘‘pre- mining activities that have also been
proposing to add language clarifying construction notification’’ general authorized by the Office of Surface
that NWP 14 does not authorize condition (GC 27). We are also Mining (OSM) or states with approved
temporary construction, access, and proposing to remove the language programs under Title V of the Surface
dewatering activities; those activities relating to the requirement that the Mining Control and Reclamation Act of
may be authorized by NWP 33. That discharge be part of a single and 1977 (SMCRA). One of the objectives of
language is intended to support our complete project, since that requirement NWP 21 is to reduce duplication
objective to reduce duplication in the applies to all NWPs. between the SMCRA and Section 404
NWP 19. Minor Dredging. (Cat 1) We permitting processes when authorizing
NWPs, since NWPs 14 and 33 can be
are proposing to remove the phrase ‘‘as surface coal mining projects. In previous
combined to authorize single and
part of a single and complete project,’’ versions of NWP 21, there has not been
complete linear transportation projects
since that requirement applies to all a limit on either the acreage or linear
that involve temporary construction
NWPs and it is not necessary to include feet of waters and streams that could be
impacts, provided there is compliance
that phrase in the text of this NWP. impacted. This was based partly on the
with the ‘‘use of multiple nationwide NWP 21. Surface Coal Mining belief that the analyses and
permits’’ general condition (GC 24). Operations. (Cat 1) We are proposing to environmental protection performance
We are proposing to remove the reissue NWP 21 to authorize discharges standards required by SMCRA, in
explicit requirement that the PCN of dredged or fill material into waters of conjunction with PCN review, are
include a compensatory mitigation the United States associated with generally sufficient to ensure that NWP
proposal. The compensatory mitigation surface coal mining operations such as 21 activities result in minimal
requirements for the NWPs are contour mining, mountaintop mining, individual and cumulative adverse
addressed in the ‘‘mitigation’’ general and area mining. While surface coal effects on the aquatic environment.
condition (GC 20). mining operations occur throughout the Under SMCRA requirements, surface
To simplify this NWP, we are also United States, the majority of mines that coal mine operators must minimize
proposing to remove other redundant create excess spoil material are located adverse impacts to fish and wildlife
language: (1) The text requiring in the Appalachian coalfields region, habitat and material damage to the
delineations of special aquatic sites to many in steep slope terrains. These hydrologic balance within the project
be submitted with PCNs, which is types of mining frequently result in area. They must also prevent material
addressed by paragraph (b)(4) of the excess spoil material being created that damage to the hydrologic balance in
‘‘pre-construction notification’’ general may not safely be placed back on the surrounding areas. OSM is in the
condition (GC 27); (2) the text requiring mine site. Other permanent impacts process of developing revisions to its
that the width of the fill be limited to may include permanent stream excess spoil disposal rules that would
the minimum size necessary, which is diversions and/or relocations, fill for provide additional protection for
addressed by the ‘‘mitigation’’ general coal processing plants, and coal streams.
condition (GC 20); (3) the references to processing waste areas. Temporary However, in processing PCNs for
the ‘‘management of water flows’’ and impacts to waters of the United States NWP 21, the Corps does not rely solely
‘‘water quality’’ general conditions; and frequently include temporary stream on the SMRCA process to ensure
(4) the requirement that the linear relocations, road crossings, and compliance with the requirements of the
transportation project be a single and sediment ponds. Surface coal mining Clean Water Act (CWA). Additional
complete project, since that requirement activities may also involve disturbances measures, such as compensatory
applies to all NWPs (see 33 CFR to stream channels. Coal deposits mitigation to offset losses of aquatic
330.2(i)). underlie many streams at shallow resource functions, are often needed to
NWP 16. Return Water From Upland depths and mining activities routinely ensure that NWP 21 activities result in
Contained Disposal Areas. (Cat 1) We divert and relocate watercourses to minimal individual and cumulative
are proposing to rearrange the text of remove the coal. adverse effects on the aquatic
this NWP so that it will be consistent An integrated permit processing environment. The SMCRA process is
with the format of the other NWPs. We procedure is envisioned by the Joint used to identify where surface coal
are not proposing any changes to the Procedures Framework Memorandum of mining activities will occur, and in
terms of this NWP. Understanding signed by the Corps, U.S. Appalachia the SMCRA process is used
to identify the number and location of in minimal individual and cumulative the term addressing vessel disposal in
valley fills. The PCN process is used to adverse effects on the aquatic waters of the United States to the
determine what compensatory environment. Further guidance on ‘‘Note’’ at the end of the NWP. We are
mitigation is needed to satisfy the compensatory mitigation for impacts to proposing to clarify that vessel disposal
404(b)(1) Guidelines and ensure that aquatic resources resulting from surface in waters of the United States requires
individual and cumulative impacts are coal mining activities was issued by the separate authorization, if a Corps permit
minimal. While activities performed to Corps on May 7, 2004. is required.
satisfy SMCRA requirements may be However, we have continued to hear NWP 23. Approved Categorical
considered in determining concerns from some stakeholders about Exclusions. (Cat 1) We are proposing to
compensatory mitigation requirements the lack of an acreage limit for NWP 21. modify this NWP by reorganizing the
under Section 404, there is no In response, we are seeking comment on text to make it easier to read. We are
presumption that these activities by the need for an acreage, or other type, proposing to add the phrase ‘‘including
themselves are sufficient. Through an of limit for this NWP. Commenters pre-construction notification
April 1999 Memorandum of should address the appropriate requirements’’ to paragraph (c) of this
Understanding (MOU) signed by the scientific and environmental basis for NWP to clarify that some activities
COE, EPA, OSM, FWS, and the West determining whether there is a need for eligible for NWP authorization may
Virginia Department of Environmental a limit, and discuss types of possible require submission of PCNs to district
Protection (WVDEP), the agencies limits (e.g., acreage or stream length engineers prior to commencing the
agreed to conduct joint permit impacted, watershed drained). activity. We are also proposing to
application reviews for surface coal Commenters should also indicate change the Corps office designation
mining projects in West Virginia which whether it is appropriate to maintain or from CECW–OR to CECW–CO to reflect
impacted streams draining watersheds modify the current notification organizational changes at Corps
of 250 acres or greater and these requirements if a limit is added, since Headquarters.
activities were required to obtain these were adopted partially in response In the ‘‘Notification’’ provision, we
individual permits. Partly as a result of to concerns about the lack of a limit. are proposing to add a sentence to
the MOU, many surface coal mining The terms and conditions of NWP 21, explain that there are Regulatory
projects in the Huntington District are in conjunction with SMCRA Guidance Letters (RGLs) that list the
now authorized under individual requirements, the PCN review process, approved activities that require
permits. The MOU was rescinded after and any compensatory mitigation submission of PCNs. Prospective
the Mountaintop Mining/Valley Fill required under general condition 20, permittees should review the
Programmatic Environmental Impact will ensure that this NWP authorizes appropriate RGL to determine if an
Statement was finalized. only those activities with minimal approved activity requires submittal of
In 2002, the Corps attempted to individual and cumulative adverse a PCN to the district engineer prior to
address concerns about the impacts of effects on the aquatic environment. beginning the activity. The current
NWP 21 by requiring that all NWP 21 We are proposing to remove the text activities that have been approved (i.e.,
projects, of any size, file a PCN with the stating that the district engineer may the Chief of Engineers has concurred
Corps and wait for written authorization require a bond to ensure the success of that they are categorically excluded) for
from the Corps before beginning work. mitigation, since the district engineer use of NWP 23 are provided in RGL 05–
In contrast, most NWPs allow the has the discretion to impose that 07.
project sponsor to begin work 45 days requirement on any NWP activity where We are also proposing to add a ‘‘Note’’
after filing a complete PCN, unless the mitigation is required. As with the to this NWP, to clarify that agencies may
sponsor has heard explicitly from the current NWP 21, compensatory submit requests to the Office of the
Corps that the work is not authorized. mitigation for impacts resulting in the Chief of Engineers to include additional
To further strengthen its process for loss of aquatic resources that is required activities as approved for authorization
reviewing PCNs, on March 19, 2004, the by OSM or the state may be considered under NWP 23. Upon receipt of such
Corps issued a standard operating when determining compensatory requests, we will conduct a public
procedure (SOP) for NWP 21 processing. mitigation for NWP 21 activities. In notice and comment process to
This SOP was developed to improve accordance with our proposed revisions determine whether the proposed
consistency, and to enhance to the ‘‘pre-construction notification’’ activities are in fact categorically
predictability and certainty. The general condition (GC 27), all NWP excluded. Additional activities
procedures in the SOP make the NWP PCNs require submission of delineations approved for use of NWP 23 would be
21 PCN review process similar to the of waters of the United States, including announced in an RGL, which would be
individual permit review process, such special aquatic sites (see paragraph posted at the internet address indicated
as the requirement for agency (b)(4) of that general condition). in the ‘‘Note.’’
coordination on all proposed NWP 21 Division engineers can regionally NWP 24. Indian Tribe or State
activities. The SOP lists the types of condition this NWP to impose an Administered Section 404 Programs.
information needed by the Corps to acreage or linear foot limit or other (Cat 2) We are proposing to modify this
make minimal impact determinations special conditions, if there are concerns NWP to include Indian Tribes. Section
for proposed NWP 21 activities. for the aquatic environment in a 518(e) of the Clean Water Act authorizes
Functional assessments appropriate to particular district, watershed, or other the U.S. EPA Administrator to treat an
the region in which a proposed NWP 21 geographic region. Indian Tribe as eligible for assuming the
activity is located are required to assess NWP 22. Removal of Vessels. (Cat 2) section 404 permit program. Currently,
stream quality and wetland impacts. We are proposing rearrange the text of only two States (Michigan and New
The SOP also discusses requirements for this NWP so that it is in a format similar Jersey) and no Indian Tribes are
compensatory mitigation projects, to the other NWPs. We are also approved to administer the section 404
including monitoring requirements and proposing to require a PCN if the vessel program, and we are proposing to add
financial assurances, in cases where removal activity involves discharges of a note to list those states. We are also
compensatory mitigation is necessary to dredged or fill material into special proposing to move the text clarifying
ensure that an NWP 21 activity results aquatic sites. We are proposing to move that certain structures in navigable
waters do not require section 10 permits restoration, establishment, and the permittee must show that the
to a note. enhancement activities authorized by activity qualifies for reversion by
NWP 27. Aquatic Habitat Restoration, this NWP are likely to provide providing documentation showing that
Establishment, and Enhancement ecosystem services that benefit human a prior agreement has expired, or that
Activities. (Cat 2) We are proposing to populations. Values of aquatic resources the reversion activity is otherwise
change the title of this NWP to more are difficult to describe objectively, and authorized. This documentation may
accurately reflect the types of activities are usually dependent on the point of consist of either: (1) A copy of the
it authorizes, since aquatic habitats view of the person making the original wetland enhancement,
other than streams and wetlands can be assessment. Values may relate to either restoration, or establishment agreement
restored, established, or enhanced by monetary or non-monetary measures, between the landowner and the NRCS,
activities authorized by this NWP. The whereas services can be described in FSA, FWS, or appropriate designated
term ‘‘creation’’ would be replaced with physical terms that are easier to evaluate state cooperating agency that shows the
‘‘establishment,’’ to conform with the and address, where necessary, in NWP expiration date, if the agreement has an
terminology in Regulatory Guidance authorization letters and special permit expiration date; (2) the NRCS
Letter 02–02 for wetland project types conditions. documentation for voluntary wetland
and the definition in the Council on We are proposing to modify the enhancement, restoration, and
Environmental Quality’s April 2006 reversion provision of this NWP by establishment actions demonstrating
report entitled ‘‘Conserving America’s adding the Farm Service Agency (FSA) compliance with NRCS regulations; or
Wetlands 2006: Two Years of Progress and appropriate designated state (3) a copy of the SMCRA permit issued
Implementing the President’s Goal.’’ We cooperating agencies of the U.S. Fish by the OSM or applicable state agency.
are proposing to modify this NWP to and Wildlife Service, Natural Resources We are proposing to modify the
prohibit the conversion of natural Conservation Service, FSA, National ‘‘Note’’ at the end of this NWP, by
wetlands to another aquatic use, but the Marine Fisheries Service, and National removing the first sentence. Since the
relocation of non-tidal wetlands on the Ocean Service to the list of agencies that first paragraph of this NWP states that
project site would still be authorized may execute wetland restoration, it authorizes only those activities that
provided certain conditions are met. In enhancement, or establishment result in a net increase in aquatic
addition, we are proposing to add agreements with landowners. This NWP resource functions and services (except
shellfish seeding to the list of examples authorizes discharges of dredged or fill for authorized reversion activities), it is
of authorized activities, since shellfish material in waters of the United States redundant to restate this requirement in
seeding is used to restore oyster for the reversion of wetlands that were the Note. We are also proposing to
populations. restored, enhanced, or established on remove the text stating that
We are also proposing to modify this prior-converted cropland that has not compensatory mitigation is required for
NWP to require permittees to submit been abandoned or on uplands, in impacts to waters of the United States
copies of: Binding wetland accordance with a binding agreement caused by the authorized construction
enhancement, restoration, or between the landowner and NRCS, FSA, of compensatory mitigation projects,
establishment agreements; NRCS FWS, or their designated state including mitigation banks and in-lieu
documentation for voluntary wetland cooperating agencies. There may be fee programs.
restoration, enhancement, or cases where the designated state In addition, we are proposing to
establishment actions; or Surface cooperating agency has taken over the remove the last sentence of the ‘‘Note,’’
Mining Control and Reclamation Act operational aspects of executing which states that NWP 27 can be used
(SMCRA) permits issued by the Office of wetland restoration, enhancement, or to authorize the construction of a
Surface Mining or the applicable state establishment agreements with mitigation bank only when that bank
agency. These documents must be landowners for those federal agencies. has been approved in accordance with
submitted to the district engineer at The Conservation Reserve Enhancement the procedures in the interagency
least 30 days prior to commencing Program (CREP) administered by FSA mitigation banking guidance issued on
activities in waters of the United States may involve wetland restoration, November 28, 1995 (60 FR 58605). This
authorized by this NWP. Standard PCNs enhancement, and/or establishment provision is contrary to the 1995
are not required for activities conducted activities, and this program may be guidance, which states that a bank
pursuant to one of these instruments delegated to state agencies for sponsor may proceed, at his or her own
(except reversion activities; see below), implementation. A CREP contract risk, with the construction of the
but the submission of these already between the landowner and the mitigation bank after receiving the
prepared documents will allow the administering agency may be for a term Department of the Army permit, if the
Corps to ensure that the conditions for of 10 to 15 years. We are also proposing mitigation banking instrument has not
use of the NWP have been satisfied, to add the phrase ‘‘or on uplands’’ to the yet been approved.
with minimal burden to the project third sentence of this paragraph, since NWP 29. Residential Developments.
proponent. wetlands may be established on uplands (Cat 2) We are proposing to combine
We are proposing to replace ‘‘values’’ as a result of an agreement between the NWP 29 and the provisions of NWP 39
with ‘‘services’’ because ecosystem landowner and another government pertaining to residential developments
services provide more objective agency. into a single nationwide permit that
measures of the importance of aquatic We are also proposing to modify this authorizes single unit residences (e.g.,
resource functions to human NWP by moving the requirement to single family homes) and multiple unit
populations. Services are the benefits notify the district engineer prior to residential developments. In other
that humans derive from the functions conducting any reversion activities to words, we are proposing that NWP 29
performed by wetlands and other the ‘‘Notification’’ provision. The authorize both single unit and multiple
aquatic resources. Examples of wetland ‘‘Notification’’ provision requires the unit residential developments while
services include flood damage permittee or appropriate Federal or NWP 39 would authorize commercial
reduction, water quality improvement, State agency to notify the district and institutional developments because
and opportunities for viewing birds and engineer in accordance with general residential developments differ from
other wildlife. Aquatic resource condition 27. For reversion activities, commercial and institutional
developments. In addition, residential district engineers may require the landowners have an interest in
developments are often subject to establishment and maintenance of attracting and supporting various
different state and local requirements. riparian areas next to streams and other species of wildlife, and can do these
We are seeking comments on the open waters. We are proposing to activities without causing more than
appropriateness of having separate eliminate the text defining the acreage minimal adverse environmental effects.
NWPs to authorize residential loss of waters of the United States, since We are also proposing to remove the
developments and commercial and there is a definition of ‘‘loss of waters phrase ‘‘[t]he repair, maintenance or
institutional developments. of the United States’’ in the replacement of existing water control
We are proposing to require PCNs for ‘‘Definitions’’ section of the NWPs. structures; the repair or maintenance of
all activities authorized by this NWP, to We are also proposing to eliminate the dikes; and’’ since those activities may be
ensure that those activities result in condition restricting the use of NWP 29 authorized by NWP 3. In its place, we
minimal individual and cumulative to those individuals constructing single are proposing to add an explanatory
adverse effects to the aquatic family homes for personal use, as well ‘‘Note’’ at the end of the NWP. For the
environment and other public interest as the definitions for ‘‘individual’’ and reasons provided in the preamble
review factors, such as floodplain ‘‘parcel of land.’’ We believe that it is discussion of the definition of ‘‘riparian
values. inappropriate to establish different areas,’’ we are proposing to replace the
The proposed acreage limit is 1⁄2 acre, permits for single and multiple phrase ‘‘vegetated buffers’’ with
and that acreage limit includes any residential development because the ‘‘riparian areas.’’
losses of waters of the United States impacts to the aquatic environment are NWP 31. Maintenance of Existing
resulting from filling or excavating determined by the permit conditions Flood Control Facilities. (Cat 1) We are
stream beds. We are also proposing to themselves (e.g., 1⁄2 acre limit) and not proposing to remove the last sentence of
impose a 300 linear foot limit on the the type of residential development or the first paragraph of this NWP, which
loss of stream bed. For intermittent and the type of permittee. Each proposed discussed certain types of maintenance
ephemeral stream beds, a district NWP 29 activity will be evaluated activities that do not require section 404
engineer can waive the 300 linear foot through the PCN process to determine if permits, since that issue is more
limit on a case-by-case basis, if he the activity qualifies for NWP appropriately addressed through the
determines that the adverse effects on authorization. Corps current definition of ‘‘discharge of
the aquatic environment are minimal, This NWP can be used to authorize dredged material’’ at 33 CFR 323.2(d).
individually and cumulatively. These discharges of dredged or fill material We are proposing to add ‘‘levees’’ to
waivers must be issued in writing by the into non-tidal waters of the United the list of features that can be
district engineer. The 300 linear foot States (other than non-tidal wetlands maintained through the authorization
limit cannot be waived for perennial adjacent to tidal waters) to construct provided by this NWP, since levees are
stream beds. building foundations and pads, as well often integral parts of flood control
The proposed modification of this as attendant features. The examples of facilities. Discharges of dredged or fill
NWP provides more protection of the attendant features listed in this NWP material in waters of the United States
aquatic environment. The proposed were taken from the current NWP 39. for levee maintenance may be
NWP can be used in a narrower scope The scope of applicable waters is the authorized by this NWP, provided the
of waters than the current NWP 29. The same as the current NWP 39. We are levees are included in the maintenance
current NWP 29 authorizes discharges proposing to retain the residential baseline.
of dredged or fill material into all non- subdivision provision from the current NWP 32. Completed Enforcement
tidal waters of the United States, NWP 39. Actions. (Cat 1) We are proposing to
including those non-tidal wetlands that In response to a PCN, the district eliminate the phrase ‘‘For either (i), (ii),
are adjacent to tidal waters. The engineer may impose special conditions or (iii) above,’’ from the last paragraph
proposed modification of NWP 29 does on a case-by-case basis to ensure that of this NWP. This phrase is unnecessary
not authorize discharges of dredged or the adverse effects on the aquatic because permittees must comply with
fill material into non-tidal wetlands environment are minimal or exercise all applicable terms and conditions of
adjacent to tidal waters. The current discretionary authority to require an any NWP. We are also proposing to
NWP 39 authorizes both single unit and individual permit for the work. The remove the phrase ‘‘or fails to complete
multiple unit residential developments issuance of this NWP, as with any NWP, the work by the specified completion
with a ⁄2 acre limit for discharges of allows for the use of discretionary date’’ since the completion date should
dredged or fill material into non-tidal authority when valuable or unique be specified in the court decision,
waters, except for non-tidal wetlands aquatic areas may be affected by these consent decree, or judicial/non-judicial
adjacent to tidal waters. In effect, the activities. settlement agreement.
current NWP 29 is being eliminated, NWP 30. Moist Soil Management for NWP 33. Temporary Construction,
and we are proposing to replace it with Wildlife. (Cat 2) We are proposing to Access, and Dewatering. (Cat 1) We are
the provisions of the current NWP 39 modify this NWP by removing the proposing to divide the first sentence of
that authorize single and multiple unit phrase ‘‘performed on non-tidal this NWP into two sentences, to clarify
residential developments. Federally-owned or managed, State- that temporary structures or work in
We are proposing to remove the text owned or managed property, and local navigable waters of the United States or
requiring permittees to minimize on- government agency-owned or managed discharges of dredged or fill material in
and off-site impacts and avoid flooding, property, for’’. Removal of this phase waters of the United States associated
since those requirements are addressed will allow any landowner to use this with construction activities that do not
by the ‘‘mitigation’’ general condition NWP to authorize discharges of dredged require permits from the Corps or the
(GC 20) and the ‘‘management of water or fill material into non-tidal waters of U.S. Coast Guard, as well as those that
flows’’ general condition (GC 9). We are the United States for the purpose of do require and have obtained such
proposing to remove the text requiring managing wildlife habitat and feeding permits, are authorized by this NWP.
the maintenance of vegetated buffers areas. We do not believe this NWP We are also proposing to move the
next to open waters, since paragraph (d) should be restricted to government requirement for a restoration plan from
of general condition 20 states that agencies, since many private the ‘‘pre-construction notification’’
general condition (general condition 13 the United States, or if the proposed stream bed to apply that limit to
of the 2002 NWPs) to the ‘‘Notification’’ boat ramp is greater than 20 feet wide. ephemeral streams. We are proposing to
paragraph of this NWP. The PCN must We are also proposing to remove the allow district engineers to waive the 300
include a restoration plan showing how text prohibiting the use of material that linear foot limit, if the loss of
all temporary fills and structures will be may cause unacceptable chemical intermittent or ephemeral stream bed
removed and the area restored to pre- pollution, since that issue is addressed will have minimal individual and
project conditions. The restoration plan by the ‘‘suitable material’’ general cumulative adverse effects on the
should also describe reasonable condition (GC 6). aquatic environment. These waivers
measures for avoidance and NWP 37. Emergency Watershed must be issued in writing by the district
minimization of adverse effects to Protection and Rehabilitation. (Cat 1) engineer.
aquatic resources. We are proposing to We are proposing to rearrange the text Another modification we are
remove the sentence that states that the of this NWP to conform with the format proposing is to move the requirement to
district engineer will add special of the proposed modified NWPs, but it submit a delineation of waters of the
conditions to ensure minimal adverse will not change the scope of activities United States to paragraph (b)(4) of the
effects, since the addition of special authorized by this NWP. ‘‘pre-construction notification’’ general
conditions where necessary to ensure NWP 38. Cleanup of Hazardous and condition (GC 27). Since we are
minimal adverse effects is a condition of Toxic Waste. (Cat 1) We are proposing proposing to modify this NWP to
all NWPs. to modify this NWP by moving the require PCNs for all activities and
NWP 34. Cranberry Production requirement to submit a delineation of because the ‘‘mitigation’’ general
waters of the United States to paragraph condition (GC 20) requires permittees to
Activities. (Cat 1) We are proposing to
(b)(4) of the ‘‘pre-construction avoid and minimize adverse effects to
rearrange the text of this NWP, to
notification’’ general condition (GC 27). the maximum extent practicable on the
conform with the general format of the
We are also proposing to move the last project site, we are proposing to remove
proposed NWPs, and to eliminate the
sentence of this NWP to a ‘‘Note’’ at the the text requiring submittal of a written
phrase ‘‘provided the activity meets all
end of the NWP. avoidance and minimization statement
of the following criteria:’’ since NWP 39. Commercial and
activities must comply with all terms and a compensatory mitigation proposal
Institutional Developments. (Cat 2) We with the PCN. District engineers will
and conditions of an NWP. We are also are proposing to remove residential
proposing to remove the text requiring review PCNs to ensure that all
developments as an authorized activity practicable on-site avoidance and
PCNs to include delineations of special from this NWP and modify NWP 29 to
aquatic sites, since that requirement is minimization has been accomplished. In
authorize both single unit and multiple response to a PCN, the district engineer
addressed by paragraph (b)(4) of the unit residential developments. We
proposed modification of the ‘‘pre- may require compensatory mitigation to
believe that NWP 39 should be modified ensure that the authorized activity
construction notification’’ general to authorize only commercial and results in minimal adverse
condition (GC 27). institutional developments because environmental effects (see 33 CFR
We are proposing to modify this NWP those types of developments differ from 330.1(e)(3)).
to clarify that an existing cranberry residential developments in a number of We are proposing to remove the text
production operation needs to submit a ways. Commercial and institutional requiring the permittee to establish and
pre-construction notification only once developments are often subject to maintain, to the maximum extent
during the period that this NWP is different state and local requirements practicable, riparian areas next to
valid. The NWP authorization would than residential developments, such as streams and other open waters on the
apply to on-going discharges of dredged storm water management and project site, since this issue is addressed
or fill material into waters of the United infrastructure requirements. Planning by paragraph (e) of general condition 20,
States, provided the 10 acre limit is not and zoning requirements for residential, which applies to all NWPs, including
exceeded. commercial, and institutional NWP 39.
NWP 36. Boat Ramps. (Cat 2) We are developments may also be different, We are proposing to remove the
proposing to modify this NWP to allow which can affect where they are located references to the general conditions
district engineers to issue, on a case-by- in a watershed. We are soliciting relating to water quality and the
case basis after reviewing pre- comments on limiting NWP 39 to management of water flows, since those
construction notifications, waivers to authorizing discharges of dredged or fill general conditions apply, as
the 50 cubic yard limit for discharges of material into waters of the United States appropriate, to all NWPs.
dredged or fill material into waters of to construct or expand commercial and In response to a PCN, the district
the United States to construct a boat institutional developments. engineer may impose special conditions
ramp. We are also proposing to allow We are proposing to modify this NWP on a case-by-case basis to ensure that
district engineers to issue waivers to the to require PCNs for all activities, to the adverse effects on the aquatic
20 foot width limit for boat ramps. ensure that those activities result in environment are minimal or exercise
These waivers can be issued only if, minimal individual and cumulative discretionary authority to require an
after reviewing a pre-construction adverse effects on the aquatic individual permit for the work. The
notification, the district engineer environment and other public interest issuance of this NWP, as with any NWP,
determines that the adverse effects on review factors, such as floodplain allows for the use of discretionary
the aquatic environment and other values. Since PCNs will be required for authority when valuable or unique
factors of the public interest will be all activities authorized by this NWP, aquatic areas may be affected by these
minimal. These waivers must be issued we are proposing to eliminate the activities.
in writing by the district engineer. reporting requirement in paragraph (i) of NWP 40. Agricultural Activities. (Cat
We are proposing to modify this NWP the current NWP 39. For the same 2) We are proposing to modify this NWP
to require pre-construction notification reason, we are also proposing to by eliminating the distinction between
if the proposed boat ramp involves eliminate the ‘‘Note’’ from this NWP. permittees that are U.S. Department of
discharges of more than 50 cubic yards We are also proposing to modify the Agriculture (USDA) program
of dredged or fill material into waters of 300 linear foot limit for the loss of participants and those permittees who
are not USDA program participants. and 40 on a particular site, since district ditch at its originally designed
Participants in USDA programs, as well engineers will receive PCNs for all configuration to qualify for the
as non-participants, are eligible to use activities authorized by this NWP. exemption, since the 404(f)(1)(C)
this NWP for agricultural activities. District engineers will review PCNs for exemption allows discharges of dredged
NRCS would no longer need to those NWPs to ensure that the proposed or fill material into waters of the United
determine the applicability of this NWP work results in minimal individual and States resulting from ditch maintenance
to authorize agricultural activities cumulative adverse environmental activities.
resulting in discharges of dredged or fill effects. Since one of the conditions of this
material into waters of the United NWP 41. Reshaping Existing Drainage NWP states that the centerline of the
States. Ditches. (Cat 2) We are proposing to ditch must remain in approximately the
We are proposing to modify this NWP modify this NWP to clarify that it same place, we do not believe that it is
to require PCNs for all activities, for authorizes only the reshaping of necessary to state that this NWP does
case-by-case review by district engineers drainage ditches constructed in waters not authorize stream relocation projects.
to ensure that those activities result in of the United States where the purpose NWP 42. Recreational Facilities. (Cat
minimal individual and cumulative of reshaping the ditch is to improve 2) We are proposing to simplify this
adverse effects to the aquatic water quality. As a result of this NWP by removing the term which limits
environment and other public interest modification, we are also proposing to its use to those recreational facilities
review factors. remove the sentence which states why that are integrated into the existing
We are also proposing to modify this compensatory mitigation is not required landscape and do not substantially
NWP to authorize the construction of for the activities authorized by this change pre-construction grades or
farm ponds in non-tidal waters of the NWP. deviate from natural landscape
United States, excluding perennial The purpose of this NWP is to contours. That particular term is
streams, where the pond is necessary for encourage landowners who need to problematic in many areas of the United
agricultural production. This NWP maintain drainage ditches constructed States, especially those regions where
would authorize the construction of in waters of the United States to do so the project area for a proposed
farm ponds that do not qualify for the in a manner that benefits the aquatic recreational facility is predominantly
Clean Water Act Section 404(f)(1)(C) environment. The maintenance of a uplands. The construction of
exemption because of the recapture drainage ditch to its current recreational facilities that result in
provision at section 404(f)(2) of the Act. configuration is exempt under Section minimal individual and cumulative
This NWP does not authorize the 404(f)(1)(C) of the Clean Water Act, and adverse effects on the aquatic
construction of ponds on non- does not require a DA permit. This environment should be authorized by
agricultural land, or the construction of exemption does not authorize reshaping this NWP, regardless of the amount of
recreational or ornamental ponds. We of existing drainage ditches, so this changes to pre-construction grades or
are proposing to limit discharges of NWP authorizes reshaping activities natural landscape contours in areas not
dredged or fill material for the that benefit the aquatic environment. subject to regulatory jurisdiction under
construction of farm ponds to non-tidal This NWP was first issued on March 9, Section 404 of the Clean Water Act.
waters, other than perennial streams 2000, (65 FR 12818) to authorize, to the We are also proposing to modify this
and non-tidal wetlands adjacent to tidal extent that a section 404 permit is NWP to require PCNs for all activities,
waters, to ensure that the construction required, the grading of the banks of a so that district engineers will be able to
of the farm pond results in minimal currently serviceable ditch to gentler review proposed recreational facilities
individual and cumulative adverse (shallower) slopes than its current or to ensure that they result in minimal
effects on the aquatic environment. The original configuration. Reshaping a individual and cumulative adverse
construction of ponds in perennial drainage ditch so that it has shallower effects on the aquatic environment.
streams is more likely to cause more side slopes can help improve water We are also proposing to remove the
than minimal adverse effects on the quality by decreasing the velocity of text requiring submission of a
aquatic environment, by disrupting water flowing through the ditch and by compensatory mitigation proposal with
stream geomorphic processes, as well as spreading out water flow over a greater a PCN, since GC 20 addresses
ecological functions of streams. area of soil surface. It should also compensatory mitigation requirements
Since we are proposing to modify this provide more area for plants to become for all NWPs. We are proposing to
NWP to require PCNs for all activities, established and grow within the ditch. remove the text that explicitly requires
we are removing the explicit These changes are likely to help water quality management measures,
requirement to submit a compensatory improve water quality by increasing since such measures may be required by
mitigation plan with the PCN. In water contact with vegetation and soil district engineers for any NWP on a
response to a PCN, the district engineer microbes, to facilitate the removal of case-by-case basis in accordance with
may require compensatory mitigation nutrients and other chemical the ‘‘water quality’’ general condition
(see 33 CFR 330.1(e)(3)) to ensure that compounds through biogeochemical (GC 21).
the authorized work results in minimal processes. Slower water flow rates We are proposing to modify the 300
adverse effects on the aquatic through the ditch should also decrease linear foot limit for the loss of stream
environment. The ‘‘mitigation’’ general erosion, also improving water quality. bed, by applying that limit to ephemeral
condition (GC 20) also addresses We are proposing to remove the streams. We are also proposing to allow
compensatory mitigation requirements prohibition against permanent district engineers to waive the 300
for all NWPs. Any compensatory sidecasting of excavated material into linear foot limit, if the stream bed is
mitigation required for activities waters of the United States, where the intermittent or ephemeral and the
authorized by this NWP that requires excavated material results from the individual and cumulative adverse
section 404 authorization may be ditch reshaping activity. In cases where effects on the aquatic environment are
authorized by this NWP or NWP 27. there are jurisdictional wetlands or minimal. These waivers must be issued
We are proposing to remove the other waters next to the ditch to be in writing by the district engineer.
definition of ‘‘farm tract’’ and the reshaped, this prohibition is likely to This NWP can be used to authorize
conditions limiting the use of NWPs 39 cause many landowners to maintain the the construction of ski areas and golf
courses, as long as those activities result District engineers will review PCNs to in stream gradient and water velocities,
in minimal adverse environmental determine if avoidance and and minimizing turbidity, should be
effects and are in the public interest. We minimization has been accomplished to removed and the prevention or
are also proposing to expand this NWP the maximum extent practicable. reduction of such impacts is more
to authorize playing fields and We are also proposing to remove the appropriately addressed through the
basketball and tennis courts. The text requiring compliance with the NWP general conditions (e.g., GCs 3, 9,
condition prohibiting the use of this ‘‘management of water flows’’ general and 12), as well as the site-specific
NWP to authorize hotels, restaurants, condition (GC 9), since that general review and any case-specific special
stadiums, racetracks, arenas, and similar condition generally applies, as conditions added to NWP
facilities would be retained. District appropriate, to all NWPs. We are authorizations by district engineers. If
engineers will evaluate PCNs to proposing to remove the requirement for the district engineer reviews a PCN and
determine if proposed recreational maintenance excavation to be determines that the proposed mining
facilities are authorized by this NWP. conducted in accordance with an activity will result in more than
In response to a PCN, the district approved maintenance plan, since the minimal adverse effects to stream
engineer may impose special conditions maintenance of an existing stormwater gradient, water velocities, and turbidity,
on a case-by-case basis to ensure that management facility is limited to its he will exercise discretionary authority
the adverse effects on the aquatic original design capacity and therefore it and require an individual permit for the
environment are minimal or exercise is likely to result in minimal adverse activity.
discretionary authority to require an effects to the aquatic environment. We are also proposing to remove the
individual permit for the work. The NWP 44. Mining Activities. (Cat 2) We references to the ‘‘water quality’’ general
issuance of this NWP, as with any NWP, are proposing to simplify this NWP, and condition (GC 21) and the ‘‘management
allows for the use of discretionary modify it to authorize all types of of water flows’’ general condition (GC
authority when valuable or unique mining activities except for coal mining. 9), since those general conditions apply,
aquatic areas may be affected by these Surface coal mining activities may be as appropriate, to all NWPs. We believe
activities. authorized by NWP 21. Other types of that restrictions for hard rock/mineral
NWP 43. Stormwater Management coal mining activities may be authorized mining, including beneficiation and
Facilities. (Cat 2) We are proposing to by the proposed new NWP E (Coal mineral processing, are more
modify this NWP to require PCNs for Remining Activities) or NWP F appropriately addressed through special
the construction or expansion of (Underground Coal Mining Activities). conditions to NWP verifications, or by
stormwater management facilities, but This NWP would continue to authorize regional conditions imposed by division
not for maintenance activities. District aggregate mining and hard rock/mineral engineers.
engineers will review those PCNs to mining activities. We are proposing to In response to a PCN, the district
ensure that proposed activities result in retain the 1⁄2 acre limit for this NWP. engineer may impose special conditions
minimal individual and cumulative Pre-construction notifications are on a case-by-case basis to ensure that
adverse effects on the aquatic required for all activities authorized by the adverse effects on the aquatic
environment and other public interest this NWP, so we do not believe that it environment are minimal or exercise
review factors, including floodplain is necessary to partition the types of discretionary authority to require an
values. waters where certain types of mining individual permit for the work. The
We are proposing to modify the 300 activities can occur. District engineers issuance of this NWP, as with any NWP,
linear foot limit for the loss of stream will review PCNs to ensure that allows for the use of discretionary
bed by applying that limit to ephemeral proposed mining activities will result in authority when valuable or unique
streams. We are also proposing to allow minimal adverse effects on the aquatic aquatic areas may be affected by these
district engineers to waive the 300 environment, individually and activities.
linear foot limit if the stream bed is cumulatively, and will exercise
intermittent or ephemeral and the filling Discussion of Proposed New
discretionary authority if the adverse
and/or excavation of that stream bed Nationwide Permits
effects are more than minimal. This
will result in minimal individual and NWP authorizes only discharges of NWP A. Emergency Repair Activities.
cumulative adverse effects on the dredged or fill material into non-tidal We are proposing to remove paragraph
aquatic environment. These waivers waters of the United States, and does (iii) from the current NWP 3 and issue
must be issued in writing by the district not authorize discharges into non-tidal a new NWP to authorize emergency
engineer. wetlands adjacent to tidal waters. repair activities. This will simplify NWP
In addition, we are proposing to The PCN must include a copy of the 3, and limit that NWP to routine
remove the requirement for prospective reclamation plan, if reclamation is maintenance activities. This proposed
permittees to submit maintenance plans, required by other statutes. We are NWP requires PCNs for all activities.
since the NWP limits maintenance proposing to remove the requirement to The PCN must be submitted within 12
activities to restoring the stormwater submit an avoidance and minimization months of the date of the damage. This
management facility to its original statement, because the ‘‘mitigation’’ 12 month period is intended to establish
design capacity. We are also proposing general condition (GC 20) requires that the damage or loss of upland
to remove the requirement to submit avoidance and minimization of adverse occurred in the recent past, and that the
compensatory mitigation proposals with effects to waters of the United States to proposed activity is not intended to
PCNs, since mitigation requirements are the maximum extent practicable on the reclaim lost lands due to gradual
addressed by GC 20. General condition project site. We are proposing to remove erosion processes. The work must be
20 requires permittees to avoid and the references to the general conditions completed within two years of
minimize impacts to waters of the relating to the ‘‘shellfish beds’’ and submitting the PCN.
United States on the project site to the ‘‘spawning areas’’ general conditions The proposed NWP also authorizes
maximum extent practicable, so we are (GC 6 and GC 3), since those conditions bank stabilization activities to protect
proposing to remove the requirement for apply, to the extent appropriate, to all the restored uplands, as long as the bank
submitting an avoidance and NWPs. We believe that the terms stabilization activity does not extend
minimization statement with the PCN. requiring measures to prevent increases beyond the ordinary high water mark
(OHWM) that existed before the material into certain types of ditches Committee (IAC) was convened to
damaging event occurred. Bank and canals that are determined to be implement Section 16 of the Pipeline
stabilization activities that extend waters of the United States. The Safety Improvement Act of 2002 (see 49
beyond the pre-event OHWM may be proposed NWP will allow a landowner U.S.C. 60133). The proposed NWP will
authorized by NWP 13, a regional to return his or her land to its prior help satisfy the requirements of this act.
general permit, or an individual permit. condition, but only in those cases where The environmental compliance and
We are proposing to replace the 50 the ditches or canals meet all three enforcement programs of the agencies
cubic yard limit for minor dredging to criteria specified in the NWP. To qualify participating in the interagency
remove obstructions from the adjacent for this NWP, those ditches and canals committee would also help ensure
waterbody with a condition limiting must be: (1) Constructed in uplands, (2) compliance with environmental statutes
minor dredging to the minimum receive water from another water of the such as the Endangered Species Act and
necessary to restore bottom contours of United States, and (3) divert water to Section 106 of the National Historic
the waterbody to their pre-event state. another water of the United States. Preservation Act.
District engineers will review PCNs These three criteria will limit the use of Although many of these activities
involving minor dredging for emergency this NWP to those ditches and canals could be authorized by NWPs 3 or 12,
repair activities, to ensure that the that generally provide few aquatic we are proposing to issue this NWP so
authorized work will result in minimal resource functions. This proposed NWP that a time-sensitive inspection and/or
adverse environmental effects. We are does not authorize discharges of repair that meets PHP criteria can
also proposing to add a condition which dredged or fill material into ditches or proceed without submitting a PCN to
states that project proponents may be canals that were constructed in waters the district engineer. To ensure that this
required to obtain separate DA of the United States, such as streams. NWP would allow these inspections and
authorization, if temporary structures or We are proposing a one acre limit for repairs to proceed in a timely manner,
discharges are necessary to conduct the this NWP. We believe the one acre limit division engineers are not authorized to
rehabilitation or repair activity. Separate will authorize those activities that have regionally condition this NWP. This
DA authorization would be required for minimal adverse effects on the aquatic proposed NWP requires project
temporary structures installed in environment, individually and proponents to: (1) Participate in PHP’s
navigable waters of the United States cumulatively. Division engineers can early notification program, (2) utilize
and/or temporary discharges of dredged regionally condition this NWP to lower the Pipeline Repair and Environmental
or fill material into waters of the United the acreage limit or otherwise limit its Guidance System (PREGS), (3) follow
States that are necessary to conduct use. We are proposing to require a PCN the agreed upon Recommended Best
emergency repair activities. The if the dredged or fill material will be Management Practices (RMBPs), and (4)
separate DA authorization may be discharged into more than 500 linear submit post-construction reports within
provided by NWP 33, a regional general feet of ditch or canal. This proposed 7 days of completing the work via
permit, or an individual permit. NWP is limited to activities that only PREGS. District engineers can monitor
In the ‘‘Note’’ at the end of this NWP, require section 404 authorization. An the pipeline inspection and/or repair
we are proposing to modify text taken individual permit, regional general activity and the use of this NWP
from paragraph (iii) of NWP 3 to clarify permit, or another NWP would be through the post-construction reporting
that restoring uplands up to the OHWM needed to authorize discharges of in PREGS to ensure that the NWP
in non-tidal waters or the high tide line dredged or fill material into ditches and authorizes activities that have minimal
in tidal waters after a storm, flood, or canals that are determined to be individual and cumulative adverse
other discrete event does not require a navigable waters of the United States effects on the aquatic environment.
section 404 permit. If discharges of under section 10 jurisdiction. Suspension or revocation of this NWP
dredged or fill material to restore We are seeking comments on this may occur only if the division engineer
uplands lost as a result of a discrete proposed new NWP, including its terms has formally determined, in accordance
event occur landward of the OHWM or and conditions, such as the proposed with the procedures at 33 CFR 330.5(c),
high tide line, and there are no one acre limit. that the NWP would result in more than
jurisdictional waters or wetlands NWP C. Pipeline Safety Program minimal adverse environmental effects,
landward of the OHWM or high tide Designated Time Sensitive Inspections either individually or cumulatively,
line, a section 404 permit is not required and Repairs. We are proposing a new within a particular district, watershed,
because there would be no discharge of NWP to authorize the inspection, repair, or other geographic region. District
dredged or fill material into waters of rehabilitation, or replacement of any engineers must follow the procedures at
the United States. In response to a PCN, currently serviceable structure or fill for 33 CFR 330.5(d) to suspend or revoke a
the district engineer will determine, on pipelines that are determined to be case-specific authorization under this
a case-by-case basis, the location of the time-sensitive in accordance with the NWP.
OHWM and the high tide line. In the Pipeline and Hazardous Materials Safety The Pipeline and Hazardous Materials
‘‘Note,’’ we are also proposing to Administration’s Pipeline Safety Safety Administration and the IAC
include a reference to 33 CFR 328.5, Program (PHP), including its criteria at developed PREGS. Participating
which addresses changes in limits to 49 CFR parts 192 and 195. This NWP pipeline operators and agencies have
waters of the United States. would authorize time-sensitive pipeline access to PREGS. This system will
In response to a PCN, the district inspection, repair, rehabilitation, or provide early notification to
engineer can exercise discretionary replacement activities in all waters of participating agencies for upcoming
authority and require an individual the United States, including navigable pipeline inspection and repair activities.
permit if the proposed activity will waters. The RBMPs have been developed
result in more than minimal adverse The proposed NWP would through the IAC to address habitat and
effects on the aquatic environment, significantly improve a participating resource issues at the national level.
individually and cumulatively. pipeline operator’s ability to complete These RBMPs apply to pipeline
NWP B. Discharges into Ditches and inspection and repair activities, and inspection and repair activities, as well
Canals. We are proposing a new NWP reduce environmental impacts due to as post-activity remediation actions. The
to authorize discharges of dredged or fill pipeline ruptures. An Interagency RMBPs are available on PREGS.
Pipeline operators are expected to use of activities authorized. For example, shellfish productivity, or some other
the RBMPs while conducting inspection discharges of dredged or fill material threshold to ensure minimal adverse
and repair activities. may be necessary to prepare a suitable effects.
Activities authorized by this NWP substrate for shellfish seeding. Should Commercial shellfish aquaculture
must comply with the ‘‘endangered this activity be authorized by the NWP? activities often take place in, and are
species’’ general condition (GC 17) and There are different types of shellfish found to co-exist with, intertidal areas
the ‘‘historic properties’’ general seed that can be used to increase that are occupied by submerged aquatic
condition (GC 18). If a proposed shellfish production. Shellfish seed may vegetation (i.e., vegetated shallows). To
pipeline inspection and/or repair consist of immature individual minimize adverse effects to this type of
activity may affect endangered or shellfish, an individual shellfish aquatic habitat, we are proposing to
threatened species or critical habitat, attached to a shell or shell fragment (i.e., require PCNs if more than 10 acres of
section 7 consultation is required. spat on shell) and shellfish shells or the project area is occupied by
Activities that may affect historic shell fragments placed into waters to submerged aquatic vegetation.
properties require consultation under provide a substrate for attachment by This proposed NWP does not
Section 106 of the National Historic free swimming shellfish larvae (i.e., authorize the cultivation of new species.
Preservation Act. We are coordinating natural catch). In other words, the NWP does not
with PHP to determine who will be the To ensure that activities authorized by authorize aquaculture activities for
lead federal agency for ESA and section this NWP result in minimal individual those species that were not previously
106 consultation. and cumulative adverse effects on the cultivated by the existing commercial
NWP D. Commercial Shellfish aquatic environment, we are proposing shellfish aquaculture activity. The
Aquaculture Activities. We are to require pre-construction notification commercial production of a shellfish
proposing a new NWP to authorize if: (1) The project area is greater than 25 species that has not been previously
continued operation of existing acres; (2) more than 10 acres of the commercially produced by the existing
commercial shellfish aquaculture project area is occupied by submerged facility may be authorized by an
activities in navigable waters of the aquatic vegetation; (3) the permittee individual permit or a regional general
United States. This NWP would support intends to relocate existing operations permit.
the U.S. Department of Commerce’s into portions of the project area not We are proposing that division
Aquaculture Policy, which is intended previously used for aquaculture engineers complete reviews of
to ‘‘assist in the development of a highly activities; or (4) dredge harvesting is commercial shellfish aquaculture
competitive, sustainable aquaculture conducted in areas inhabited by activities in the estuaries or bays in their
industry in the United States that will submerged aquatic vegetation. For the areas on a recurring basis, in
meet growing consumer demand for purposes of this NWP, we are proposing coordination with interested agency and
aquatic foods and products that are of to define the project area as the area of shellfish producers as appropriate.
high quality, safe, competitively priced navigable waters of the United States These reviews would occur at least
and are produced in an environmentally occupied by the aquaculture operation. every 5 years in conjunction with the
responsible manner with maximum In most cases, the project area will NWP reissuance cycle, but may occur
opportunity for profitability in all consist of a site for which the operator more frequently.
sectors of the industry.’’ The proposed has obtained a permit, license, or lease This NWP is limited to work
new NWP also supports the National from a state or local agency specifically associated with the continued operation
Aquaculture Act of 1980, as amended authorizing aquaculture activities in of existing commercial shellfish
(16 U.S.C. 2801 et seq.), which declared that particular location. The project area projects, many of which have been in
that aquaculture development is in the may include areas in which there has place for hundreds of years. We feel the
national interest, and included been no previous aquaculture activity potential for adverse environmental
requirements for Federal agencies to and/or areas that periodically are impacts from such existing operations is
address barriers to aquaculture allowed to lie fallow as part of the minimal, and we support the objectives
development. normal operation of the facility. of the U.S. Department of Commerce’s
This NWP authorizes structures or Relocation of existing operations into Aquaculture Policy to increase shellfish
work in navigable waters of the United portions of the project area not productivity in this country. Although
States, as well as discharges of dredged previously used for aquaculture new projects are not authorized initially
or fill material into all waters of the activities will require a pre-construction by this NWP, once authorized by
United States. Examples of commercial notification. Because shellfish require another form of Department of the Army
shellfish species for which this NWP healthy ecosystems for their growth and permit, such as a regional general
could be used to authorize aquaculture productivity, in addition to providing permit or an individual permit, the
activities include oysters, clams, the aquatic ecosystem services of commercial shellfish activities may
geoducks, mussels, and scallops. The improved water quality and increased continue in accordance with the terms
proposed NWP does not authorize food production, we believe that there is and conditions of the issued permit
commercial aquaculture activities for generally a net overall increase in and/or this NWP until expired. We are
crustaceans or finfish. aquatic resource functions in estuaries committed to conducting reviews of
This NWP does not authorize the or bays where shellfish are produced. commercial shellfish activities to
expansion of existing commercial We are requesting comments on the validate, collect data, and ensure that
aquaculture activities or facilities, potential beneficial and adverse effects the Corps is authorizing only those
however we are soliciting comment on that commercial shellfish aquaculture activities that result in minimal
this limitation. We are also soliciting activities have on the aquatic individual or cumulative adverse effects
comments on whether to impose a limit environment. We are also seeking on the aquatic environment with this
on the quantity of dredged or fill comment on this proposed PCN NWP or other general permits for
material that could be discharged into threshold, including the aquaculture activities. These reviews
navigable waters, on the acreage of the appropriateness of attempting to will begin as soon as possible (but no
facility as a whole or of submerged quantify these aquatic operations in later than 2007) in all coastal divisions,
aquatic vegetation, and/or on the types terms of acres, ecosystem health, and will involve Federal, State and local
agencies, stakeholders and the general including acid mine drainage and to authorize discharges of dredged or fill
public to help the Corps develop sources of sediment, will be eliminated material into non-tidal waters of the
regional and special conditions to or substantially diminished when the United States resulting from
mitigate impacts to the aquatic site is reclaimed. The integrated permit underground coal mining activities.
environment or other aspects of the processing procedure and its potential This type of mining involves excavating
public interest which may result from applicability to this NWP is addressed rock and soil on the surface to expose
commercial shellfish aquaculture above in the preamble discussion for the coal seam and providing access for
activities. NWP 21. people, equipment, and ventilation
This NWP authorizes the continued As a result of the reclamation activity facilities, a process referred to as ‘‘facing
operation of existing commercial on these remined areas, local water up.’’ In steep terrain, excavated material
shellfish aquaculture activities. Those quality would be improved. from these ‘‘face-up’’ areas may result in
activities may have been previously Reclamation activities may also involve small fills if the excavation is limited to
authorized by another form of DA the construction of emergent wetlands providing coal seam access or larger fills
authorization. The construction period to help improve the quality of water
if facilities such as fill for coal
for a DA permit is the period of time from mines. Net increases in aquatic
processing plants and coal processing
where the permittee is authorized to functions may be determined through
waste areas are needed. Underground
conduct work in navigable waters of the available assessment methods,
United States and/or discharge dredged including functional assessments. mining may also create fills from
or fill material into waters of the United Assessments may be used to compare excavating non-coal waste rock
States. Once the DA permit expires, ecosystem functions and site conditions underground. The mine operator may
further authorization is not required to that existed prior to remining to the have to place fill in small streams
maintain the structures or fills, but if ecosystem functions and site conditions adjacent to the preparation facility in
additional work in navigable waters or that are predicted to be in place at the order to dispose of coal waste from the
discharges of dredged or fill material in site after reclamation has been cleaning and preparation of coal.
jurisdictional waters are necessary for completed. Reclamation activities may Similarly, the operator of a preparation
the continued operation of those result in the establishment of permanent facility may need an impoundment in
activities, then another DA permit is structures or fills, to sustain ecological an adjacent stream valley for
required. The proposed NWP provides functions at the site. Such permanent withdrawal of cleaning process water.
the DA authorization for the continued structures or fills may include treatment The integrated permit processing
operation of previously authorized wetlands, permanent water diversion procedure and its potential applicability
commercial shellfish aquaculture structures, and permanent to this NWP is addressed in the
activities. For example, the continued impoundments. Permanent roads may preamble discussion for NWP 21.
operation of an aquaculture activity may also be constructed, to facilitate site Examples of activities that may be
involve removing and replacing access and maintenance of the authorized by this NWP include, but are
structures in navigable waters of the reclaimed site. not limited to, treatment facilities for
United States on a recurring basis. This NWP authorizes discharges of
controlling water pollution during
New commercial shellfish dredged or fill material into non-tidal
mining and reclamation (e.g., acid mine
aquaculture activities or the substantial waters of the United States. This NWP
drainage impoundments, sedimentation
modification (e.g., the culture of may be used on sites where the ratio of
different species) of existing commercial previously mined areas to new coal ponds), access and haul roads, diversion
shellfish aquaculture activities in waters removal areas is greater than 60 percent, ditches, support facilities, processing
of the United States may be authorized therefore, we are proposing to allow up areas, and mined waste impoundments
by individual permits or regional to 40 percent of the mine site to include or embankments. This NWP would also
general permits. unmined areas. In addition, to qualify authorize permanent structures or fills
NWP E. Coal Remining Activities. We for authorization under this NWP, we that would remain after reclamation
are proposing this new NWP to are requiring that the applicant clearly activities have been completed (e.g.,
authorize the restoration of mine sites demonstrate that the overall project, permanent diversion structures to
throughout the United States that are including the reclamation activity and minimize erosion and prevent water
causing physical and/or chemical any new mining, will result in a net from contacting toxin-producing
impacts to waters of the United States. increase in aquatic resource functions. deposits).
Many of these sites were abandoned or Such increases in aquatic resource The proposed NWP has a 1⁄2 acre
closed prior to the 1977 Surface Mining functions will be identified through limit, and is limited to discharges of
Control and Reclamation Act (SMRCA) local functional assessment methods dredged or fill into non-tidal waters of
and are currently on state lists for that have been approved for use by the the United States. The NWP does not
reclamation, although funding is Corps district in that region. authorize discharges of dredged or fill
limited. Other sites could include bond In response to a PCN, the district material into non-tidal wetlands
forfeitures on active mine sites and ‘‘no engineer may impose special conditions adjacent to tidal waters.
cost’’ abandoned mine land projects on a case-by-case basis to ensure that
under SMCRA (e.g., government the adverse effects on the aquatic The proposed NWP does not
sponsored construction projects). In environment are minimal or exercise authorize coal preparation and
some cases, due to changes in discretionary authority to require an processing activities outside of the mine
technology, additional coal may be individual permit for the work. The site; those activities may be authorized
excavated as part of the reclamation issuance of this NWP, as with any NWP, by NWP 21. Pre-construction
process. In other cases, these sites may provides for the use of discretionary notification is required for all activities
be combined with adjacent unmined authority when valuable or unique authorized by this NWP, and if
areas to put together a project that is aquatic areas may be affected by these reclamation is required by other
economically viable. The net result of activities. statutes, then a copy of the reclamation
these larger projects is that sources of NWP F. Underground Coal Mining plan must be submitted with the pre-
pollution to downstream waters, Activities. We are proposing a new NWP construction notification.
Discussion of Proposed Modifications to that do not require pre-construction to remove the phrase ‘‘including
Nationwide Permit General Conditions notification. structures or work in navigable waters
GC 2. Aquatic Life Movements. of the U.S. or discharges of dredged or
We are proposing to add a ‘‘Note’’ to
(Formerly general condition 4.) We are fill material’’ because it merely lists the
the list of NWP general conditions, to
proposing to modify the phrase general types of activities authorized by
ensure that prospective permittees are
‘‘necessary life cycle movements,’’ by NWP under sections 10 and 404.
aware that they must comply with the
adding ‘‘when known’’ following it, to GC 8. Adverse Effects from
general conditions for the NWPs, as well
reflect the fact that necessary life cycle Impoundments. (Formerly general
as any regional conditions imposed by
movements are not always well condition 22.) We are proposing to
division engineers and special
understood for the wide variety of remove the last sentence of this general
conditions added by district engineers.
indigenous aquatic species inhabiting condition, because it merely lists the
The proposed note encourages
waters of the United States. This general types of activities authorized by
prospective permittees to contact the condition still prohibits the substantial NWP under sections 10 and 404.
appropriate Corps district office to disruption of known life cycle GC 9. Management of Water Flows.
determine if regional conditions have movements of aquatic life. (Formerly general condition 21.) We are
been added to an NWP. The proposed GC 3. Spawning Areas. (Formerly proposing to simplify this general
note also encourages prospective general condition 20.) To simplify this condition, to require permittees to
permittees to contact the appropriate general condition, we are proposing to maintain the pre-construction course,
Corps district office to determine the remove the phrase ‘‘including structures condition, capacity, and location of
status of water quality certification and/ or work in navigable waters of the U.S. open waters to the maximum extent
or Coastal Zone Management Act or discharges of dredged or fill material’’ practicable. Exceptions to this
consistency for any NWP they wish to because it merely lists the general types requirement may be made if the primary
use. of activities authorized by NWP under purpose of the NWP activity is to
We are also proposing to place the sections 10 and 404. impound water or if the activity benefits
general conditions in a different order, GC 4. Migratory Bird Breeding Areas. the aquatic environment. For example,
to make them easier to read and to (Formerly general condition 23.) We are stream restoration activities authorized
facilitate compliance. The general modifying this general condition to by NWP 27 may alter the pre-
conditions relating to various cover migratory birds generally (not just construction course, condition,
environmental concerns and public waterfowl) that use aquatic habitat as capacity, and location of streams, while
interest review factors are listed first, breeding areas. To simplify this general providing important aquatic resource
and are followed by the general condition, we are proposing to remove functions and services.
conditions relating to administrative the phrase ‘‘including structures or GC 10. Fills within 100-Year
requirements. work in navigable waters of the U.S. or Floodplains. (Formerly general
GC 1. Navigation. (Remaining as discharges of dredged or fill material’’ condition 26.) We are proposing to
general condition 1.) We are proposing because it merely lists the general types modify this general condition to simply
to modify this general condition by of activities authorized by NWP under require permittees to comply with
adding two provisions. First, we are sections 10 and 404. applicable state or local floodplain
proposing to add paragraph (b), which GC 5. Shellfish Beds. (Formerly management requirements that have
requires permittees to install any safety general condition 17.) To simplify this been approved by the Federal
lights and signals required by the U.S. general condition, we are proposing to Emergency Management Agency
Coast Guard. remove the phrase ‘‘including structures (FEMA). As discussed below, instead of
Second, we are proposing to add or work in navigable waters of the U.S. the prohibitions imposed by the
paragraph (c), which is intended to or discharges of dredged or fill material’’ versions of this general condition that
address future and current conflicts because it merely lists the general types were present in the 2000 and 2002
between Corps water resources of activities authorized by NWP under nationwide permits, we are proposing to
development projects and structures or sections 10 and 404. We are also adding address impacts to 100-year floodplains
other work in navigable waters a reference to new NWP D, which through the case-by-case review that
authorized by Corps permits. There may explicitly authorizes discharges related occurs through the PCN process.
be cases where activities authorized by to existing commercial shellfish This general condition was initially
DA permits interfere with navigation or aquaculture activities, which will adopted in 2000 and modified in 2002.
any existing or future operation of the generally include shellfish beds. In the 2002 NWPs, this general
United States, and need to be removed. GC 6. Suitable Material. (Formerly condition prohibited the use of NWPs
In May 2000, we issued guidance general condition 18.) To simplify this 39, 40, 42, 43, and 44 to authorize
requiring district engineers to add this general condition, we are proposing to discharges of dredged or fill material in
language as a general condition to all remove the phrase ‘‘including structures waters of the United States resulting in
DA permits, including nationwide or work in navigable waters of the U.S. permanent above-grade fills within
permit and regional general permit or discharges of dredged or fill material’’ mapped 100-year floodplains located
verifications, that authorize activities because it merely lists the general types below headwaters. It also prohibited the
under Section 10 of the Rivers and of activities authorized by NWP under use of NWPs 39, 40, 42, and 44 to
Harbors Act of 1899. sections 10 and 404. authorize discharges of dredged or fill
Adding paragraph (c) to this general GC 7. Water Supply Intakes. material in waters of the United States
condition will help ensure that (Formerly general condition 16.) We are resulting in permanent above-grade fills
permittees are aware that they may need proposing to add the phrase ‘‘or within mapped floodways above
to remove authorized structures or work improvement’’ after the word ‘‘repair’’ headwaters.
if the structures or work interfere with since it may be necessary for water As noted in other sections of this
free navigation in navigable waters of authorities to modify their intake preamble, we are proposing to require
the United States. This provision structures to comply with new PCNs for all activities authorized by
applies to all NWPs that authorize regulations or other reasons. To simplify NWP 29 (the proposed modification of
section 10 activities, including those this general condition, we are proposing which includes residential development
activities authorized by the NWP 39 and zoning efforts, allow floodplain that requires district engineers to notify
issued in 2002), as well as NWPs 39, 40, development. The NFIP imposes prospective permittees within 45 days
42, and 44. We are also proposing to construction standards and whether the proposed activity ‘‘may
require PCNs for NWP 43 activities requirements for structures built in 100- affect’’ or will have ‘‘no effect’’ to listed
resulting in the construction or year floodplains. Those standards and species and designated critical habitat.
expansion of stormwater management requirements must be met to qualify for The proposed modification also states
facilities (only maintenance of existing flood insurance. State and local that applicants cannot begin proposed
facilities is exempted from the PCN governments may impose more activities until: (1) They are notified by
requirement). Thus, any activity that restrictive standards and requirements the Corps that those activities will result
was previously prohibited in the 100- than the NFIP. in ‘‘no effect’’ on listed species or
year floodplain by this general To harmonize the NWP program with critical habitat, or (2) Section 7
condition will now require a PCN. FEMA’s floodplain management consultation has been completed (see 33
During the PCN review process, programs, we are proposing to revise CFR 330.4(f)(2)). The purpose of the
district engineers consider adverse this general condition. Adverse effects proposed provision is to facilitate
impacts to the aquatic environment, as to public interest review factors, compliance with the Endangered
well as other public interest review especially floodplain values and flood Species Act and keep prospective
factors, including floodplain values and hazards, will be evaluated during the permittees informed of the status of
flood hazards (see 33 CFR 330.1(e)(2)). PCN review process for NWPs 29, 39, their pre-construction notifications.
If an NWP activity results in more than 40, 42, 43, and 44, as well as other GC 18. Historic Properties. (Formerly
minimal adverse effects to the aquatic NWPs, to the extent appropriate. general condition 12.) We are proposing
environment or any other public interest Management of floodplain development to modify this general condition by
review factor, the district engineer will is more appropriately achieved through adding a provision that requires district
exercise discretionary authority and state and local government land use engineers to notify prospective
require an individual permit. Potential planning, which can address impacts to permittees within 45 days whether
impacts to flood hazards and floodplain both the aquatic and terrestrial consultation under Section 106 of the
values that may be more than minimal components of 100-year floodplains. National Historic Preservation Act is
can be assessed in greater depth during GC 11. Equipment. (Formerly general required. The purpose of the proposed
the individual permit review process. In condition 5.) We are proposing to add provision is to facilitate section 106
such cases, the Corps will defer to the the phrase ‘‘or mudflats’’ to minimize compliance and keep prospective
FEMA-approved state or local soil disturbance in these special aquatic permittees informed of the status of
floodplain management requirements. sites. their pre-construction notifications.
Where there are regional concerns GC 12. Soil Erosion and Sediment
regarding development activities in 100- We are also proposing to remove the
Controls. (Formerly general condition
year floodplains involving discharges of reference to Appendix C to 33 CFR part
3.) We are not proposing any changes to
dredged or fill material into waters of 325, where our regulations for the
this general condition.
the United States, division engineers protection of historic properties are
GC 13. Removal of Temporary Fills.
can regionally condition certain NWPs currently located. On April 25, 2005, we
(Formerly general condition 24.) We are
to restrict or prohibit use of those NWPs issued revised interim guidance for
proposing to replace the phrase ‘‘their
to authorize activities in those implementing Appendix C with the
preexisting elevation’’ with ‘‘pre-
floodplains. Advisory Council on Historic
construction conditions’’ to clarify that
One of the environmental benefits of Preservation’s revised regulations at 36
temporarily filled areas are to be
the NWP program is that it provides CFR part 800. We believe this general
restored to the condition they were in
incentives for project proponents to condition should have a more general
prior to construction.
avoid and minimize impacts to the GC 14. Proper Maintenance. reference to the Corps Regulatory
waters of the United States to qualify for (Formerly general condition 2.) We are Program’s current procedures for section
an expedited NWP authorization instead not proposing any changes to this 106 compliance, since we are using
of applying for individual permits, general condition. Appendix C, the revised interim
which generally require greater costs GC 15. Wild and Scenic Rivers. guidance, and other guidance for section
and time to obtain. Prohibiting the use (Formerly general condition 7.) We are 106 compliance. We are in the process
of NWPs 39, 40, 42, 43, and 44 removes not proposing any changes to this of revising regulatory program
that incentive to reduce impacts to general condition. procedures for Section 106 compliance.
qualify for general permit authorization. GC 16. Tribal Rights. (Formerly GC 19. Designated Critical Resource
If required to obtain individual permits, general condition 8.) We are not Waters. (Formerly general condition 25).
project proponents may propose larger proposing any changes to this general This general condition is being
activities with greater impacts to waters condition. simplified but not substantively
of the United States within 100-year GC 17. Endangered Species. changed. We are removing wild and
floodplains. (Formerly general condition 11.) We are scenic rivers and critical habitat for
Modifying this general condition will proposing to add a sentence to threatened or endangered species from
increase government efficiency, by paragraph (a) of this general condition the list of waters to which this general
promoting conformity with other to state that no activity which may affect condition applies, because general
federal, state, and local programs. At the a listed species or critical habitat is conditions 15 and 17 already address
Federal level, the Federal Emergency authorized by NWP unless Section 7 these waters and the previous version of
Management Agency (FEMA) is the lead consultation addressing the effects of this general condition merely stated that
Federal agency for floodplain the proposed activity has been these other general conditions must be
management. FEMA programs, such as completed. The district engineer is complied with. District engineers will
the National Flood Insurance Program responsible for making the ‘‘may effect’’ pay particular attention to critical
(NFIP) and other floodplain determination. resource waters in determining whether
management activities, as well as State We are also proposing to modify this special permit conditions are needed, or
and local government land use planning general condition by adding a provision whether discretionary authority to
require individual permits should be general condition (GC 27). Conditioning office would then validate the transfer
exercised. NWP verifications to require the by sending a confirmation letter to the
GC 20. Mitigation. (Formerly general submission of detailed compensatory new permittee.
condition 19.) As discussed above, we mitigation plans prior to commencing GC 26. Compliance Certification
are proposing to modify several NWPs work in waters of the United States is (Formerly general condition 14.) We are
(e.g., NWPs 39, 40, and 42) which may also addressed by the ‘‘pre-construction proposing only minor grammatical
authorize discharges of dredged or fill notification’’ general condition. changes to this general condition.
material into wetlands, to require PCNs We are also proposing to add a new GC 27. Pre-construction Notification.
for all activities. For some wetland paragraph to this general condition, (Formerly general condition 13.) We are
impacts authorized by NWPs, such as stating that district engineers may proposing to simplify this general
discharges of dredged or fill material require mitigation when certain condition by deleting text that is
resulting in the loss of small amounts of functions and services of waters of the redundant with the terms of specific
wetlands, it may not be practicable or United States are permanently adversely NWPs. As part of our efforts to make the
appropriate to require compensatory affected by NWP activities. This NWPs easier to understand, if there is
mitigation for those losses. Therefore, paragraph was adapted from a term in information required to be submitted
we are establishing a threshold of 1⁄10 the NWP 12 issued in 2002. with a PCN that is only applicable to a
acre for compensatory mitigation GC 21. Water Quality. (Formerly particular NWP, those requirements are
requirements. For projects that cause general condition 9.) We are proposing indicated in the ‘‘Notification’’
losses that exceed this threshold, to simplify this general condition by paragraph of that NWP.
compensatory mitigation will generally removing paragraph (b) and adding a We are proposing to add a sentence to
be required. For losses below this sentence which states that the district paragraph (a)(3) of this general
threshold, district engineers will review engineer may require water quality condition, to clarify that the permittee
PCNs to determine if compensatory management measures to ensure that the cannot begin the NWP activity until
mitigation is necessary to ensure that authorized activity does not result in consultations required by Section 7 of
the work authorized by NWP results in more than minimal degradation of water the Endangered Species Act (ESA) and/
minimal adverse effects on the aquatic quality. or Section 106 of the National Historic
environment, individually and GC 22. Coastal Zone Management. Preservation Act (NHPA) are completed.
cumulatively. Permit applicants whose (Formerly general condition 10.) We are The NWP regulations state that if the
projects will exceed the 1⁄10 acre loss proposing to modify this general prospective permittee notifies the
threshold must include a description in condition to clarify that additional district engineer that Federally-listed
their PCN of how they intend to satisfy measures may be required to ensure that endangered or threatened species or
the mitigation requirement. the authorized activity is consistent critical habitat might be affected or are
We are also proposing to remove the with State coastal zone management in the vicinity of the project, he or she
paragraph that defines practicable requirements. cannot begin work until notified by the
mitigation and provides examples of GC 23. Regional and Case-by-Case district engineer that the requirements
appropriate and practicable mitigation. Conditions. (Formerly general condition of the ESA have been satisfied (see 33
As discussed elsewhere in this notice, 6.) We are proposing to add U.S. EPA CFR 330.5(f)(2)). There is a similar
we are proposing to add a definition of to the list of agencies issuing water provision for compliance with Section
the term ‘‘practicable’’ to the quality certifications, since that agency 106 of the NHPA at 33 CFR 330.5(g)(2).
‘‘Definitions’’ section of the NWPs, so issues water quality certifications in We are proposing to modify paragraph
we do not believe it is necessary to areas where there are no state or tribal (b)(3), which lists the required contents
include the definition in this general water quality standards. We are also of pre-construction notifications, by
condition. proposing to add language clarifying deleting the word ‘‘brief’’ and clarifying
We are proposing to modify paragraph that the state issues Coastal Zone that PCNs must include descriptions of
(d) of this general condition, to clarify Management Act consistency proposed NWP activities that are
that compensatory mitigation cannot be determinations. sufficiently detailed for the district
used to increase the acreage losses GC 24. Use of Multiple Nationwide engineer to determine that any adverse
allowed by the acreage limits of the Permits. (Formerly general condition impacts to the aquatic environment are
NWPs. 15.) The only modification we are minimal, both individually and
For the reasons stated in the preamble proposing is to change the example from cumulatively, and to develop any
discussion for the definition of ‘‘riparian a parenthetical expression to a complete special conditions, including
areas’’ we are proposing to change the sentence. compensatory mitigation, that may be
term ‘‘vegetated buffer’’ to ‘‘riparian GC 25. Transfer of Nationwide Permit needed to ensure that this requirement
areas.’’ District engineers will make Verifications. We are proposing a new is satisfied. We believe that providing
case-by-case determinations as to NWP general condition to address the more detailed descriptions of proposed
whether the establishment and transfer of NWP verifications when the NWP activities will facilitate reviews of
maintenance of riparian areas is project site is transferred from the PCNs.
necessary, either in-lieu of or in project proponent who received the In paragraph (b)(4), we are also
addition to, wetlands compensatory original NWP verification to a new proposing to require that PCNs include
mitigation, if both open waters and project proponent. The new project delineations of special aquatic sites and
wetlands exist on the project site. Those proponent may have purchased the other waters of the United States on the
determinations are based on project site for the verified NWP project site. We believe that more
consideration of watershed needs. activity. complete delineations will help
We are also proposing to remove the The NWP verification would be expedite reviews of PCNs, by indicating
paragraph stating that compensatory transferred to the new owner if the clearly the proposed impacts to waters
mitigation plans submitted with a PCN permittee submits a letter to the of the United States. We are also
may be either conceptual or detailed, appropriate Corps district office, and the proposing to modify this paragraph to
because that provision is in paragraph transferee signs the statement provided clarify that there may be extended
(e) of the ‘‘pre-construction notification’’ in this general condition. The district delays if the permittee asks the Corps to
conduct the delineation and the project NWPs) should consider whether it development of aquatic resources at
site is large or contains many wetland would be more advantageous to pursue upland or deepwater sites.
areas. an individual permit authorization. Farm tract. We are proposing to
In paragraph (b)(5), we are proposing There is greater flexibility in remove this definition, since this term is
to add a requirement for the prospective construction periods that can be not used in the proposed NWPs.
permittee to submit a statement authorized by individual permits. An Flood fringe. We are proposing to
describing how the mitigation individual permit authorization can also remove this definition, since this term is
requirement will be satisfied for those be extended, as long as the district not used in the proposed NWPs.
activities resulting in the loss of greater engineer determines that the time Floodway. We are proposing to
than 1⁄10 acre of wetlands. extension would be consistent with remove this definition, since this term is
We are proposing to add a provision applicable regulations and would not be not used in the proposed NWPs.
to paragraph (d) to clarify the agency contrary to the public interest. Loss of waters of the United States.
coordination process for NWP 37 PCNs. We are proposing to modify this
This provision states that emergency Discussion of Proposed Modifications to definition by replacing the phrase
watershed protection and rehabilitation Existing Nationwide Permit Definitions ‘‘above-grade, at-grade, or below-grade
activities can proceed immediately, and We are proposing changes to some of fills’’ with ‘‘discharges of dredged or fill
a district engineer will consider the NWP definitions. If a definition is material’’ to be consistent with the
comments received in response to not discussed below, we are not definitions of ‘‘fill material’’ and
agency coordination of the PCN (i.e., for proposing any substantive changes to ‘‘discharge of fill material’’ issued on
NWP 37 activities resulting in the loss that definition. May 9, 2002 (67 FR 31129) at 33 CFR
of greater than 1⁄2 acre of waters of the Best Management Practices. We are 323.2. We are also proposing to
United States) when determining if the proposing to modify this definition by eliminate the sentence stating that
case-specific NWP 37 authorization removing the last sentence, since it does impacts to ephemeral streams are not
should be modified, suspended, or not help define this term. Instead, this included in the linear foot limits for
revoked. sentence describes a potential stream impacts in NWPs 39, 40, 42, and
In addition, we are proposing to drop 43, because of the proposed changes to
consequence of implementing best
one NWP general condition. those NWPs. For those NWPs with 300
management practices.
GC 27. Construction Period. This linear foot limits for filling or excavating
general condition was first adopted in Compensatory Mitigation. We are
proposing to modify this definition by stream bed, ephemeral streams will be
2002. During the implementation of the included when determining compliance
2002 NWPs, questions arose that have removing the phrase ‘‘For the purposes
of Section 10/404, compensatory with that limit. As discussed elsewhere
required us to revisit this general in this notice, the district engineer can
condition. Section 404(e)(2) of the Clean mitigation is’’ because the definitions in
this section apply only to the NWP issue a written waiver to those linear
Water Act places a five-year limit on foot limits for ephemeral and
general permits issued under section program. Therefore, it is not necessary
to refer to section 10 or section 404. We intermittent streams on a case-by-case
404. General condition 27 allowed a basis if the proposed work will have
district engineer to place any are also proposing to replace ‘‘creation’’
with ‘‘establishment (creation)’’ to be minimal individual and cumulative
completion date on an NWP adverse effects on the aquatic
verification, based on the amount of consistent with the wetland project
types described in Regulatory Guidance environment. We are proposing to add
time a project proponent estimated a sentence to this definition to clarify
would be necessary to finish Letter 02–02.
that activities exempt from section 404
constructing the NWP activity and Creation. We are proposing to remove
permit requirements are not included
consideration of the public interest. this term, and use the definition of
when calculating the loss of waters of
This general condition did not specify ‘‘establishment (creation)’’ in its place.
the United States.
any limits to these completion dates, in Currently serviceable. We are Open water. We are proposing to
effect providing the district engineer proposing to move this definition from change this definition by adding a
with the authority to state that the NWP NWP 3 to the ‘‘Definitions’’ section, sentence that describes what an
activity was authorized for any period of since this definition applies to more ordinary high water mark is.
time. than one NWP (i.e., NWPs 3 and 41, as Permanent above-grade fill. We are
The NWP regulations contain a well as proposed new NWP C). proposing to remove this definition,
provision that allows permittees to Enhancement. We are proposing to since this term is not used in the
continue work for one year in reliance modify this definition to be consistent proposed NWPs.
on an NWP authorization, if that NWP with the wetland project type described Practicable. We are proposing to move
has expired or been modified or in Regulatory Guidance Letter 02–02 this definition from the current
revoked, as long as the activity was and the definition in the Council on ‘‘mitigation’’ general condition (GC 20)
under construction or under contract to Environmental Quality’s April 2006 to the ‘‘Definitions’’ section of the
commence construction (see 33 CFR report entitled ‘‘Conserving America’s NWPs.
330.6(b)). If that work cannot be Wetlands 2006: Two Years of Progress Pre-construction notification. We are
completed within that one-year time Implementing the President’s Goal.’’ proposing to add this definition to
period, then the permittee would have Establishment (creation). We are clarify the various circumstances under
to obtain another DA authorization. We proposing to modify this definition to be which a PCN may be submitted.
believe this provision is sufficient to consistent with the wetland project type Preservation. We are proposing to
address the concern with projects that described in Regulatory Guidance Letter modify this definition to be consistent
may not be completed before an NWP 02–02 and the definition in the Council with the definition for ‘‘protection/
expires. on Environmental Quality’s April 2006 maintenance (preservation)’’ in

Proponents of NWP activities that will report entitled ‘‘Conserving America’s Regulatory Guidance Letter 02–02 and
require substantial amounts of time to Wetlands 2006: Two Years of Progress the definition in the Council on
complete (greater than one year beyond Implementing the President’s Goal.’’ Environmental Quality’s April 2006
the expiration of currently applicable This term would also be applied to the report entitled ‘‘Conserving America’s
Wetlands 2006: Two Years of Progress environment, the term ‘‘riparian area’’ is and common everyday terms except for
Implementing the President’s Goal.’’ more accurate, and more clearly necessary technical terms.
Re-establishment. We are proposing to conveys to the regulated public a
add this definition, to be consistent with Paperwork Reduction Act
specific type of mitigation that may be
the wetland project type described in required for some NWPs. The term The proposed NWPs will increase the
Regulatory Guidance Letter 02–02 and ‘‘vegetated buffer’’ is a vague term, number of permittees who are required
the definition in the Council on because it can apply to any vegetated to submit a PCN. The content of the
Environmental Quality’s April 2006 area next to some feature in the PCN is not changed from the current
report entitled ‘‘Conserving America’s landscape. NWPs, but the paperwork burden will
Wetlands 2006: Two Years of Progress In 2002, the National Research increase because of the increased
Implementing the President’s Goal.’’ Council (NRC) published a report number of PCNs submitted. The Corps
Rehabilitation. We are proposing to entitled ‘‘Riparian Areas: Functions and estimates the increased paperwork
add this definition, to be consistent with Strategies for Management.’’ The burden at 4,500 hours per year. This is
the wetland project type described in proposed definition of ‘‘riparian areas’’ based on an average burden to complete
Regulatory Guidance Letter 02–02 and was adapted with modifications from and submit a PCN of 10 hours, and an
the definition in the Council on the definition developed by the NRC. estimated 450 additional projects that
Environmental Quality’s April 2006 will require PCNs. Prospective
report entitled ‘‘Conserving America’s Stream channelization. We are
proposing to simplify this definition, by permittees who are required to submit a
Wetlands 2006: Two Years of Progress pre-construction notification (PCN) for a
Implementing the President’s Goal.’’ generally considering man-made
changes to a stream’s course, condition, particular NWP, or who are requesting
Restoration. We are proposing to verification that a particular activity
modify this definition to be consistent capacity, or location to be stream
channelization activities. qualifies for NWP authorization, may
with the wetland project type described use the current standard Department of
in Regulatory Guidance Letter 02–02 Structure. We are proposing to add
the Army permit application form.
and the definition in the Council on this definition to the NWPs. The
examples in this definition were An agency may not conduct or
Environmental Quality’s April 2006
adapted from 33 CFR 322.2(b). sponsor, and a person is not required to
report entitled ‘‘Conserving America’s
respond to, a collection of information
Wetlands 2006: Two Years of Progress Vegetated buffer. For the reasons
unless it displays a currently valid
Implementing the President’s Goal.’’ discussed in the preamble discussion of
Riparian areas. We are proposing to Office of Management and Budget
the proposed definition of ‘‘riparian
replace the definition of ‘‘vegetated (OMB) control number. For the Corps
area’’ we are proposing to remove this
buffers’’ with a definition of ‘‘riparian Regulatory Program under Section 10 of
definition.
areas’’ since the latter term more the Rivers and Harbors Act of 1899,
Waterbody. We are proposing to Section 404 of the Clean Water Act, and
accurately reflects what is normally modify this definition to clarify that a
required as mitigation for NWP Section 103 of the Marine Protection,
waterbody is a jurisdictional water of Research and Sanctuaries Act of 1972,
activities where there are streams and the United States, and that it would
other open waters on a project site. the current OMB approval number for
have flowing or standing water during information collection requirements is
Since 1996, we have placed more years with normal patterns of
emphasis in the NWP program on maintained by the Corps of Engineers
precipitation to the extent that an (OMB approval number 0710–0003,
protecting streams and other open ordinary high water mark or other
waters. Also, with the issuance of which expires on April 30, 2008).
indicators of jurisdiction can be
Regulatory Guidance Letter 02–02, we determined. The waterbody would Executive Order 12866
have taken a watershed approach to include wetland areas. We are also
compensatory mitigation, which Under Executive Order 12866 (58 FR
proposing to amend this definition by 51735, October 4, 1993), we must
includes consideration of the ecological adding a sentence that describes what
functions provided by riparian areas. determine whether the regulatory action
an ordinary high water mark is. We are is ‘‘significant’’ and therefore subject to
In two of the NWPs issued on proposing to modify this definition so
December 13, 1996 (61 FR 65874), review by OMB and the requirements of
that a waterbody and its adjacent the Executive Order. The Executive
specifically NWPs 29 and 30, we began wetlands would be considered together
requiring the establishment and Order defines ‘‘significant regulatory
as a single aquatic unit. The purpose of action’’ as one that is likely to result in
maintenance of vegetated buffers next to this definition is not to identify which
open waters, such as streams, to a rule that may:
waterbodies are jurisdictional, but to (1) Have an annual effect on the
preclude water quality degradation from clarify how adjacent waters of the
erosion and sedimentation. That economy of $100 million or more or
United States are grouped into adversely affect in a material way the
requirement was added to some of the waterbodies, especially for the purposes
NWPs issued on March 9, 2000 (65 FR economy, a sector of the economy,
of implementing 33 CFR 330.2(i), which productivity, competition, jobs, the
12818). The 2000 NWPs clarified that addresses single and complete projects
vegetated buffers could be required only environment, public health or safety, or
for the NWPs. State, local, or tribal governments or
for perennial or intermittent streams or
other open waters on the site. The Administrative Requirements communities;
vegetated buffer requirement does not (2) Create a serious inconsistency or
Plain Language otherwise interfere with an action taken
apply to other aquatic resources, such as
wetlands. In compliance with the principles in or planned by another agency;
Since the requirements of past NWPs, the President’s Memorandum of June 1, (3) Materially alter the budgetary
as well as the current NWPs, have 1998, (63 FR 31855) regarding plain impact of entitlements, grants, user fees,
focused on using vegetated areas next to language, this preamble is written using or loan programs or the rights and
open waters such as streams to ensure plain language. The use of ‘‘we’’ in this obligations of recipients thereof; or
that certain NWP activities result in notice refers to the Corps. We have also (4) Raise novel legal or policy issues
minimal adverse effects on the aquatic used the active voice, short sentences, arising out of legal mandates, the
President’s priorities, or the principles 404, Department of the Army (DA) expected to result in a slight increase in
set forth in the Executive Order. permits are required for discharges of the numbers of activities potentially
Pursuant to the terms of Executive dredged or fill material into waters of qualifying for NWP authorization. The
Order 12866, we have determined that the United States. Under section 10, DA estimated numbers of activities
the proposed rule is a ‘‘significant permits are required for any structures qualifying for NWP authorization are
regulatory action’’ and the draft was or other work that affect the course, provided in the draft decision
submitted to OMB for review. location, or condition of navigable documents that were prepared for each
Executive Order 13132 waters of the United States. Small NWP. The revised NWPs are not
entities proposing to discharge dredged expected to significantly increase cost or
Executive Order 13132, entitled or fill material into waters of the United paperwork burden for authorized
‘‘Federalism’’ (64 FR 43255, August 10, States and/or conduct work in navigable activities (relative to the current NWPs),
1999), requires the Corps to develop an waters of the United States must obtain including those conducted by small
accountable process to ensure DA permits to conduct those activities, businesses.
‘‘meaningful and timely input by State unless a particular activity is exempt When compared to the compliance
and local officials in the development of from those permit requirements. costs for individual permits, most of the
regulatory policies that have federalism Individual permits and general permits terms and conditions of the proposed
implications.’’ The proposed issuance can be issued by the Corps to satisfy the NWPs are expected to result in
and modification of NWPs does not permit requirements of these two decreases in the costs of complying with
have federalism implications. We do not statutes. Nationwide permits are a form the permit requirements of sections 10
believe that the proposed NWPs will of general permit issued by the Chief of and 404. The anticipated decrease in
have substantial direct effects on the Engineers. compliance cost results from the lower
States, on the relationship between the Nationwide permits automatically cost of obtaining NWP authorization
Federal government and the States, or expire and become null and void if they instead of standard permits. Unlike
on the distribution of power and are not modified or reissued within five standard permits, NWPs authorize
responsibilities among the various years of their effective date (see 33 CFR activities without the requirement for
levels of government. The proposed 330.6(b)). Furthermore, Section 404(e) of public notice and comment on each
NWPs will not impose any additional the Clean Water Act states that general proposed activity.
substantive obligations on State or local permits, including NWPs, can be issued Another requirement of Section 404(e)
governments. Therefore, Executive for no more than 5 years. If the current of the Clean Water Act is that general
Order 13132 does not apply to this NWPs are not reissued, they will expire permits, including nationwide permits,
proposal. on March 18, 2007, and small entities authorize only those activities that
and other project proponents would be result in minimal adverse
Regulatory Flexibility Act, as Amended
required to obtain alternative forms of environmental effects, individually and
by the Small Business Regulatory
DA permits (i.e., standard permits, cumulatively. The terms and conditions
Enforcement Fairness Act of 1996, 5
letters of permission, or regional general of the NWPs, such as acreage or linear
U.S.C. 601 et seq.
permits) for activities involving foot limits, are imposed to ensure that
The Regulatory Flexibility Act discharges of dredged or fill material the NWPs authorize only those activities
generally requires an agency to prepare into waters of the United States or that result in minimal adverse effects on
a regulatory flexibility analysis of any structures or work in navigable waters the aquatic environment and other
rule subject to notice-and-comment of the United States. Regional general public interest review factors.
rulemaking requirements under the permits that authorize similar activities After considering the economic
Administrative Procedure Act or any as the NWPs may be available in some impacts of the proposed nationwide
other statute unless the agency certifies geographic areas, so small entities permits on small entities, I certify that
that the rule will not have a significant conducting regulated activities outside this action will not have a significant
economic impact on a substantial those geographic areas would have to impact on a substantial number of small
number of small entities. Small entities obtain individual permits for activities entities. Small entities may obtain
include small businesses, small that require DA permits. required DA authorizations through the
organizations, and small governmental Nationwide permits help relieve NWPs, in cases where there are
jurisdictions. regulatory burdens on small entities applicable NWPs authorizing those
For purposes of assessing the impacts who need to obtain DA permits. They activities and the proposed work will
of the proposed issuance and provide an expedited form of result in minimal adverse effects on the
modification of NWPs on small entities, authorization, provided the project aquatic environment and other public
a small entity is defined as: (1) A small proponent meets all terms and interest review factors. The terms and
business based on Small Business conditions of the NWPs. In FY 2003, the conditions of the revised NWPs will not
Administration size standards; (2) a Corps issued 35,317 NWP verifications, impose substantially higher costs on
small governmental jurisdiction that is a with an average processing time of 27 small entities than those of the existing
government of a city, county, town, days. Those numbers do not include NWPs. If an NWP is not available to
school district, or special district with a activities that are authorized by NWP, authorize a particular activity, then
population of less than 50,000; or (3) a where the project proponent was not another form of DA authorization, such
small organization that is any not-for- required to submit a pre-construction as an individual permit or regional
profit enterprise which is independently notification or did not voluntarily seek general permit, must be secured.
owned and operated and is not verification that an activity qualified for However, as noted above, we expect a
dominant in its field. NWP authorization. The average slight increase in the number of
The statues under which the Corps processing times for the 4,035 standard activities than can be authorized
issues, reissues, or modifies nationwide permits and the 3,040 letters of through NWPs, because we are adding
permits are Section 404(e) of the Clean permission issued during FY 2003 were several new NWPs, and we are
Water Act (33 U.S.C. 1344(e)) and 187 days and 89 days, respectively. The removing some limitations in existing
Section 10 of the Rivers and Harbors Act NWPs proposed for reissuance, as well NWPs and replacing them with PCN
of 1899 (33 U.S.C. 403). Under section as the proposed new NWPs, are requirements that will allow the district
engineer to judge whether any adverse contain a Federal mandate that may relationship between the Federal
effects of the proposed project are more result in expenditures of $100 million or government and the Indian tribes, or on
than minimal, and authorize the project more for State, local, and Tribal the distribution of power and
under an NWP if they are not. governments, in the aggregate, or the responsibilities between the Federal
We are interested in the potential private sector in any one year. government and Indian tribes.
impacts of the proposed NWPs on small Therefore, this proposal is not subject to Therefore, Executive Order 13175 does
entities and welcome comments on the requirements of Sections 202 and not apply to this proposal. However, in
issues related to such impacts. 205 of the UMRA. For the same reasons, the spirit of Executive Order 13175, we
Unfunded Mandates Reform Act we have determined that the proposed specifically request comment from tribal
NWPs contains no regulatory officials on the proposed rule.
Title II of the Unfunded Mandates requirements that might significantly or
Reform Act of 1995 (UMRA), Public Environmental Documentation
uniquely affect small governments.
Law 104–4, establishes requirements for Therefore, the proposed issuance and A preliminary decision document,
Federal agencies to assess the effects of modification of NWPs is not subject to which includes a draft environmental
their regulatory actions on State, local, the requirements of Section 203 of assessment and Finding of No
and tribal governments and the private UMRA. Significant Impact (FONSI) has been
sector. Under Section 202 of the UMRA, prepared for each proposed NWP. These
the agencies generally must prepare a Executive Order 13045 preliminary decision documents are
written statement, including a cost- Executive Order 13045, ‘‘Protection of available at: www.regulations.gov
benefit analysis, for proposed and final Children from Environmental Health (docket ID number COE–2006–0005).
rules with ‘‘federal mandates’’ that may Risks and Safety Risks’’ (62 FR 19885, They are also available by contacting
result in expenditures to State, local, April 23, 1997), applies to any rule that: Headquarters, U.S. Army Corps of
and tribal governments, in the aggregate, (1) Is determined to be ‘‘economically Engineers, Operations and Regulatory
or to the private sector, of $100 million significant’’ as defined under Executive Community of Practice, 441 G Street,
or more in any one year. Before Order 12866, and (2) concerns an NW., Washington, DC 20314–1000.
promulgating a rule for which a written environmental health or safety risk that
statement is needed, Section 205 of the Congressional Review Act
we have reason to believe may have a
UMRA generally requires the agencies disproportionate effect on children. If The Congressional Review Act, 5
to identify and consider a reasonable the regulatory action meets both criteria, U.S.C. 801 et seq., as added by the Small
number of regulatory alternatives and we must evaluate the environmental Business Regulatory Enforcement
adopt the least costly, most cost- health or safety effects of the proposed Fairness Act of 1996, generally provides
effective, or least burdensome rule on children, and explain why the that before a rule may take effect, the
alternative that achieves the objectives regulation is preferable to other agency promulgating the rule must
of the rule. The provisions of section potentially effective and reasonably submit a rule report, which includes a
205 do not apply when they are feasible alternatives. copy of the rule, to each House of the
inconsistent with applicable law. The proposed NWPs are not subject to Congress and to the Comptroller General
Moreover, section 205 allows an agency this Executive Order because they are of the United States. We will submit a
to adopt an alternative other than the not economically significant as defined report containing the final NWPs and
least costly, most cost-effective, or least in Executive Order 12866. In addition, other required information to the U.S.
burdensome alternative if the agency the proposed NWPs do not concern an Senate, the U.S. House of
publishes with the final rule an environmental or safety risk that we Representatives, and the Comptroller
explanation why that alternative was have reason to believe may have a General of the United States. A major
not adopted. Before an agency disproportionate effect on children. rule cannot take effect until 60 days
establishes any regulatory requirements after it is published in the Federal
that may significantly or uniquely affect Executive Order 13175 Register. The proposed NWPs are not a
small governments, including tribal Executive Order 13175, entitled ‘‘major rule’’ as defined by 5 U.S.C.
governments, it must have developed, ‘‘Consultation and Coordination with 804(2).
under Section 203 of the UMRA, a small Indian Tribal Governments’’ (65 FR
government agency plan. The plan must 67249, November 6, 2000), requires Executive Order 12898
provide for notifying potentially agencies to develop an accountable Executive Order 12898 requires that,
affected small governments, enabling process to ensure ‘‘meaningful and to the greatest extent practicable and
officials of affected small governments timely input by tribal officials in the permitted by law, each Federal agency
to have meaningful and timely input in development of regulatory policies that must make achieving environmental
the development of regulatory proposals have tribal implications.’’ The phrase justice part of its mission. Executive
with significant federal ‘‘policies that have tribal implications’’ Order 12898 provides that each federal
intergovernmental mandates, and is defined in the Executive Order to agency conduct its programs, policies,
informing, educating, and advising include regulations that have and activities that substantially affect
small governments on compliance with ‘‘substantial direct effects on one or human health or the environment in a
the regulatory requirements. more Indian tribes, on the relationship manner that ensures that such programs,
We have determined that the between the Federal government and policies, and activities do not have the
proposed NWPs do not contain a the Indian tribes, or on the distribution effect of excluding persons (including
Federal mandate that may result in of power and responsibilities between populations) from participation in,
expenditures of $100 million or more the Federal government and Indian denying persons (including
for State, local, and Tribal governments, tribes.’’ populations) the benefits of, or
in the aggregate, or the private sector in The proposed NWPs do not have subjecting persons (including
any one year. The proposed NWPs are tribal implications. It is generally populations) to discrimination under
generally consistent with current agency consistent with current agency practice such programs, policies, and activities
practice, do not impose new substantive and will not have substantial direct because of their race, color, or national
requirements and therefore do not effects on tribal governments, on the origin.
The proposed NWPs are not expected 25. Structural Discharges Compensatory mitigation
to negatively impact any community, 26. [Reserved] Currently serviceable
and therefore are not expected to cause 27. Aquatic Habitat Restoration, Enhancement
any disproportionately high and adverse Establishment, and Enhancement Ephemeral stream
impacts to minority or low-income Activities Establishment (creation)
communities. 28. Modifications of Existing Marinas Independent utility
29. Residential Developments Intermittent stream
Executive Order 13211 30. Moist Soil Management for Wildlife Loss of waters of the United States
The proposed NWPs are not a 31. Maintenance of Existing Flood Non-tidal wetland
‘‘significant energy action’’ as defined in Control Facilities Open water
Executive Order 13211, ‘‘Actions 32. Completed Enforcement Actions Perennial stream
33. Temporary Construction, Access, Practicable
Concerning Regulations That
and Dewatering Pre-construction notification
Significantly Affect Energy Supply, 34. Cranberry Production Activities
Distribution, or Use’’ (66 FR 28355, May Preservation
35. Maintenance Dredging of Existing Re-establishment
22, 2001) because it is not likely to have Basins
a significant adverse effect on the Rehabilitation
36. Boat Ramps
supply, distribution, or use of energy. 37. Emergency Watershed Protection Restoration
Riffle and pool complex
Authority and Rehabilitation
38. Cleanup of Hazardous and Toxic Riparian areas
We are proposing to issue new NWPs, Waste Single and complete project
modify existing NWPs, and reissue 39. Commercial and Institutional Stormwater management
NWPs without change under the Developments Stormwater management facilities
authority of Section 404(e) of the Clean 40. Agricultural Activities Stream bed
Water Act (33 U.S.C. 1344) and Section 41. Reshaping Existing Drainage Ditches Stream channelization
10 of the Rivers and Harbors Act of 1899 42. Recreational Facilities Structure
(33 U.S.C. 401 et seq.) 43. Stormwater Management Facilities Tidal wetland
44. Mining Activities Vegetated shallows
Dated: September 18, 2006. A. Emergency Repair Activities Waterbody
Don T. Riley, B. Discharges into Ditches and Canals
Major General, U.S. Army, Director of Civil C. Pipeline Safety Program Designated B. Nationwide Permits
Works. Time Sensitive Inspections and 1. Aids to Navigation. The placement
Nationwide Permits, Conditions, Repairs of aids to navigation and regulatory
D. Commercial Shellfish Aquaculture markers which are approved by and
Further Information, and Definitions
Activities installed in accordance with the
A. Index of Nationwide Permits, E. Coal Remining Activities requirements of the U.S. Coast Guard
Conditions, Further Information, and F. Underground Coal Mining Activities (see 33 CFR, chapter I, subchapter C,
Definitions Nationwide Permit General Conditions part 66). (Section 10)
Nationwide Permits 2. Structures in Artificial Canals.
1. Navigation Structures constructed in artificial
1. Aids to Navigation 2. Aquatic Life Movements
3. Spawning Areas canals within principally residential
2. Structures in Artificial Canals developments where the connection of
3. Maintenance 4. Migratory Bird Breeding Areas
5. Shellfish Beds the canal to a navigable water of the
4. Fish and Wildlife Harvesting, United States has been previously
Enhancement, and Attraction Devices 6. Suitable Material
7. Water Supply Intakes authorized (see 33 CFR 322.5(g)).
and Activities 8. Adverse Effects from Impoundments (Section 10)
5. Scientific Measurement Devices 9. Management of Water Flows 3. Maintenance. (a) The repair,
6. Survey Activities 10. Fills Within 100-Year Floodplains rehabilitation, or replacement of any
7. Outfall Structures and Associated 11. Equipment previously authorized, currently
Intake Structures 12. Soil Erosion and Sediment Controls serviceable, structure, or fill, or of any
8. Oil and Gas Structures on the Outer 13. Removal of Temporary Fills currently serviceable structure or fill
Continental Shelf 14. Proper Maintenance
9. Structures in Fleeting and Anchorage authorized by 33 CFR 330.3, provided
15. Wild and Scenic Rivers that the structure or fill is not to be put
Areas 16. Tribal Rights
10. Mooring Buoys to uses differing from those uses
17. Endangered Species
11. Temporary Recreational Structures 18. Historic Properties specified or contemplated for it in the
12. Utility Line Activities 19. Designated Critical Resource Waters original permit or the most recently
13. Bank Stabilization 20. Mitigation authorized modification. Minor
14. Linear Transportation Projects 21. Water Quality deviations in the structure’s
15. U.S. Coast Guard Approved Bridges 22. Coastal Zone Management configuration or filled area, including
16. Return Water From Upland 23. Regional and Case-by-Case those due to changes in materials,
Contained Disposal Areas Conditions construction techniques, or current
17. Hydropower Projects 24. Use of Multiple Nationwide Permits construction codes or safety standards
18. Minor Discharges 25. Transfer of Nationwide Permit that are necessary to make repair,
19. Minor Dredging Verifications rehabilitation, or replacement are
20. Oil Spill Cleanup 26. Compliance Certification authorized.
21. Surface Coal Mining Operations 27. Pre-Construction Notification (b) This NWP also authorizes the
22. Removal of Vessels Further Information removal of accumulated sediments and
23. Approved Categorical Exclusions debris in the vicinity of and within
24. Indian Tribe or State Administered Definitions existing structures (e.g., bridges,
Section 404 Programs Best management practices (BMPs) culverted road crossings, water intake
structures, etc.) and the placement of attraction devices such as open water NWP, unless they are directly associated
new or additional riprap to protect the fish concentrators (sea kites, etc.). This with an authorized outfall structure.
structure. The removal of sediment is NWP does not authorize artificial reefs Notification: The permittee must
limited to the minimum necessary to or impoundments and semi- submit a pre-construction notification to
restore the waterway in the immediate impoundments of waters of the United the district engineer prior to
vicinity of the structure to the States for the culture or holding of commencing the activity. (See general
approximate dimensions that existed motile species such as lobster, or the use condition 27.) (Sections 10 and 404.)
when the structure was built, but cannot of covered oyster trays or clam racks. 8. Oil and Gas Structures on the Outer
extend further than 200 feet in any (Sections 10 and 404.) Continental Shelf. Structures for the
direction from the structure. This 200 5. Scientific Measurement Devices. exploration, production, and
foot limit does not apply to maintenance Devices, whose purpose is to measure transportation of oil, gas, and minerals
dredging to remove accumulated and record scientific data such as staff on the outer continental shelf within
sediments blocking or restricting outfall gages, tide gages, water recording areas leased for such purposes by the
and intake structures or to maintenance devices, water quality testing and Department of the Interior, Minerals
dredging to remove accumulated improvement devices and similar Management Service. Such structures
sediments from canals associated with structures. Small weirs and flumes shall not be placed within the limits of
outfall and intake structures. All constructed primarily to record water any designated shipping safety fairway
dredged or excavated materials must be quantity and velocity are also or traffic separation scheme, except
deposited and retained in an upland authorized provided the discharge is temporary anchors that comply with the
area unless otherwise specifically limited to 25 cubic yards. (Sections 10 fairway regulations in 33 CFR 322.5(l).
approved by the district engineer under and 404.) The district engineer will review such
separate authorization. The placement 6. Survey Activities. Survey activities, proposals to ensure compliance with the
of riprap must be the minimum such as core sampling, seismic provisions of the fairway regulations in
necessary to protect the structure or to exploratory operations, plugging of 33 CFR 322.5(l). Any Corps review
ensure the safety of the structure. Any seismic shot holes and other under this NWP will be limited to the
bank stabilization measures not directly exploratory-type bore holes, exploratory effects on navigation and national
associated with the structure will trenching, soil surveys, sampling, and security in accordance with 33 CFR
require a separate authorization from historic resources surveys. For the 322.5(f). Such structures will not be
the district engineer. purposes of this NWP, the term placed in established danger zones or
(c) Separate authorization is required ‘‘exploratory trenching’’ means restricted areas as designated in 33 CFR
for temporary structures or work in mechanical land clearing of the upper part 334, nor will such structures be
navigable waters of the United States or soil profile to expose bedrock or permitted in EPA or Corps designated
temporary discharges of dredged or fill substrate, for the purpose of mapping dredged material disposal areas.
material into waters of the United and sampling the exposed material. The Notification: The permittee must
States, if those activities are necessary to area in which the exploratory trench is submit a pre-construction notification to
conduct the maintenance activity and dug must be restored to its pre- the district engineer prior to
are not exempt from permit construction elevation upon completion commencing the activity. (See general
requirements. This NWP does not of the work This NWP authorizes the condition 27.) (Section 10)
authorize maintenance dredging for the construction of temporary pads, 9. Structures in Fleeting and
primary purpose of navigation or beach provided the discharge does not exceed Anchorage Areas. Structures, buoys,
restoration. This NWP does not 25 cubic yards. Discharges and floats and other devices placed within
authorize new stream channelization or structures associated with the recovery anchorage or fleeting areas to facilitate
stream relocation projects. of historic resources are not authorized moorage of vessels where the U.S. Coast
Notification: For activities authorized Guard has established such areas for
by this NWP. Drilling and the discharge
by paragraph (b) of this NWP, the that purpose. (Section 10)
of excavated material from test wells for
permittee must submit a pre-
oil and gas exploration are not 10. Mooring Buoys. Non-commercial,
construction notification to the district
authorized by this NWP; the plugging of single-boat, mooring buoys. (Section 10)
engineer prior to commencing the
such wells is authorized. Fill placed for 11. Temporary Recreational
activity (see general condition 27).
roads and other similar activities is not Structures. Temporary buoys, markers,
Where maintenance dredging is
authorized by this NWP. The NWP does small floating docks, and similar
proposed, the pre-construction
not authorize any permanent structures. structures placed for recreational use
notification must include information
The discharge of drilling mud and during specific events such as water
regarding the original design capacities
cuttings may require a permit under skiing competitions and boat races or
and configurations of the outfalls,
Section 402 of the Clean Water Act. seasonal use, provided that such
intakes, small impoundments, and
(Sections 10 and 404.) structures are removed within 30 days
canals. (Sections 10 and 404.)
7. Outfall Structures and Associated after use has been discontinued. At
Note: This NWP authorizes the repair, Intake Structures. Activities related to Corps of Engineers reservoirs, the
rehabilitation, or replacement of any the construction of outfall structures reservoir manager must approve each
previously authorized structure or fill that and associated intake structures, where buoy or marker individually. (Section
does not qualify for the Clean Water Act the effluent from the outfall is 10)
Section 404(f) exemption for maintenance.
authorized, conditionally authorized, or 12. Utility Line Activities. Activities
4. Fish and Wildlife Harvesting, specifically exempted, or that are required for the construction,
Enhancement, and Attraction Devices otherwise in compliance with maintenance, repair, and removal of
and Activities. Fish and wildlife regulations issued under the National utility lines and associated facilities in
harvesting devices and activities such as Pollutant Discharge Elimination System waters of the United States, provided
pound nets, crab traps, crab dredging, Program (Section 402 of the Clean Water the activity does not result in the loss
eel pots, lobster traps, duck blinds, clam Act). The construction of intake of greater than 1⁄2 acre of waters of the
and oyster digging, and small fish structures is not authorized by this United States.
This NWP authorizes the temporary construction roads may be (f) The activity is not a stream
construction, maintenance, or repair of authorized by NWP 33. channelization activity.
utility lines, including outfall and This NWP may authorize utility lines Notification: The permittee must
intake structures and the associated in or affecting navigable waters of the submit a pre-construction notification to
excavation, backfill, or bedding for the United States even if there is no the district engineer prior to
utility lines, in all waters of the United associated discharge of dredged or fill commencing the activity if the bank
States, provided there is no change in material (See 33 CFR Part 322). stabilization activity: (1) Involves
preconstruction contours. A ‘‘utility Overhead utility lines constructed over discharges into special aquatic sites; (2)
line’’ is defined as any pipe or pipeline section 10 waters and utility lines that is in excess of 500 feet in length; or (3)
for the transportation of any gaseous, are routed in or under section 10 waters will involve the discharge of greater
liquid, liquescent, or slurry substance, without a discharge of dredged or fill than an average of one cubic yard per
for any purpose, and any cable, line, or material require a section 10 permit. running foot along the bank below the
wire for the transmission for any Notification: The permittee must plane of the ordinary high water mark
purpose of electrical energy, telephone, submit a pre-construction notification to or the high tide line. (See general
and telegraph messages, and radio and the district engineer prior to condition 27.) (Sections 10 and 404.)
television communication. The term commencing the activity if: (1) A section 14. Linear Transportation Projects.
‘‘utility line’’ does not include activities 10 permit is required, or (2) the Activities required for the construction,
that drain a water of the United States, discharge will result in the permanent expansion, modification, or
such as drainage tile or french drains, or temporary loss of greater than 1⁄10 improvement of linear transportation
but it does apply to pipes conveying acre of waters of the United States. (See projects (e.g., roads, highways, railways,
drainage from another area. general condition 27.) (Sections 10 and trails, airport runways, and taxiways) in
Material resulting from trench 404.) waters of the United States. For linear
excavation may be temporarily sidecast transportation projects in non-tidal
Note 1: Where the proposed utility line is
into waters of the United States for no constructed or installed in navigable waters waters, the discharge cannot cause the
more than three months, provided that of the United States (i.e., section 10 waters), loss of greater than 1⁄2-acre of waters of
the material is not placed in such a copies of the PCN and NWP verification will the United States. For linear
manner that it is dispersed by currents be sent by the Corps to the National Oceanic transportation projects in tidal waters,
or other forces. The district engineer and Atmospheric Administration (NOAA), the discharge cannot cause the loss of
National Ocean Service (NOS), for charting greater than 1⁄3-acre of waters of the
may extend the period of temporary side the utility line to protect navigation.
casting for no more than a total of 180 United States. Any stream channel
days, where appropriate. In wetlands, Note 2: Pipes or pipelines used to transport modification, including bank
the top 6″ to 12″ of the trench should gaseous, liquid, liquescent, or slurry stabilization, is limited to the minimum
normally be backfilled with topsoil from substances over navigable waters of the necessary to construct or protect the
the trench. The trench cannot be United States are considered to be bridges, linear transportation project; such
constructed or backfilled in such a not utility lines, and may require a permit modifications must be in the immediate
from the U.S. Coast Guard pursuant to vicinity of the project.
manner as to drain waters of the United
Section 9 of the Rivers and Harbors Act of This NWP cannot be used to authorize
States (e.g., backfilling with extensive 1899. However, any discharges of dredged or
gravel layers, creating a french drain non-linear features commonly
fill material into waters of the United States
effect). Any exposed slopes and stream associated with such pipelines will require a
associated with transportation projects,
banks must be stabilized immediately section 404 permit. such as vehicle maintenance or storage
upon completion of the utility line buildings, parking lots, train stations, or
crossing of each waterbody. 13. Bank Stabilization. Bank aircraft hangars. This NWP does not
stabilization activities necessary for authorize temporary construction,
This NWP authorizes the
erosion prevention, provided the access, and dewatering necessary to
construction, maintenance, or
activity meets all of the following construct the linear transportation
expansion of substation facilities
criteria: project; those activities may be
associated with a power line or utility (a) No material is placed in excess of
line in non-tidal waters of the United authorized by NWP 33.
the minimum needed for erosion Notification: The permittee must
States, provided the activity does not protection;
result in the loss of greater than 1⁄2 acre submit a pre-construction notification to
(b) The bank stabilization activity is the district engineer prior to
of those waters. This NWP does not no more than 500 feet in length, unless
authorize discharges into non-tidal commencing the activity if: (1) The
this criterion is waived in writing by the discharge causes the loss of greater than
wetlands adjacent to tidal waters of the district engineer; 1⁄10 acre of waters of the United States;
United States to construct substation (c) The activity will not exceed an
facilities. or (2) there is a discharge in a special
average of one cubic yard per running aquatic site, including wetlands. (See
This NWP authorizes the construction foot placed along the bank below the general condition 27.) (Sections 10 and
or maintenance of foundations for plane of the ordinary high water mark 404.)
overhead utility line towers, poles, and or the high tide line, unless this
anchors in all waters of the United criterion is waived in writing by the Note: Some discharges for the construction
States, provided the foundations are the district engineer; of farm roads, forest roads, or temporary
minimum size necessary and separate (d) No material is of the type, or is roads for moving mining equipment may
footings for each tower leg (rather than qualify for an exemption under Section 404(f)
placed in any location, or in any of the Clean Water Act (see 33 CFR 323.4).
a larger single pad) are used where manner, to impair surface water flow
feasible. into or out of any wetland area; 15. U.S. Coast Guard Approved
This permit does not authorize the (e) No material is placed in a manner Bridges. Discharges of dredged or fill
construction or maintenance of access that will be eroded by normal or material incidental to the construction
roads. The construction of permanent expected high flows (properly anchored of bridges across navigable waters of the
maintenance roads may be authorized trees and treetops may be used in low United States, including cofferdams,
by NWP 14 and the construction of energy areas); and, abutments, foundation seals, piers, and
temporary construction and access fills, mark or the high tide line, or (2) the vessel is listed or eligible for listing in
provided such discharges have been discharge is in a special aquatic site, the National Register of Historic Places;
authorized by the U.S. Coast Guard as including wetlands. (See general or (2) if there is a discharge of dredged
part of the bridge permit. Causeways condition 27.) (Sections 10 and 404.) or fill material in a special aquatic site,
and approach fills are not included in 19. Minor Dredging. Dredging of no including wetlands. (See general
this NWP and will require an individual more than 25 cubic yards below the condition 27.) The permittee cannot
section 404 permit or a regional general plane of the ordinary high water mark commence the activity until informed
section 404 permit. (Section 404.) or the mean high water mark from by the district engineer that compliance
16. Return Water From Upland navigable waters of the United States with the ‘‘Historic Properties’’ general
Contained Disposal Areas. Return water (i.e., section 10 waters). This NWP does condition is completed.
from an upland contained dredged not authorize the dredging or
material disposal area. The return water degradation through siltation of coral Note: If a removed vessel is disposed of in
waters of the United States, a permit from the
from a contained disposal area is reefs, sites that support submerged
U.S. EPA may be required (see 40 CFR 229.3).
administratively defined as a discharge aquatic vegetation (including sites If a Corps permit is required for vessel
of dredged material by 33 CFR 323.2(d), where submerged aquatic vegetation is disposal in waters of the United States, a
even though the disposal itself occurs documented to exist but may not be separate Department of the Army
on the upland and does not require a present in a given year), anadromous authorization will be required.
section 404 permit. This NWP satisfies fish spawning areas, or wetlands, or the
the technical requirement for a section connection of canals or other artificial 23. Approved Categorical Exclusions.
404 permit for the return water where waterways to navigable waters of the Activities undertaken, assisted,
the quality of the return water is United States (see 33 CFR 322.5(g)). authorized, regulated, funded, or
controlled by the state through the (Sections 10 and 404.) financed, in whole or in part, by another
section 401 certification procedures. 20. Oil Spill Cleanup. Activities Federal agency or department where:
required for the containment and (a) That agency or department has
The dredging activity may require a
cleanup of oil and hazardous substances determined, pursuant to the Council on
section 404 permit (33 CFR 323.2(d)),
that are subject to the National Oil and Environmental Quality’s implementing
and will require a section 10 permit if
Hazardous Substances Pollution regulations for the National
located in navigable waters of the
Contingency Plan (40 CFR part 300) Environmental Policy Act (40 CFR part
United States. (Section 404)
17. Hydropower Projects. Discharges provided that the work is done in 1500 et seq.), that the activity is
of dredged or fill material associated accordance with the Spill Control and categorically excluded from
with hydropower projects having: (a) Countermeasure Plan required by 40 environmental documentation, because
Less than 5000 kW of total generating CFR 112.3 and any existing state it is included within a category of
capacity at existing reservoirs, where contingency plan and provided that the actions which neither individually nor
the project, including the fill, is licensed Regional Response Team (if one exists cumulatively have a significant effect on
by the Federal Energy Regulatory in the area) concurs with the proposed the human environment; and
containment and cleanup action. (b) The Office of the Chief of
Commission (FERC) under the Federal
(Sections 10 and 404.) Engineers (Attn: CECW–CO) has
Power Act of 1920, as amended; or (b)
21. Surface Coal Mining Operations. concurred with that agency’s or
a licensing exemption granted by the
Discharges of dredged or fill material department’s determination that the
FERC pursuant to Section 408 of the
into waters of the United States activity is categorically excluded and
Energy Security Act of 1980 (16 U.S.C.
associated with surface coal mining and approved the activity for authorization
2705 and 2708) and Section 30 of the
reclamation operations provided the under NWP 23.
Federal Power Act, as amended. The Office of the Chief of Engineers
Notification: The permittee must activities are already authorized by the
Department of Interior (DOI), Office of may require additional conditions,
submit a pre-construction notification to
Surface Mining (OSM), or by states with including pre-construction notification,
the district engineer prior to
approved programs under Title V of the for authorization of an agency’s
commencing the activity. (See general
Surface Mining Control and categorical exclusions under this NWP.
condition 27.) (Section 404) Notification: Certain categorical
18. Minor Discharges. Minor Reclamation Act of 1977 or are currently
being processed as part of an integrated exclusions approved for authorization
discharges of dredged or fill material
permit processing procedure. under this NWP require the permittee to
into all waters of the United States,
Notification: The permittee must submit a pre-construction notification to
provided the activity meets all of the
submit a pre-construction notification to the district engineer prior to
following criteria:
(a) The quantity of discharged the district engineer and receive written commencing the activity (see general
material and the volume of area authorization prior to commencing the condition 27). The activities that require
excavated do not exceed 25 cubic yards activity. (See general condition 27.) pre-construction notification are listed
below the plane of the ordinary high (Sections 10 and 404.) in the appropriate Regulatory Guidance
water mark or the high tide line; 22. Removal of Vessels. Temporary Letters. (Sections 10 and 404.)
(b) The discharge will not cause the structures or minor discharges of Note: The agency or department may
loss of more than 1⁄10 acre of waters of dredged or fill material required for the submit an application for an activity believed
the United States; and removal of wrecked, abandoned, or to be categorically excluded to the Office of
(c) The discharge is not placed for the disabled vessels, or the removal of man- the Chief of Engineers (Attn: CECW–CO).
purpose of a stream diversion. made obstructions to navigation. This Prior to approval for authorization under this
Notification: The permittee must NWP does not authorize maintenance NWP of any agency’s activity, the Office of
submit a pre-construction notification to the Chief of Engineers will solicit public
dredging, shoal removal, or riverbank
comment. Current activities approved for

the district engineer prior to snagging. authorization under this NWP are found in
commencing the activity if: (1) The Notification: The permittee must the Corps’ Regulatory Guidance Letters,
discharge or the volume of area submit a pre-construction notification to which are available at: http://
excavated exceeds 10 cubic yards below the district engineer prior to www.usace.army.mil/inet/functions/cw/
the plane of the ordinary high water commencing the activity if: (1) The cecwo/reg/rglsindx.htm
24. Indian Tribe or State drainage ditches; the removal of existing limited term wetland restoration or
Administered Section 404 Programs. drainage structures; the construction of establishment agreement or permit, and
Any activity permitted by a state or small nesting islands; the construction is authorized in these circumstances
Indian Tribe administering its own of open water areas; the construction of even if the discharge occurs after this
section 404 permit program pursuant to oyster habitat over unvegetated bottom NWP expires. The five-year reversion
33 U.S.C. 1344(g)–(l) is permitted in tidal waters; shellfish seeding; limit does not apply to agreements
pursuant to Section 10 of the Rivers and activities needed to reestablish without time limits reached between the
Harbors Act of 1899. (Section 10) vegetation, including plowing or discing landowner and the FWS, NRCS, FSA,
for seed bed preparation and the NMFS, NOS, or an appropriate state
Note 1: As of the date of the promulgation
of this NWP, only New Jersey and Michigan planting of appropriate wetland species; cooperating agency. This NWP also
administer their own section 404 permit mechanized land clearing to remove authorizes discharges of dredged or fill
programs. non-native invasive, exotic, or nuisance material in waters of the United States
vegetation; and other related activities. for the reversion of wetlands that were
Note 2: Those activities that do not involve Only native plant species should be restored, enhanced, or established on
a State section 404 permit are not included planted at the site. prior-converted cropland that has not
in this NWP, but certain structures will be This NWP does not authorize the been abandoned or on uplands, in
exempted by Section 154 of Pub. L. 94–587, conversion of a stream or natural
90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR
accordance with a binding agreement
322.3(a)(2)). wetlands to another aquatic use, such as between the landowner and NRCS, FSA,
the establishment of an impoundment FWS, or their designated state
25. Structural Discharges. Discharges for waterfowl habitat. This NWP does cooperating agencies (even though the
of material such as concrete, sand, rock, not authorize stream channelization. restoration, enhancement, or
etc., into tightly sealed forms or cells However, this NWP authorizes the establishment activity did not require a
where the material will be used as a relocation of non-tidal waters, including section 404 permit). The prior condition
structural member for standard pile non-tidal wetlands, on the project site will be documented in the original
supported structures, such as bridges, provided there are net gains in aquatic agreement or permit, and the
transmission line footings, and resource functions and services. For determination of return to prior
walkways or for general navigation, example, this NWP may authorize the conditions will be made by the Federal
such as mooring cells, including the establishment of an open water agency or appropriate state agency
excavation of bottom material from impoundment in a non-tidal emergent executing the agreement or permit.
within the form prior to the discharge of wetland, provided the non-tidal Before conducting any reversion activity
concrete, sand, rock, etc. This NWP emergent wetland is replaced by the permittee or the appropriate Federal
does not authorize filled structural establishing that wetland type on the or state agency must notify the district
members that would support buildings, project site. This NWP does not engineer and include the documentation
building pads, homes, house pads, authorize the relocation of tidal waters of the prior condition. Once an area has
parking areas, storage areas and other or the conversion of tidal waters, reverted to its prior physical condition,
such structures. The structure itself may including tidal wetlands, to other it will be subject to whatever the Corps
require a section 10 permit if located in aquatic uses, such as the conversion of Regulatory requirements will be at that
navigable waters of the United States. tidal wetlands into open water future date. The requirement that the
(Section 404) impoundments. activity result in a net increase in
26. [Reserved] Reversion. For enhancement, aquatic resource functions and services
27. Aquatic Habitat Restoration, restoration, and establishment activities does not apply to reversion activities
Establishment, and Enhancement conducted: (1) In accordance with the meeting the above conditions. Except
Activities. Activities in waters of the terms and conditions of a binding for the activities described above, this
United States associated with the wetland enhancement, restoration, or NWP does not authorize any future
restoration of former waters, the establishment agreement between the discharge of dredged or fill material
enhancement of degraded tidal and non- landowner and the U.S. Fish and associated with the reversion of the area
tidal wetlands and riparian areas, the Wildlife Service (FWS), the Natural to its prior condition. In such cases a
establishment of tidal and non-tidal Resources Conservation Service (NRCS), separate permit would be required for
wetlands and riparian areas, the the Farm Service Agency (FSA), the any reversion.
restoration of non-tidal streams, and the National Marine Fisheries Service Reporting: For those activities that do
restoration and enhancement of non- (NMFS), the National Ocean Service not require pre-construction
tidal open waters, provided those (NOS), or their designated state notification, the permittee must submit
activities result in net increases in cooperating agencies; (2) as voluntary to the district engineer a copy of: (1) The
aquatic resource functions and services. wetland restoration, enhancement, and binding wetland enhancement,
To the extent that a Corps permit is establishment actions documented by restoration, or establishment agreement;
required, activities authorized by this the NRCS pursuant to NRCS regulations; (2) the NRCS documentation for the
NWP include, but are not limited to: or (3) on reclaimed surface coal mine voluntary wetland restoration,
The removal of accumulated sediments; lands, in accordance with a Surface enhancement, or establishment action;
the installation, removal, and Mining Control and Reclamation Act or (3) the SMCRA permit issued by OSM
maintenance of small water control permit issued by the OSM or the or the applicable state agency. These
structures, dikes, and berms; the applicable state agency, this NWP also documents must be submitted to the
installation of current deflectors; the authorizes any future discharge of district engineer at least 30 days prior to
enhancement, restoration, or dredged or fill material associated with commencing activities in waters of the
establishment of riffle and pool stream the reversion of the area to its United States authorized by this NWP.
structure; the placement of in-stream documented prior condition and use Notification. Except as provided
habitat structures; modifications of the (i.e., prior to the restoration, below, the permittee must submit a pre-
stream bed and/or banks to restore or enhancement, or establishment construction notification to the district
establish stream meanders; the activities). The reversion must occur engineer prior to commencing the
backfilling of artificial channels and within five years after expiration of a activity. (See general condition 27.)
Except for reversion activities, pre- waters of United States authorized by maintenance baseline, are authorized
construction notification is not required this NWP cannot exceed 1⁄2 acre. This under this NWP. This NWP does not
for: includes any loss of waters of the authorize the removal of sediment and
(1) Activities conducted on non- United States associated with associated vegetation from the natural
Federal public lands and private lands, development of individual subdivision water courses except when these
in accordance with the terms and lots. activities have been included in the
conditions of a binding wetland Notification: The permittee must maintenance baseline. All dredged
enhancement, restoration, or submit a pre-construction notification to material must be placed in an upland
establishment agreement between the the district engineer prior to site or an authorized disposal site in
landowner and the U.S. FWS, NRCS, commencing the activity. (See general waters of the United States, and proper
FSA, NMFS, NOS, or their designated condition 27.) (Sections 10 and 404.) siltation controls must be used.
state cooperating agencies; 30. Moist Soil Management for Maintenance Baseline: The
(2) Voluntary wetland restoration, Wildlife. Discharges of dredged or fill maintenance baseline is a description of
enhancement, and establishment actions material into non-tidal waters of the the physical characteristics (e.g., depth,
documented by the NRCS pursuant to United States and maintenance width, length, location, configuration, or
NRCS regulations; or activities that are associated with moist design flood capacity, etc.) of a flood
(3) The reclamation of surface coal soil management for wildlife for the control project within which
mine lands, in accordance with an purpose of continuing ongoing, site- maintenance activities are normally
SMCRA permit issued by the OSM or specific, wildlife management activities authorized by NWP 31, subject to any
the applicable state agency. where soil manipulation is used to case-specific conditions required by the
However, the permittee should submit manage habitat and feeding areas for district engineer. The district engineer
a copy of the appropriate wildlife. Such activities include, but are will approve the maintenance baseline
documentation. (Sections 10 and 404.) not limited to, plowing or discing to based on the approved or constructed
Note: This NWP can be used to authorize impede succession, preparing seed beds, capacity of the flood control facility,
compensatory mitigation projects, including or establishing fire breaks. Sufficient whichever is smaller, including any
mitigation banks and in-lieu fee programs. riparian areas must be maintained areas where there are no constructed
However, this NWP does not authorize the adjacent to all open water bodies, channels, but which are part of the
reversion of an area used for a compensatory streams, etc., to preclude water quality facility. The prospective permittee will
mitigation project to its prior condition, since degradation due to erosion and provide documentation of the physical
compensatory mitigation is generally sedimentation. This NWP does not characteristics of the flood control
intended to be permanent.
authorize the construction of new dikes, facility (which will normally consist of
28. Modifications of Existing Marinas. roads, water control structures, etc. as-built or approved drawings) and
Reconfiguration of existing docking associated with the management areas. documentation of the approved and
facilities within an authorized marina The activity must not result in a net loss constructed design capacities of the
area. No dredging, additional slips, dock of aquatic resource functions and flood control facility. If no evidence of
spaces, or expansion of any kind within services. This NWP does not authorize the constructed capacity exists, the
waters of the United States is authorized the conversion of wetlands to uplands, approved capacity will be used. The
by this NWP. (Section 10.) impoundments or other open water documentation will also include best
29. Residential Developments. bodies. (Section 404) management practices to ensure that the
Discharges of dredged or fill material impacts to the aquatic environment are
Note: The repair, maintenance, or
into non-tidal waters of the United replacement of existing water control minimal, especially in maintenance
States for the construction or expansion structures or the repair or maintenance of areas where there are no constructed
of a single residence or a multiple unit dikes may be authorized by NWP 3. channels. (The Corps may request
residential development. This NWP maintenance records in areas where
authorizes the construction of building 31. Maintenance of Existing Flood there has not been recent maintenance.)
foundations and building pads and Control Facilities. Discharges of dredged Revocation or modification of the final
attendant features that are necessary for or fill material resulting from activities determination of the maintenance
the use of the residence or residential associated with the maintenance of baseline can only be done in accordance
development. Attendant features may existing flood control facilities, with 33 CFR 330.5. Except in
include but are not limited to roads, including debris basins, retention/ emergencies as described below, this
parking lots, garages, yards, utility lines, detention basins, levees, and channels NWP cannot be used until the district
storm water management facilities, that: (i) Were previously authorized by engineer approves the maintenance
septic fields, and recreation facilities the Corps by individual permit, general baseline and determines the need for
such as playgrounds, playing fields, and permit, by 33 CFR 330.3, or did not mitigation and any regional or activity-
golf courses (provided the golf course is require a permit at the time they were specific conditions. Once determined,
an integral part of the residential constructed, or (ii) were constructed by the maintenance baseline will remain
development). the Corps and transferred to a non- valid for any subsequent reissuance of
The discharge must not cause the loss Federal sponsor for operation and this NWP. This NWP does not authorize
of greater than 1⁄2-acre of non-tidal maintenance. Activities authorized by maintenance of a flood control facility
waters of the United States, including this NWP are limited to those resulting that has been abandoned. A flood
the loss of no more than 300 linear feet from maintenance activities that are control facility will be considered
of stream bed, unless for intermittent conducted within the ‘‘maintenance abandoned if it has operated at a
and ephemeral stream beds this 300 baseline,’’ as described in the definition significantly reduced capacity without
linear foot limit is waived in writing by below. Activities, including the needed maintenance being
the district engineer. This NWP does not discharges of dredged or fill materials accomplished in a timely manner.
authorize discharges into non-tidal associated with maintenance activities Mitigation: The district engineer will
wetlands adjacent to tidal waters. in flood control facilities in any determine any required mitigation one-
Subdivisions: For residential watercourse that have previously been time only for impacts associated with
subdivisions, the aggregate total loss of determined to be within the maintenance work at the same time that
the maintenance baseline is approved. dredged or fill material, remaining in 33. Temporary Construction, Access,
Such one-time mitigation will be place, or undertaken for mitigation, and Dewatering. Temporary structures,
required when necessary to ensure that restoration, or environmental benefit in work and discharges, including
adverse environmental impacts are no compliance with either: cofferdams, necessary for construction
more than minimal, both individually (i) The terms of a final written Corps activities or access fills or dewatering of
and cumulatively. Such mitigation will non-judicial settlement agreement construction sites, provided that the
only be required once for any specific resolving a violation of Section 404 of associated primary activity is authorized
reach of a flood control project. the Clean Water Act and/or Section 10 by the Corps of Engineers or the U.S.
However, if one-time mitigation is of the Rivers and Harbors Act of 1899; Coast Guard. This NWP also authorizes
required for impacts associated with or the terms of an EPA 309(a) order on temporary structures, work and
maintenance activities, the district consent resolving a violation of Section discharges, including cofferdams,
engineer will not delay needed 404 of the Clean Water Act, provided necessary for construction activities not
maintenance, provided the district that: subject to the Corps or U.S. Coast Guard
engineer and the permittee establish a (a) The unauthorized activity affected permit requirements. Appropriate
schedule for identification, approval, no more than 5 acres of non-tidal waters measures must be taken to maintain
development, construction and or 1 acre of tidal waters; near normal downstream flows and to
completion of any such required (b) The settlement agreement provides minimize flooding. Fill must consist of
mitigation. Once the one-time for environmental benefits, to an equal materials, and be placed in a manner,
mitigation described above has been or greater degree, than the that will not be eroded by expected high
completed, or a determination made environmental detriments caused by the flows. The use of dredged material may
that mitigation is not required, no unauthorized activity that is authorized be allowed if the district engineer
further mitigation will be required for by this NWP; and determines that it will not cause more
maintenance activities within the (c) The district engineer issues a
than minimal adverse effects on aquatic
maintenance baseline. In determining verification letter authorizing the
resources. Following completion of
appropriate mitigation, the district activity subject to the terms and
construction, temporary fill must be
engineer will give special consideration conditions of this NWP and the
entirely removed to upland areas,
to natural water courses that have been settlement agreement, including a
dredged material must be returned to its
included in the maintenance baseline specified completion date; or
(ii) The terms of a final Federal court original location, and the affected areas
and require compensatory mitigation must be restored to the pre-project
and/or best management practices as decision, consent decree, or settlement
agreement resulting from an conditions. Cofferdams cannot be used
appropriate. to dewater wetlands or other aquatic
Emergency Situations: In emergency enforcement action brought by the
United States under Section 404 of the areas to change their use. Structures left
situations, this NWP may be used to in place after cofferdams are removed
authorize maintenance activities in Clean Water Act and/or Section 10 of
the Rivers and Harbors Act of 1899; or require a section 10 permit if located in
flood control facilities for which no navigable waters of the United States.
maintenance baseline has been (iii) The terms of a final court
decision, consent decree, settlement (See 33 CFR part 322.)
approved. Emergency situations are
agreement, or non-judicial settlement Notification: The permittee must
those which would result in an
agreement resulting from a natural submit a pre-construction notification to
unacceptable hazard to life, a significant
loss of property, or an immediate, resource damage claim brought by a the district engineer prior to
unforeseen, and significant economic trustee or trustees for natural resources commencing the activity (see general
hardship if action is not taken before a (as defined by the National Contingency condition 27). The pre-construction
maintenance baseline can be approved. Plan at 40 CFR subpart G) under Section notification must include a mitigation
In such situations, the determination of 311 of the Clean Water Act, Section 107 plan of reasonable measures to avoid
mitigation requirements, if any, may be of the Comprehensive Environmental and minimize adverse effects to aquatic
deferred until the emergency has been Response, Compensation and Liability resources. (Sections 10 and 404.)
resolved. Once the emergency has Act, Section 312 of the National Marine 34. Cranberry Production Activities.
ended, a maintenance baseline must be Sanctuaries Act, Section 1002 of the Oil Discharges of dredged or fill material for
established expeditiously, and Pollution Act of 1990, or the Park dikes, berms, pumps, water control
mitigation, including mitigation for System Resource Protection Act at 16 structures or leveling of cranberry beds
maintenance conducted during the U.S.C. 19jj, to the extent that a Corps associated with expansion,
emergency, must be required as permit is required. enhancement, or modification activities
appropriate. Compliance is a condition of the NWP at existing cranberry production
Notification: The permittee must itself. Any authorization under this operations. The cumulative total acreage
submit a pre-construction notification to NWP is automatically revoked if the of disturbance per cranberry production
the district engineer before any permittee does not comply with the operation, including but not limited to,
maintenance work is conducted (see terms of this NWP or the terms of the filling, flooding, ditching, or clearing,
general condition 27). The pre- court decision, consent decree, or must not exceed 10 acres of waters of
construction notification may be for judicial/non-judicial settlement the United States, including wetlands.
activity-specific maintenance or for agreement. This NWP does not apply to The activity must not result in a net loss
maintenance of the entire flood control any activities occurring after the date of of wetland acreage. This NWP does not
facility by submitting a five-year (or the decision, decree, or agreement that authorize any discharge of dredged or
less) maintenance plan. The pre- are not for the purpose of mitigation, fill material related to other cranberry
construction notification must include a restoration, or environmental benefit. production activities such as
description of the maintenance baseline Before reaching any settlement warehouses, processing facilities, or
and the dredged material disposal site. agreement, the Corps will ensure parking areas. For the purposes of this
(Sections 10 and 404.) compliance with the provisions of 33 NWP, the cumulative total of 10 acres
32. Completed Enforcement Actions. CFR part 326 and 33 CFR 330.6(d)(2) will be measured over the period that
Any structure, work, or discharge of and (e). (Sections 10 and 404.) this NWP is valid.
Notification: The permittee must emergency Watershed Protection The discharge must not cause the loss
submit a pre-construction notification to Program (7 CFR part 624); or of greater than 1⁄2-acre of non-tidal
the district engineer prior to (b) The U.S. Forest Service under its waters of the United States, including
commencing the activity. For an Burned-Area Emergency Rehabilitation the loss of no more than 300 linear feet
existing cranberry production operation, Handbook (FSH 509.13); or of stream bed, unless for intermittent
the pre-construction notification needs (c) The Department of the Interior for and ephemeral stream beds this 300
only to be submitted once during the wildland fire management burned area linear foot limit is waived in writing by
period that this NWP is valid, and the emergency stabilization and the district engineer. This NWP does not
NWP would authorize that existing rehabilitation (DOI Manual part 620, Ch. authorize discharges into non-tidal
operation, provided the 10-acre limit is 3). wetlands adjacent to tidal waters.
not exceeded. (See general condition Notification: The permittee must Notification: The permittee must
27.) (Section 404.) submit a pre-construction notification to submit a pre-construction notification to
35. Maintenance Dredging of Existing the district engineer prior to the district engineer prior to
Basins. Excavation and removal of commencing the activity (see general commencing the activity. (See general
accumulated sediment for maintenance condition 27). (Sections 10 and 404.) condition 27.) (Sections 10 and 404.)
of existing marina basins, access 38. Cleanup of Hazardous and Toxic 40. Agricultural Activities. Discharges
channels to marinas or boat slips, and Waste. Specific activities required to of dredged or fill material into non-tidal
boat slips to previously authorized effect the containment, stabilization, or waters of the United States for
depths or controlling depths for ingress/ removal of hazardous or toxic waste agricultural activities, including the
egress, whichever is less, provided the materials that are performed, ordered, or construction of building pads for farm
dredged material is deposited at an sponsored by a government agency with buildings. Authorized activities include
upland site and proper siltation controls established legal or regulatory authority. the installation, placement, or
are used. (Section 10.) Court ordered remedial action plans or construction of drainage tiles, ditches,
36. Boat Ramps. Activities required related settlements are also authorized or levees; mechanized land clearing;
for the construction of boat ramps, by this NWP. This NWP does not land leveling; the relocation of existing
provided the activity meets all of the authorize the establishment of new serviceable drainage ditches constructed
following criteria: disposal sites or the expansion of in waters of the United States; and
(a) The discharge into waters of the existing sites used for the disposal of similar activities. This NWP does not
United States does not exceed 50 cubic hazardous or toxic waste. authorize discharges into non-tidal
yards of concrete, rock, crushed stone or Notification: The permittee must wetlands adjacent to tidal waters.
gravel into forms, or placement of pre- submit a pre-construction notification to This NWP also authorizes the
cast concrete planks or slabs, unless the the district engineer prior to construction of farm ponds in non-tidal
50 cubic yard limit is waived in writing commencing the activity. (See general waters of the United States, excluding
by the district engineer; condition 27.) (Sections 10 and 404.) perennial streams, provided the farm
(b) The boat ramp does not exceed 20 pond is used solely for agricultural
feet in width, unless this criterion is Note: Activities undertaken entirely on a
Comprehensive Environmental Response,
purposes. This NWP does not authorize
waived in writing by the district Compensation, and Liability Act (CERCLA) the construction of aquaculture ponds.
engineer; site by authority of CERCLA as approved or This NWP also authorizes discharges
(c) The base material is crushed stone, required by EPA, are not required to obtain of dredged or fill material into non-tidal
gravel or other suitable material; permits under Section 404 of the Clean Water waters of the United States to relocate
(d) The excavation is limited to the Act or Section 10 of the Rivers and Harbors existing serviceable drainage ditches
area necessary for site preparation and Act. constructed in non-tidal streams.
all excavated material is removed to the The discharge must not cause the loss
upland; and, 39. Commercial and Institutional of greater than 1⁄2-acre of non-tidal
(e) No material is placed in special Developments. Discharges of dredged or waters of the United States. This NWP
aquatic sites, including wetlands. fill material into non-tidal waters of the does not authorize discharges into non-
The use of unsuitable material that is United States for the construction or tidal wetlands adjacent to tidal waters.
structurally unstable is not authorized. expansion of commercial and This NWP does not authorize the
If dredging in navigable waters of the institutional building foundations and relocation of greater than 300 linear feet
United States is necessary to provide building pads and attendant features of existing serviceable drainage ditches
access to the boat ramp, the dredging that are necessary for the use and constructed in non-tidal streams, unless
may be authorized by another NWP, a maintenance of the structures. for drainage ditches constructed in
regional general permit, or an individual Attendant features may include, but are intermittent and ephemeral streams, this
permit. not limited to, roads, parking lots, 300 linear foot limit is waived in writing
Notification: The permittee must garages, yards, utility lines, storm water by the district engineer.
submit a pre-construction notification to management facilities, and recreation Notification: The permittee must
the district engineer prior to facilities such as playgrounds and submit a pre-construction notification to
commencing the activity if: (1) The playing fields. Examples of commercial the district engineer prior to
discharge into waters of the United developments include retail stores, commencing the activity. (See general
States exceeds 50 cubic yards, or (2) the industrial facilities, restaurants, condition 27.) (Section 404.)
boat ramp exceeds 20 feet in width. (See business parks, and shopping centers.
general condition 27.) (Sections 10 and Examples of institutional developments Note: Some discharges for agricultural
include schools, fire stations, activities may qualify for an exemption under
404.)
Section 404(f) of the Clean Water Act (see 33
37. Emergency Watershed Protection government office buildings, judicial
CFR 323.4).
and Rehabilitation. Work done by or buildings, public works buildings,
funded by: libraries, hospitals, and places of 41. Reshaping Existing Drainage
(a) The Natural Resources worship. The construction of new golf Ditches. Discharges of dredged or fill
Conservation Service for a situation courses, new ski areas, or oil and gas material into non-tidal waters of the
requiring immediate action under its wells is not authorized by this NWP. United States, excluding non-tidal
wetlands adjacent to tidal waters, to material into non-tidal waters of the limit may be waived by the district
modify the cross-sectional configuration United States for the construction and engineer, provided the permittee can
of currently serviceable drainage ditches maintenance of stormwater management demonstrate funding, contract, or other
constructed in waters of the United facilities, including activities for the similar delays.
States, for the purpose of improving excavation of stormwater ponds/ This NWP also authorizes discharges
water quality. The reshaping of the facilities, detention basins, and of dredged or fill material, including
ditch cannot increase drainage capacity retention basins; the installation and dredging or excavation, into all waters
beyond the original design capacity nor maintenance of water control structures, of the United States for activities
can it expand the area drained by the outfall structures and emergency associated with the restoration of
ditch as originally designed (i.e., the spillways; and the maintenance upland areas damaged by storms, floods,
capacity of the ditch must be the same dredging of existing stormwater or other discrete events. This NWP
as originally designed and it cannot management ponds/facilities and authorizes bank stabilization to protect
drain additional wetlands or other detention and retention basins. the restored uplands. The restoration of
waters of the United States). The discharge must not cause the loss the damaged areas, including any bank
This NWP does not authorize the of greater than 1⁄2-acre of non-tidal stabilization, must not exceed the
relocation of drainage ditches waters of the United States, including contours, or ordinary high water mark,
constructed in waters of the United the loss of no more than 300 linear feet that existed before the damage occurred.
States; the location of the centerline of of stream bed, unless for intermittent The district engineer retains the right to
the reshaped drainage ditch must be and ephemeral stream beds this 300 determine the extent of the pre-existing
approximately the same as the location linear foot limit is waived in writing by conditions and the extent of any
of the centerline of the original drainage the district engineer. This NWP does not restoration work authorized by this
ditch. This NWP does not authorize authorize discharges into non-tidal NWP. The work must commence, or be
stream channelization or stream wetlands adjacent to tidal waters. This under contract to commence, within
relocation projects. NWP does not authorize discharges of two years of the date that a PCN is filed,
Notification: The permittee must dredged or fill material for the unless this condition is waived by the
submit a pre-construction notification to construction of new stormwater district engineer. This NWP cannot be
the district engineer prior to management facilities in perennial used to reclaim lands lost to normal
commencing the activity, if more than streams. erosion processes over an extended
500 linear feet of drainage ditch will be Maintenance activities are limited to period.
reshaped. (See general condition 27.) restoring the original design capacities Minor dredging is limited to the
(Section 404.) of the stormwater management facility. amount necessary to restore the pre-
42. Recreational Facilities. Discharges Notification: For the construction of existing bottom contours of the
of dredged or fill material into non-tidal new stormwater management facilities, waterbody. If temporary structures and
waters of the United States for the or the expansion of existing stormwater discharges, including cofferdams, are
construction or expansion of management facilities, the permittee necessary to conduct the repair,
recreational facilities. Examples of must submit a pre-construction rehabilitation, or replacement of
recreational facilities that may be notification to the district engineer prior structures or fills, separate authorization
authorized by this NWP include playing to commencing the activity. (See general is required.
fields (e.g., football fields, baseball condition 27.) (Section 404.) Notification: The permittee must
fields), basketball courts, tennis courts, 44. Mining Activities. Discharges of submit a pre-construction notification to
hiking trails, bike paths, golf courses, dredged or fill material into non-tidal the district engineer (see general
ski areas, horse paths, nature centers, waters of the United States for mining condition 27) within 12-months of the
and campgrounds (excluding activities, except for coal mining date of the damage. The pre-
recreational vehicle parks). This NWP activities. The discharge must not cause construction notification should include
also authorizes the construction or the loss of greater than 1⁄2-acre of non- documentation, such as a recent
expansion of small support facilities, tidal wetlands. This NWP does not topographic survey or photographs, to
such as maintenance and storage authorize discharges into non-tidal justify the extent of the proposed
buildings and stables that are directly wetlands adjacent to tidal waters. restoration. (Sections 10 and 404.)
related to the recreational activity, but it Notification: The permittee must
does not authorize the construction of submit a pre-construction notification to Note: Uplands lost as a result of a storm,
hotels, restaurants, racetracks, stadiums, the district engineer prior to flood, or other discrete event can be replaced
commencing the activity. (See general without a section 404 permit, if the uplands
arenas, or similar facilities.
condition 27.) If reclamation is required are restored to the ordinary high water mark
The discharge must not cause the loss (in non-tidal waters) or high tide line (in tidal
of greater than 1⁄2-acre of non-tidal by other statutes, then a copy of the waters). (See also 33 CFR 328.5.)
waters of the United States, including reclamation plan must be submitted
the loss of no more than 300 linear feet with the pre-construction notification. B. Discharges in Ditches and Canals.
of stream bed, unless for intermittent (Sections 10 and 404.) Discharges of dredged or fill material
and ephemeral stream beds this 300 A. Emergency Repair Activities. This into ditches and canals that are
linear foot limit is waived in writing by NWP authorizes the repair, constructed in uplands, receive water
the district engineer. This NWP does not rehabilitation, or replacement of from another water of the United States,
authorize discharges into non-tidal structures or fills destroyed or damaged divert water to another water of the
wetlands adjacent to tidal waters. by storms, floods, fire or other discrete United States, and are determined to be
Notification: The permittee must events, provided the repair, waters of the United States. The
submit a pre-construction notification to rehabilitation, or replacement is discharge must not cause the loss of
the district engineer prior to commenced, or is under contract to greater than one acre of waters of the
commencing the activity. (See general commence, within two years of the date United States. This NWP does not
condition 27.) (Section 404.) of their destruction or damage. In cases authorize discharges of dredged or fill
43. Stormwater Management of catastrophic events, such as material into ditches or canals
Facilities. Discharges of dredged or fill hurricanes or tornadoes, this two-year constructed in streams or other waters
of the United States, or in streams that (f) Any exposed slopes and stream into non-tidal waters of the United
have been relocated in uplands. banks must be stabilized immediately States associated with the remining and
Notification: The permittee must upon completion of the project; reclamation of lands that were
submit a pre-construction notification to (g) Additional maintenance activities previously mined for coal, provided the
the district engineer prior to done in conjunction with the time- activities are already authorized by the
commencing the activity, if the dredged sensitive inspection or repair must not Department of Interior (DOI), Office of
or fill material will be discharged into result in additional losses of waters of Surface Mining (OSM), or by states with
more than 500 linear feet of ditch or the United States; and, approved programs under Title V of the
canal. (See general condition 27.) (h) The permittee is a participant in
the Pipeline Repair and Environmental Surface Mining Control and
(Section 404.) Reclamation Act of 1977 or are currently
C. Pipeline Safety Program Designated Guidance System (PREGS).
Reporting: The permittee must submit being processed as part of an integrated
Time Sensitive Inspections and Repairs. permit processing procedure. Areas
Activities required for the inspection, a post construction report to the PHP
within seven days after completing the previously disturbed by mining
repair, rehabilitation, or replacement of
work. The report must be submitted activities include reclaimed mine sites,
any currently serviceable structure or
electronically to PHP via PREGS. The abandoned mine land areas, or lands
fill for pipelines that have been
report must contain the following under bond forfeiture contracts. The
identified by the Pipeline and
Hazardous Materials Safety information: project sites located in permittee must clearly demonstrate to
Administration’s Pipeline Safety waters of the United States, temporary the district engineer that the
Program (PHP) within the U.S. access routes, stream dewatering sites, reclamation plan will result in a net
Department of Transportation as time- temporary fills and temporary structures increase in aquatic resource functions.
sensitive (see 49 CFR parts 192 and 195) identified on a map of the pipeline As part of the project, the permittee may
and additional maintenance activities corridor; photographs of the pre- and conduct coal mining activities in an
done in conjunction with the time- post-construction work areas located in adjacent area, provided the newly
sensitive inspection and repair waters of the United States; and a list of mined area is less than 40 percent of the
activities. All activities must meet the best management practices employed area being remined and reclaimed.
following criteria: for each pipeline segment shown on the
map. (Section 10 and 404.) Notification: The permittee must
(a) Appropriate measures must be submit a pre-construction notification to
D. Commercial Shellfish Aquaculture
taken to maintain normal downstream the district engineer and receive written
Activities. This NWP authorizes the
flows and minimize flooding to the authorization prior to commencing the
installation of buoys, floats, racks, trays,
maximum extent practicable when activity. (See general condition 27.)
nets, lines, and other structures
temporary structures, work and (Sections 10 and 404.)
necessary for the continued operation of
discharges, including cofferdams, are
the aquaculture activity. This NWP also F. Underground Coal Mining
necessary for construction activities or
authorizes discharges of dredged or fill Activities. Discharges of dredged or fill
access fills or dewatering of
material necessary for shellfish seeding, material into non-tidal waters of the
construction sites;
rearing, cultivating, transplanting, and United States associated with
(b) Material resulting from trench
harvesting activities. Rafts and other underground coal mining and
excavation may be temporarily sidecast
floating structures must be securely reclamation operations provided the
into waters of the United States for no
anchored and clearly marked. activities are authorized by the
more than three months, provided that This NWP does not authorize the
the material is not placed in such a expansion of the project area for the Department of Interior (DOI), Office of
manner that it is dispersed by currents commercial shellfish aquaculture Surface Mining (OSM), or by states with
or other forces. The district engineer activity. This NWP does not authorize approved programs under Title V of the
may extend the period of temporary side the cultivation of new species (i.e., Surface Mining Control and
casting for no more than a total of 180 species not previously cultivated by the Reclamation Act of 1977 or are currently
days, where appropriate. The trench existing commercial shellfish being processed as part of an integrated
cannot be constructed or backfilled in aquaculture activity). permit processing procedure.
such a manner as to drain waters of the Notification: The permittee must The discharge must not cause the loss
United States (e.g., backfilling with submit a pre-construction notification to
extensive gravel layers, creating a french of greater than 1/2 acre of non-tidal
the district engineer if: (1) The project waters of the United States. This NWP
drain effect); area is greater than 25 acres; (2) more
(c) Temporary fill must consist of does not authorize discharges into non-
than 10 acres of the project area is tidal wetlands adjacent to tidal waters.
materials, and be placed in a manner, occupied by submerged aquatic
that will not be eroded by expected high This NWP does not authorize coal
vegetation; (3) the permittee intends to preparation and processing activities
flows. Temporary structures and fills relocate existing operations into
must be removed upon completion of outside of the mine site.
portions of the project area not
the activity and the affected areas previously used for aquaculture Notification: The permittee must
returned to pre-construction conditions; activities; or (4) dredge harvesting is submit a pre-construction notification to
(d) In wetlands, the top 6’’ to 12’’ of conducted in areas inhabited by the district engineer. (See general
the trench should normally be submerged aquatic vegetation. (See condition 27.) If reclamation is required
backfilled with topsoil from the trench general condition 27.) (Sections 10 and by other statutes, then a copy of the
so that there is no change in 404.) reclamation plan must be submitted
preconstruction contours;
Note: The permittee should notify the

with the pre-construction notification.
(e) To the maximum extent (Sections 10 and 404.)
practicable, the restoration of open applicable U.S. Coast Guard office regarding
the project.
waters must be to the pre-construction Note: Coal preparation and processing
course, condition, capacity, and location E. Coal Remining Activities. activities outside of the mine site may be
of the waterbody; Discharges of dredged or fill material authorized by NWP 21.
C. Nationwide Permit General migratory birds must be avoided to the 13. Removal of Temporary Fills.
Conditions maximum extent practicable. Temporary fills must be removed in
5. Shellfish Beds. No activity may their entirety and the affected areas
Note: To qualify for NWP authorization, occur in areas of concentrated shellfish returned to pre-construction conditions.
the prospective permittee must comply with populations, unless the activity is 14. Proper Maintenance. Any
the following general conditions, as directly related to a shellfish harvesting authorized structure or fill shall be
appropriate, in addition to any regional or activity authorized by NWPs 4 and D. properly maintained, including
case-specific conditions imposed by the 6. Suitable Material. No activity may
division engineer or district engineer.
maintenance to ensure public safety.
Prospective permittees should contact the
use unsuitable material (e.g., trash, 15. Wild and Scenic Rivers. No
appropriate Corps district office to determine debris, car bodies, asphalt, etc.). activity may occur in a component of
if regional conditions have been imposed on Material used for construction or the National Wild and Scenic River
an NWP. Prospective permittees should also discharged must be free from toxic System, or in a river officially
contact the appropriate Corps district office pollutants in toxic amounts (see Section designated by Congress as a ‘‘study
to determine the status of Clean Water Act 307 of the Clean Water Act). river’’ for possible inclusion in the
Section 401 water quality certification and/ 7. Water Supply Intakes. No activity system while the river is in an official
or Coastal Zone Management Act consistency may occur in the proximity of a public study status, unless the appropriate
for an NWP. water supply intake, except where the Federal agency with direct management
1. Navigation. (a) No activity may activity is for the repair or improvement responsibility for such river, has
cause more than a minimal adverse of public water supply intake structures determined in writing that the proposed
effect on navigation. or adjacent bank stabilization. activity will not adversely affect the
8. Adverse Effects From Wild and Scenic River designation or
(b) Any safety lights and signals Impoundments. If the activity creates an
prescribed by the U.S. Coast Guard, study status. Information on Wild and
impoundment of water, adverse effects Scenic Rivers may be obtained from the
through regulations or otherwise, must to the aquatic system due to accelerating appropriate Federal land management
be installed and maintained at the the passage of water, and/or restricting agency in the area (e.g., National Park
permittee’s expense on authorized its flow must be minimized to the Service, U.S. Forest Service, Bureau of
facilities in navigable waters of the maximum extent practicable. Land Management, U.S. Fish and
United States. 9. Management of Water Flows. To the Wildlife Service).
(c) The permittee understands and maximum extent practicable, the pre- 16. Tribal Rights. No activity or its
agrees that, if future operations by the construction course, condition, operation may impair reserved tribal
United States require the removal, capacity, and location of open waters rights, including, but not limited to,
relocation, or other alteration, of the must be maintained for each activity, reserved water rights and treaty fishing
structure or work herein authorized, or including stream channelization and and hunting rights.
if, in the opinion of the Secretary of the storm water management activities, 17. Endangered Species. (a) No
Army or his authorized representative, except as provided below. The activity activity is authorized under any NWP
said structure or work shall cause must be constructed to withstand which is likely to jeopardize the
unreasonable obstruction to the free expected high flows. The activity must continued existence of a threatened or
navigation of the navigable waters, the not restrict or impede the passage of endangered species or a species
permittee will be required, upon due normal or high flows, unless the proposed for such designation, as
notice from the Corps of Engineers, to primary purpose of the activity is to identified under the Federal Endangered
remove, relocate, or alter the structural impound water. The activity may alter Species Act (ESA), or which will
work or obstructions caused thereby, the pre-construction course, condition, destroy or adversely modify the critical
without expense to the United States. capacity, and location of open waters if habitat of such species. No activity is
No claim shall be made against the it benefits the aquatic environment (e.g., authorized under any NWP which ‘‘may
United States on account of any such stream restoration or relocation affect’’ a listed species or critical
removal or alteration. activities). habitat, unless Section 7 consultation
2. Aquatic Life Movements. No 10. Fills Within 100–Year addressing the effects of the proposed
activity may substantially disrupt the Floodplains. The activity must comply activity has been completed.
necessary life cycle movements, if with any applicable FEMA-approved (b) Non-federal permittees shall notify
known, of those species of aquatic life state or local floodplain management the district engineer if any listed species
indigenous to the waterbody, including requirements. or designated critical habitat might be
those species that normally migrate 11. Equipment. Heavy equipment affected or is in the vicinity of the
through the area, unless the activity’s working in wetlands or mudflats must project, or if the project is located in
primary purpose is to impound water. be placed on mats, or other measures designated critical habitat, and shall not
Culverts placed in streams must be must be taken to minimize soil begin work on the activity until notified
installed to maintain low flow disturbance. by the district engineer that the
conditions. 12. Soil Erosion and Sediment requirements of the ESA have been
3. Spawning Areas. Activities in Controls. Appropriate soil erosion and satisfied and that the activity is
spawning areas during spawning sediment controls must be used and authorized. For activities that may affect
seasons must be avoided to the maintained in effective operating Federally-listed endangered or
maximum extent practicable. Activities condition during construction, and all threatened species or designated critical
that result in the physical destruction exposed soil and other fills, as well as habitat, the pre-construction notification
(e.g., excavate, fill, or smother any work below the ordinary high water must include the name(s) of the
downstream by substantial turbidity) of mark or high tide line, must be endangered or threatened species that
an important spawning area are not permanently stabilized at the earliest may be affected by the proposed work
authorized. practicable date. Permittees are or that utilize the designated critical
4. Migratory Bird Breeding Areas. encouraged to perform work within habitat that may be affected by the
Activities in waters of the United States waters of the United States during proposed work. The district engineer
that serve as breeding areas for periods of low-flow or no-flow. will determine whether the proposed
activity ‘‘may affect’’ or will have ‘‘no obtained from the State Historic exceed 1⁄10 acre and require pre-
effect’’ to listed species and designated Preservation Officer or Tribal Historic construction notification, unless the
critical habitat and will notify the Preservation Officer, as appropriate, and district engineer determines in writing
applicant of the Corps’ determination the National Register of Historic Places that some other form of mitigation
within 45 days of receipt of a complete (see 33 CFR 330.4(g)). For activities that would be more environmentally
pre-construction notification. may affect historic properties listed in, appropriate and provides a project-
Applicants shall not begin work until or eligible for listing in, the National specific waiver of this requirement. For
the Corps has provided notification the Register of Historic Places, the pre- wetland losses of 1⁄10 acre or less that
proposed activities will have ‘‘no effect’’ construction notification must state require pre-construction notification,
on listed species or critical habitat, or which historic property may be affected the district engineer may determine on
until Section 7 consultation has been by the proposed work or include a a case-by-case basis that compensatory
completed. vicinity map indicating the location of mitigation is required to ensure that the
(c) As a result of formal or informal the historic property. activity result in minimal adverse
consultation with the FWS or NMFS the 19. Designated Critical Resource effects on the aquatic environment.
district engineer may add species- Waters. Critical resource waters include, Since the likelihood of success is greater
specific regional endangered species NOAA-designated marine sanctuaries, and the impacts to potentially valuable
conditions to the NWPs. National Estuarine Research Reserves, uplands are reduced, wetland
(d) Authorization of an activity by a state natural heritage sites, and restoration should be the first
NWP does not authorize the ‘‘take’’ of a outstanding national resource waters or compensatory mitigation option
threatened or endangered species as other waters officially designated by a considered.
defined under the ESA. In the absence state as having particular environmental (d) Compensatory mitigation will not
of separate authorization (e.g., an ESA or ecological significance and identified be used to increase the acreage losses
Section 10 Permit, a Biological Opinion by the district engineer after notice and allowed by the acreage limits of the
with ‘‘incidental take’’ provisions, etc.) opportunity for public comment. The NWPs. For example, if an NWP has an
from the U.S. FWS or the NMFS, both district engineer may also designate acreage limit of 1⁄2 acre, it cannot be
lethal and non-lethal ‘‘takes’’ of additional critical resource waters after used to authorize any project with
protected species are in violation of the notice and opportunity for comment. greater than 1⁄2 acre of loss of waters,
ESA. Information on the location of (a) Discharges of dredged or fill
even if mitigation is provided that
threatened and endangered species and material into waters of the United States
replaces or restores some of the lost
their critical habitat can be obtained are not authorized by NWPs 7, 12, 14,
waters. However, compensatory
directly from the offices of the U.S. FWS 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, and
mitigation can and should be used, as
and NMFS or their world wide Web 44 for any activity within, or directly
pages at http://www.fws.gov/ and necessary, to ensure that a project
affecting, critical resource waters,
http://www.noaa.gov/fisheries.html already meeting the established acreage
including wetlands adjacent to such
respectively. limits also satisfies the minimal impact
waters.
18. Historic Properties. (a) No activity (b) For NWPs 3, 8, 10, 13, 15, 18, 19, requirement associated with NWPs.
which may affect historic properties 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, and (e) Compensatory mitigation plans for
listed, or eligible for listing, in the 38, notification is required in projects in or near streams or other open
National Register of Historic Places is accordance with general condition 27, waters will normally include a
authorized, until the district engineer for any activity proposed in the requirement for the establishment,
has complied with the current designated critical resource waters maintenance, and legal protection (e.g.,
procedures for addressing the including wetlands adjacent to those conservation easements) of riparian
requirements of Section 106 of the waters. The district engineer may areas next to open waters. In some
National Historic Preservation Act authorize activities under these NWPs cases, riparian areas may be the only
(NHPA). only after it is determined that the compensatory mitigation required.
(b) The prospective permittee must impacts to the critical resource waters Riparian areas should consist of native
notify the district engineer if the will be no more than minimal. species. The width of the required
authorized activity may affect any 20. Mitigation. The district engineer riparian area will address documented
historic properties listed, determined to will consider the following factors when water quality or aquatic habitat loss
be eligible, or which the prospective determining appropriate and practicable concerns. Normally, the riparian area
permittee has reason to believe may be mitigation necessary to ensure that will be 25 to 50 feet wide on each side
eligible for listing on the National adverse effects on the aquatic of the stream, but the district engineer
Register of Historic Places, and shall not environment are minimal: may require slightly wider riparian
begin the activity until notified by the (a) The activity must be designed and areas to address documented water
district engineer that the requirements constructed to avoid and minimize quality or habitat loss concerns. Where
of the NHPA have been satisfied and adverse effects, both temporary and both wetlands and open waters exist on
that the activity is authorized. The permanent, to waters of the United the project site, the district engineer will
district engineer will notify the States to the maximum extent determine the appropriate
permittee within 45 days of receipt of a practicable at the project site (i.e., on compensatory mitigation (e.g., riparian
complete pre-construction notification site). areas or wetlands compensation) based
whether NHPA section 106 consultation (b) Mitigation in all its forms on what is best for the aquatic
is required. If NHPA section 106 (avoiding, minimizing, rectifying, environment on a watershed basis. In
consultation is required and will occur reducing, or compensating) will be cases where riparian areas are
under the NWP process, the district required to the extent necessary to determined to be the most appropriate
engineer will notify the permittee that ensure that the adverse effects to the form of compensatory mitigation, the
he or she cannot begin work until aquatic environment are minimal. district engineer may waive or reduce
consultation is completed. (c) Compensatory mitigation at a the requirement to provide wetland
(c) Information on the location and minimum one-for-one ratio will be compensatory mitigation for wetland
existence of historic resources can be required for all wetland losses that losses.
(f) Permittees may propose the use of 25. Transfer of Nationwide Permit proceed under the NWP with any
mitigation banks, in-lieu fee Verifications. If the permittee sells the special conditions imposed by the
arrangements or separate activity- property associated with a nationwide district or division engineer; or
specific compensatory mitigation. In permit verification, the permittee may (2) If 45 days have passed from the
those cases, the mitigation provisions transfer the nationwide permit district engineer’s receipt of the
will specify the party responsible for verification to the new owner by complete PCN and the prospective
accomplishing and/or complying with submitting a letter to the appropriate permittee has not received written
the mitigation plan. Corps district office to validate the notice from the District or Division
(g) Where certain functions and transfer. A copy of the nationwide Engineer. However, the permittee
services of waters of the United States permit verification must be attached to cannot begin the activity until any
are permanently adversely affected, the letter, and the letter must contain consultation required under Section 7 of
such as the conversion of a forested or the following statement and signature: the Endangered Species Act (see 33 CFR
scrub-shrub wetland to a herbaceous • ‘‘When the structures or work authorized 330.4(f) and general condition 17) and/
wetland in a permanently maintained by this nationwide permit are still in or Section 106 of the National Historic
utility line right-of-way, mitigation may existence at the time the property is Preservation (see 33 CFR 330.4(g) and
be required to reduce the adverse effects transferred, the terms and conditions of this general condition 18) is completed.
of the project to the minimal level. nationwide permit, including any special Also, work cannot begin under NWP 21
conditions, will continue to be binding on until the permittee has received written
21. Water Quality. Where States and the new owner(s) of the property. To validate approval from the Corps. If the District
authorized Tribes, or EPA where the transfer of this nationwide permit and the
applicable, have not previously certified or Division Engineer notifies the
associated liabilities associated with
compliance of an NWP with CWA compliance with its terms and conditions, permittee in writing that an individual
Section 401, individual 401 Water have the transferee sign and date below.’’ permit is required within 45 days of
Quality Certification must be obtained receipt of a complete PCN, the permittee
lllllllllllllllllllll
or waived (see 33 CFR 330.4(c)). The cannot begin the activity until an
(Transferee) individual permit has been obtained.
district engineer or State or Tribe may lllllllllllllllllllll Subsequently, the permittee’s right to
require additional water quality (Date)
management measures to ensure that the proceed under the NWP may be
authorized activity does not result in 26. Compliance Certification. Each modified, suspended, or revoked only in
more than minimal degradation of water permittee who received an NWP accordance with the procedure set forth
quality. verification from the Corps must submit in 33 CFR 330.5(d)(2).
a signed certification regarding the (b) Contents of Pre-Construction
22. Coastal Zone Management. In Notification: The PCN must be in
coastal states where an NWP has not completed work and any required
mitigation. The certification form must writing and include the following
previously received a state coastal zone information:
management consistency concurrence, be forwarded by the Corps with the
NWP verification letter and will (1) Name, address and telephone
an individual state coastal zone numbers of the prospective permittee;
management consistency concurrence include:
(a) A statement that the authorized (2) Location of the proposed project;
must be obtained or waived (see 33 CFR (3) A description of the proposed
work was done in accordance with the
330.4(d)). The district engineer or a project; the project’s purpose; direct and
NWP authorization, including any
State may require additional measures indirect adverse environmental effects
general or specific conditions;
to ensure that the authorized activity is (b) A statement that any required the project would cause; any other
consistent with state coastal zone mitigation was completed in accordance NWP(s), regional general permit(s), or
management requirements. with the permit conditions; and individual permit(s) used or intended to
23. Regional and Case-By-Case (c) The signature of the permittee be used to authorize any part of the
Conditions. The activity must comply certifying the completion of the work proposed project or any related activity.
with any regional conditions that may and mitigation. The description should be sufficiently
have been added by the Division 27. Pre-Construction Notification. detailed to allow the district engineer to
Engineer (see 33 CFR 330.4(e)) and with (a) Timing. Where required by the determine that the adverse effects of the
any case specific conditions added by terms of the NWP, the prospective project will be minimal and any
the Corps or by the state, Indian Tribe, permittee must notify the district necessary compensatory mitigation.
or U.S. EPA in its section 401 Water engineer by submitting a pre- Sketches should be provided when
Quality Certification, or by the state in construction notification (PCN) as early necessary to show that the activity
its Coastal Zone Management Act as possible. The district engineer must complies with the terms of the NWP.
consistency determination. determine if the PCN is complete within (Sketches usually clarify the project and
24. Use of Multiple Nationwide 30 days of the date of receipt and can when provided result in a quicker
Permits. The use of more than one NWP request additional information decision.);
for a single and complete project is necessary to make the PCN complete (4) The PCN must include a
prohibited, except when the acreage loss only once. However, if the prospective delineation of special aquatic sites and
of waters of the United States permittee does not provide all of the other waters of the United States on the
authorized by the NWPs does not requested information, then the district project site. Wetland delineations must
exceed the acreage limit of the NWP engineer will notify the prospective be prepared in accordance with the
with the highest specified acreage limit. permittee that the PCN is still current method required by the Corps.
For example, if a road crossing over incomplete and the PCN review process The permittee may ask the Corps to
tidal waters is constructed under NWP will not commence until all of the delineate the special aquatic sites and
14, with associated bank stabilization requested information has been received other waters of the United States, but
authorized by NWP 13, the maximum by the district engineer. The prospective there may be a delay if the Corps does
acreage loss of waters of the United permittee shall not begin the activity: the delineation, especially if the project
States for the total project cannot exceed (1) Until notified in writing by the site is large or contains many wetland
1⁄3-acre. district engineer that the activity may areas. Furthermore, the 45 day period
will not start until the delineation has engineer will fully consider agency district engineer must review the plan
been completed and submitted to the comments received within the specified within 45 days of receiving a complete
Corps, where appropriate; time frame, but will provide no PCN and determine whether the
(5) If the proposed activity will result response to the resource agency, except proposed mitigation would ensure no
in the loss of greater than 1/10 acre of as provided below. The district engineer more than minimal adverse effects on
wetlands and a PCN is required, the will indicate in the administrative the aquatic environment. If the net
prospective permittee must submit a record associated with each pre- adverse effects of the project on the
statement describing how the mitigation construction notification that the aquatic environment (after
requirement will be satisfied. resource agencies’ concerns were consideration of the compensatory
(6) For an activity that may adversely considered. For NWP 37, the emergency mitigation proposal) are determined by
affect Federally-listed endangered or watershed protection and rehabilitation the district engineer to be minimal, the
threatened species, the PCN must activity may proceed immediately and district engineer will provide a timely
include the name(s) of those endangered the district engineer will consider any written response to the applicant. The
or threatened species that may be comments received to decide whether response will state that the project can
affected by the proposed work or utilize the NWP 37 authorization should be proceed under the terms and conditions
the designated critical habitat that may modified, suspended, or revoked in of the NWP.
be affected by the proposed work; and accordance with the procedures at 33 If the district engineer determines that
(7) For an activity that may affect a CFR 330.5. the adverse effects of the proposed work
historic property listed in, or eligible for As required by Section 305(b)(4)(B) of are more than minimal, then the district
listing in, the National Register of the Magnuson-Stevens Fishery engineer will notify the applicant either:
Historic Places, the PCN must state Conservation and Management Act, the (1) That the project does not qualify for
which historic property may be affected district engineer will provide a response authorization under the NWP and
by the proposed work or include a to NMFS within 30 days of receipt of instruct the applicant on the procedures
vicinity map indicating the location of any Essential Fish Habitat conservation to seek authorization under an
the historic property. recommendations. individual permit; (2) that the project is
(c) Form of Pre-Construction Applicants are encouraged to provide authorized under the NWP subject to
Notification: The standard individual the Corps multiple copies of pre- the applicant’s submission of a
permit application form (Form ENG construction notifications to expedite mitigation proposal that would reduce
4345) may be used, but the completed agency coordination. the adverse effects on the aquatic
application form must clearly indicate (e) District Engineer’s Decision: In environment to the minimal level; or (3)
that it is a PCN and must include all of reviewing the PCN for the proposed that the project is authorized under the
the information required in paragraphs activity, the district engineer will NWP with specific modifications or
(b)(1) through (7) of this general determine whether the activity conditions. Where the district engineer
condition. A letter containing the authorized by the NWP will result in
determines that mitigation is required to
required information may also be used. more than minimal individual or
(d) Agency Coordination: The district ensure no more than minimal adverse
cumulative adverse environmental
engineer will consider any comments effects occur to the aquatic
effects or may be contrary to the public
from Federal and state agencies environment, the activity will be
interest. If the proposed activity will
concerning the proposed activity’s authorized within the 45-day PCN
result in a loss of greater than 1/10 acre
compliance with the terms and period. The authorization will include
of wetlands, the prospective permittee
conditions of the NWPs and the need for the necessary conceptual or specific
should submit a proposed mitigation
mitigation to reduce the project’s mitigation or a requirement that the
plan with the PCN. Applicants may also
adverse environmental effects to a applicant submit a mitigation proposal
propose compensatory mitigation for
minimal level. projects with smaller impacts. The that would reduce the adverse effects on
For activities requiring pre- district engineer will consider any the aquatic environment to the minimal
construction notification to the district proposed compensatory mitigation the level. When mitigation is required, no
engineer that result in the loss of greater applicant has included in the proposal work in waters of the United States may
than 1⁄2-acre of waters of the United in determining whether the net adverse occur until the district engineer has
States, the district engineer will environmental effects to the aquatic approved a specific mitigation plan.
immediately provide (e.g., via facsimile environment of the proposed work are D. Further Information
transmission, overnight mail, or other minimal. The compensatory mitigation 1. District Engineers have authority to
expeditious manner) a copy of the PCN proposal may be either conceptual or determine if an activity complies with
to the appropriate Federal or state detailed. If the district engineer the terms and conditions of an NWP.
offices (U.S. FWS, state natural resource determines that the activity complies 2. NWPs do not obviate the need to
or water quality agency, EPA, State with the terms and conditions of the obtain other federal, state, or local
Historic Preservation Officer (SHPO) or NWP and that the adverse effects on the permits, approvals, or authorizations
Tribal Historic Preservation Office aquatic environment are minimal, after required by law.
(THPO), and, if appropriate, the NMFS). considering mitigation, the district 3. NWPs do not grant any property
With the exception of NWP 37, these engineer will notify the permittee and rights or exclusive privileges.
agencies will then have 10 calendar include any conditions the district 4. NWPs do not authorize any injury
days from the date the material is engineer deems necessary. The district to the property or rights of others.
transmitted to telephone or fax the engineer must approve any 5. NWPs do not authorize interference
district engineer notice that they intend compensatory mitigation proposal with any existing or proposed Federal
to provide substantive, site-specific before the permittee commences work.
project.
comments. If so contacted by an agency, If the prospective permittee elects to
the district engineer will wait an submit a compensatory mitigation plan E. Definitions
additional 15 calendar days before with the PCN, the district engineer will Best management practices (BMPs):
making a decision on the pre- expeditiously review the proposed Policies, practices, procedures, or
construction notification. The district compensatory mitigation plan. The structures implemented to mitigate the
adverse environmental effects on permanently adversely affected by and logistics in light of overall project
surface water quality resulting from flooding, excavation, or drainage purposes.
development. BMPs are categorized as because of the regulated activity. Pre-construction notification: A
structural or non-structural. Permanent adverse effects include request submitted by the project
Compensatory mitigation: The permanent discharges of dredged or fill proponent to the Corps for confirmation
restoration, establishment, material that change an aquatic area to that a particular activity is authorized
enhancement, or preservation of aquatic dry land, increase the bottom elevation by nationwide permit. The request may
resources for the purpose of of a waterbody, or change the use of a be a permit application, letter, or similar
compensating for unavoidable adverse waterbody. The acreage of loss of waters document that includes information
impacts which remain after all of the United States is a threshold about the proposed work and its
appropriate and practicable avoidance measurement of the impact to existing anticipated environmental effects. Pre-
and minimization has been achieved. waters for determining whether a construction notification may be
Currently serviceable: Useable as is or project may qualify for an NWP; it is not required by the terms and conditions of
with some maintenance, but not so a net threshold that is calculated after a nationwide permit, or by regional
degraded as to essentially require considering compensatory mitigation conditions. A pre-construction
reconstruction. that may be used to offset losses of notification may be voluntarily
Enhancement: The manipulation of aquatic functions and services. The loss submitted in cases where pre-
the physical, chemical, or biological of stream bed includes the linear feet of construction notification is not required
characteristics of an aquatic resource to stream bed that is filled or excavated. and the project proponent wants
heighten, intensify, or improve a Waters of the United States temporarily confirmation that the activity is
specific aquatic resource function(s). filled, flooded, excavated, or drained, authorized by nationwide permit.
Enhancement results in the gain of but restored to preconstruction contours Preservation: The removal of a threat
selected aquatic resource function(s), and elevations after construction, are to, or preventing the decline of, aquatic
but may also lead to a decline in other not included in the measurement of loss resources by an action in or near those
aquatic resource function(s). of waters of the United States. Impacts aquatic resources. This term includes
Enhancement does not result in a gain resulting from activities eligible for activities commonly associated with the
in aquatic resource area. exemptions under Section 404(f) of the protection and maintenance of aquatic
Ephemeral stream: An ephemeral Clean Water Act are not considered resources through the implementation
stream has flowing water only during, when calculating the loss of waters of of appropriate legal and physical
and for a short duration after, the United States. mechanisms. Preservation does not
precipitation events in a typical year. Non-tidal wetland: A non-tidal result in a gain of aquatic resource area
Ephemeral stream beds are located wetland is a wetland (i.e., a water of the or functions.
above the water table year-round. United States) that is not subject to the Re-establishment: The manipulation
Groundwater is not a source of water for ebb and flow of tidal waters. The of the physical, chemical, or biological
the stream. Runoff from rainfall is the definition of a wetland can be found at characteristics of a site with the goal of
primary source of water for stream flow. 33 CFR 328.3(b). Non-tidal wetlands returning natural/historic functions to a
Establishment (creation): The contiguous to tidal waters are located former aquatic resource. Re-
manipulation of the physical, chemical, landward of the high tide line (i.e., establishment results in rebuilding a
or biological characteristics present to spring high tide line). former aquatic resource and results in a
develop an aquatic resource that did not Open water: For purposes of the gain in aquatic resource area.
previously exist at an upland or NWPs, an open water is any area that in Rehabilitation: The manipulation of
deepwater site. Establishment results in a year with normal patterns of the physical, chemical, or biological
a gain in aquatic resource area. precipitation has water flowing or characteristics of a site with the goal of
Independent utility: A test to standing above ground to the extent that repairing natural/historic functions to a
determine what constitutes a single and an ordinary high water mark (OHWM) degraded aquatic resource.
complete project in the Corps regulatory can be determined. An OHWM is a line Rehabilitation results in a gain in
program. A project is considered to have on the shore established by the aquatic resource function, but does not
independent utility if it would be fluctuations of water and indicated by result in a gain in aquatic resource area.
constructed absent the construction of physical characteristics or other Restoration: The manipulation of the
other projects in the project area. appropriate means that consider the physical, chemical, or biological
Portions of a multi-phase project that characteristics of the surrounding areas characteristics of a site with the goal of
depend upon other phases of the project (see 33 CFR 328.3(e)). Aquatic returning natural/historic functions to a
do not have independent utility. Phases vegetation within the area of standing or former or degraded aquatic resource. For
of a project that would be constructed flowing water is either non-emergent, the purpose of tracking net gains in
even if the other phases were not built sparse, or absent. Vegetated shallows are aquatic resource area, restoration is
can be considered as separate single and considered to be open waters. Examples divided into two categories: re-
complete projects with independent of ‘‘open waters’’ include rivers, establishment and rehabilitation.
utility. streams, lakes, and ponds. Riffle and pool complex: Riffle and
Intermittent stream: An intermittent Perennial stream: A perennial stream pool complexes are special aquatic sites
stream has flowing water during certain has flowing water year-round during a under the 404(b)(1) Guidelines. Riffle
times of the year, when groundwater typical year. The water table is located and pool complexes sometimes
provides water for stream flow. During above the stream bed for most of the characterize steep gradient sections of
dry periods, intermittent streams may year. Groundwater is the primary source streams. Such stream sections are
not have flowing water. Runoff from of water for stream flow. Runoff from recognizable by their hydraulic
rainfall is a supplemental source of rainfall is a supplemental source of characteristics. The rapid movement of
water for stream flow. water for stream flow. water over a course substrate in riffles
Loss of waters of the United States: Practicable: Available and capable of results in a rough flow, a turbulent
Waters of the United States that include being done after taking into surface, and high dissolved oxygen
the filled area and other waters that are consideration cost, existing technology, levels in the water. Pools are deeper
areas associated with riffles. A slower Stormwater management facilities: Tidal waters end where the rise and fall
stream velocity, a streaming flow, a Stormwater management facilities are of the water surface can no longer be
smooth surface, and a finer substrate those facilities, including but not practically measured in a predictable
characterize pools. limited to, stormwater retention and rhythm due to masking by other waters,
Riparian areas: Riparian areas are detention ponds and best management wind, or other effects. Tidal wetlands
lands adjacent to a waterbody. Riparian practices, which retain water for a are located channelward of the high tide
areas are transitional between terrestrial period of time to control runoff and/or line (i.e., spring high tide line) and are
and aquatic ecosystems, through which improve the quality (i.e., by reducing inundated by tidal waters two times per
surface and subsurface hydrology the concentration of nutrients, lunar month, during spring high tides.
connects waterbodies with their sediments, hazardous substances and
adjacent uplands. Riparian areas are Vegetated shallows: Vegetated
other pollutants) of stormwater runoff.
adjacent to streams, lakes, and Stream bed: The substrate of the shallows are special aquatic sites under
estuarine-marine shorelines and provide stream channel between the ordinary the 404(b)(1) Guidelines. They are areas
a variety of ecological functions and high water marks. The substrate may be that are permanently inundated and
services and help improve or maintain bedrock or inorganic particles that range under normal circumstances have
local water quality. (See general in size from clay to boulders. Wetlands rooted aquatic vegetation, such as
condition 20.) contiguous to the stream bed, but seagrasses in marine and estuarine
Single and complete project: The term outside of the ordinary high water systems and a variety of vascular rooted
‘‘single and complete project’’ is defined marks, are not considered part of the plants in freshwater systems.
at 33 CFR 330.2(i) as the total project stream bed. Waterbody: For purposes of the
proposed or accomplished by one Stream channelization: The NWPs, a waterbody is a jurisdictional
owner/developer or partnership or other manipulation of a stream’s course, water of the United States that, during
association of owners/developers (see condition, capacity, or location that a year with normal patterns of
definition of independent utility). For causes more than minimal interruption precipitation, has water flowing or
linear projects, the ‘‘single and complete of normal stream processes. A standing above ground to the extent that
project’’ (i.e., a single and complete channelized stream remains a water of an ordinary high water mark (OHWM)
crossing) will apply to each crossing of the United States. or other indicators of jurisdiction can be
a separate water of the United States Structure: An object that is arranged determined, as well as any wetland area
(i.e., a single waterbody) at that location. in a definite pattern of organization. (see 33 CFR 328.3(b)). An OHWM is a
An exception is for linear projects Examples of structures include, without line on the shore established by the
crossing a single waterbody several limitation, any pier, boat dock, boat fluctuations of water and indicated by
times at separate and distant locations: ramp, wharf, dolphin, weir, boom, physical characteristics, or by other
each crossing is considered a single and breakwater, bulkhead, revetment, appropriate means that consider the
complete project. However, individual riprap, jetty, artificial island, artificial characteristics of the surrounding areas
channels in a braided stream or river, or reef, permanent mooring structure, (see 33 CFR 328.3(e)). If a jurisdictional
individual arms of a large, irregularly power transmission line, permanently wetland is adjacent—meaning
shaped wetland or lake, etc., are not moored floating vessel, piling, aid to bordering, contiguous, or neighboring—
separate waterbodies, and crossings of navigation, or any other obstacle or to a jurisdictional waterbody displaying
such features cannot be considered obstruction. an OHWM or other indicators of
separately. Tidal wetland: A tidal wetland is a jurisdiction, that waterbody and its
Stormwater management: Stormwater wetland (i.e., water of the United States) adjacent wetlands are considered
management is the mechanism for that is inundated by tidal waters. The together as a single aquatic unit (see 33
controlling stormwater runoff for the definitions of a wetland and tidal waters CFR 328.4(c)(2)). Examples of
purposes of reducing downstream can be found at 33 CFR 328.3(b) and 33 ‘‘waterbodies’’ include streams, rivers,
erosion, water quality degradation, and CFR 328.3(f), respectively. Tidal waters lakes, ponds, and wetlands.
flooding and mitigating the adverse rise and fall in a predictable and
effects of changes in land use on the measurable rhythm or cycle due to the [FR Doc. 06–7986 Filed 9–25–06; 8:45 am]
aquatic environment. gravitational pulls of the moon and sun. BILLING CODE 3710–92–P

Notice: Nationwide Permits Reissuance and Modification

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Notice: Nationwide Permits Reissuance and Modification

Transféré par

Droits d'auteur :

Formats disponibles

Tuesday,

September 26, 2006

Proposal To Reissue and Modify

Essential Fish Habitat Identification study with associated modifications, suspensions, or

expires. on Environmental Quality’s April 2006 maintenance (preservation)’’ in

comment. Current activities approved for

Note: The permittee should notify the

Vous aimerez peut-être aussi