[Federal Register Volume 63, Number 126 (Wednesday, July 1, 1998)]
[Notices]
[Pages 36040-36078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17399]
[[Page 36039]]
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Part II
Department of Defense
_______________________________________________________________________
Department of the Army, Corps of Engineers
_______________________________________________________________________
Proposal To Issue and Modify Nationwide Permits; Notice
Federal Register / Vol. 63, No. 126 / Wednesday, July 1, 1998 /
Notices
[[Page 36040]]
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
Proposal To Issue and Modify Nationwide Permits
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Notice of intent and request for comments.
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SUMMARY: To improve protection of the environment the Army Corps of
Engineers is proposing changes to its Nationwide General Permit
Program. On December 13, 1996, the Corps announced that it would phase
out nationwide permit 26 (NWP 26) which covered certain activities in
isolated waters and waters above the ``headwaters'' point on streams.
Specifically, the Corps is proposing to issue 6 new nationwide permits
(NWPs) and modify 6 existing NWPs to become effective when NWP 26
expires. In addition, the Corps is proposing to add one NWP condition
and modify 6 existing NWP conditions, which will apply to all existing
NWPs as well as the new and modified NWPs proposed in this notice.
These NWPs are activity-specific, and most are restricted to discharges
of dredged or fill material into non-tidal waters of the United States.
In addition to improving protection of our aquatic resources, a
principal objective is to ensure that those activities with truly
minimal impacts are authorized in an efficient manner by a general
permit. In this regard, we believe that these new and modified NWPs
will authorize those activities with minimal impacts that are currently
authorized by NWP 26. They will also authorize like activities with
minimal impacts that occur below the headwaters. These NWPs will allow
the Corps to improve overall environmental protection by allowing the
Corps to prioritize its work in non-tidal waters based on the quality
of impacted aquatic systems and the specific impacts of a proposed
project. Although NWP 26 was originally scheduled to expire on December
13, 1998, the Corps is proposing to change the expiration date to March
28, 1999, to ensure that the Corps has adequate time to effectively
involve the other agencies and the public in a new regional
conditioning process. When the Corps first established the December 13,
1998, expiration date for NWP 26, we did not contemplate the extensive
process needed to develop sound regional conditions. This extension is
necessary since a lapse between the expiration of NWP 26 and the
effective date of the replacement NWPs is unacceptable and unnecessary.
The Corps is also proposing to modify its ``single family home''
NWP (NWP 29) to change the acreage limit to \1/4\ acre, as discussed at
the end of the preamble to this notice. In the interim, the Corps is
suspending NWP 29 for single family housing activities that result in
the loss of greater than \1/4\ acre of non-tidal waters of the United
States, including non-tidal wetlands. The Corps is also making
available a revised environmental assessment for NWP 29.
The public is invited to provide comments on these proposals and is
being given the opportunity to request a public hearing on these
activity-specific NWPs.
DATES: Comments on the proposed new and modified NWPs and the proposed
modification of NWP 29 must be received by August 31, 1998. Comments on
the proposal to extend the expiration date of NWP 26 to March 28, 1999,
must be received by July 31, 1998.
ADDRESSES: HQUSACE, CECW-OR, Washington, D.C. 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson or Mr. Sam Collinson,
CECW-OR, at (202) 761-0199 or http://www.usace.army.mil/inet/functions/
cw/cecwo/reg/.
SUPPLEMENTARY INFORMATION:
Background
The protection and restoration of the aquatic environment is an
integral part of the Army Corps of Engineers mission. In its recent
Strategic Plan, the Corps made it clear that this part of its mission
was equal to its more traditional missions of navigation and flood
damage reduction. Over the past 10 years the Corps has made remarkable
progress in improving environmental protection through its Regulatory
Program. An example is the substantial improvements in the Nationwide
Permit program. Through each of the last two five-year reauthorization
cycles, the Corps has improved the NWP program. This proposal today
takes an additional important step as the Corps phases out NWP 26.
While some may not appreciate fully the import of today's proposal
on improving environmental protection, one must only discuss this issue
with those who have implemented the NWPs for the past 20 years to gain
an accurate account of the substantial progress today's action
reflects. This proposal is a reflection of the Corps unequivocal
commitment to its environmental mission and to wetlands protection.
The Corps is also committed to reducing regulatory burdens where
possible. Consistent with the President's 1993 Wetlands Plan, the
Corps, along with other Federal agencies, has made the Regulatory
Program more fair, more flexible, and more effective. This NWP proposal
also reflects this commitment.
The Corps of Engineers is proposing new and modified NWPs that will
authorize those activities with minimal adverse effects on the aquatic
environment that are currently authorized by NWP 26. This will ensure
the NWP program is based on types of activities and continues to
authorize work that has no more than minimal adverse effects on the
aquatic environment. The Corps believes that the overall protection of
the aquatic environment will be increased by these new and modified
NWPs when compared to the existing NWP program. The proposed NWPs will
help the Corps achieve its goal of managing its workload based on
impacts to the aquatic environment as a whole, not on impacts to any
particular geographic type of waters, such as isolated waters or
headwater streams. The proposed new and modified NWPs, along with the
existing NWPs, will allow the Corps to manage its workload by
efficiently authorizing activities with minimal adverse effects and
focusing its limited resources on aquatic areas of higher value. Higher
value waters, including wetlands, will receive additional protection
through increased regional conditioning of NWPs, case-specific special
conditions, and case-specific discretionary authority to require a
standard individual permit where necessary. These measures will ensure
that impacts to these waters authorized by NWPs are no more than
minimal. The Corps has established permit thresholds that will allow
authorization of most projects that result in no more than minimal
adverse effects on the aquatic environment. At the same time, the Corps
has established PCN limits to ensure that any project that may have
more than minimal adverse effects on the aquatic environment will be
reviewed. Moreover, since a minimal adverse effect is still an effect
on the aquatic environment, we will also require compensatory
mitigation, when appropriate, to ensure that the goal of no net loss is
achieved in the NWP program and that the cumulative adverse effects of
these activities on the aquatic environment are minimal. Moreover, the
Corps believes that the proposed NWPs, along with regional conditioning
and the ability to place special conditions on NWP authorizations on a
case-by-case
[[Page 36041]]
basis, will authorize no more than minimal individual and cumulative
adverse effects to waters of the United States. Regional conditions
will be required by each district to further restrict the use of the
NWPs in higher value aquatic systems.
In the June 17, 1996, issue of the Federal Register, the Corps
proposed to reissue NWP 26 and requested comments on several options
for modification of this NWP. In response to this notice, the Corps
received more than 500 comments concerning NWP 26. Numerous commenters
opposed reissuance of NWP 26. Some commenters acknowledged the
necessity of NWP 26, but believed that the NWP must be modified to
address potential cumulative adverse effects. Many commenters stated
that NWP 26 has worked well and that the loss of NWP 26 would result in
increased regulatory burdens on the public, less regulatory certainty,
unacceptable workload increases for the Corps, increased processing
times, project delays, and an overall lessening of the regulatory
program's ability to protect waters of the United States. As a result
of the Corps review, the Corps determined that NWP 26 should be
replaced with activity-specific NWPs, but in the interim a
substantially modified NWP 26 was reissued on December 13, 1996, for a
period of two years. This phased approach was determined to be
necessary to minimize disruption and confusion for the regulated public
and improve environmental protection. For a complete discussion of the
issues concerning the reissuance and modification of NWP 26, please
refer to the December 13, 1996, issue of the Federal Register (61 FR
65874-65922).
The coordination process to develop the new and modified NWPs has
taken longer than the Corps expected. Moreover, the Corps has
established a very time intensive process to effectively engage other
agencies and the public in developing regional conditions.
Due to the additional amount of time required to develop the
proposed new and modified NWPs and regional conditions, the Corps is
proposing to change the expiration date of NWP 26 to March 28, 1999.
Extending the expiration date of NWP 26 will ensure fairness to the
regulated public by continuing to provide an NWP for activities in
headwaters and isolated waters that have minimal adverse environmental
effects until the proposed activity-specific NWPs that will replace NWP
26 become effective. If NWP 26 were to expire on the originally
scheduled date of December 13, 1998, then most project proponents would
have to apply for authorization through the individual permit process,
although some activities may be authorized by other NWPs or regional
general permits. For many activities with minimal adverse environmental
effects, this would result in unnecessary burdens on the regulated
public without added environmental benefits.
Section 404(e) of the Clean Water Act, which provides the statutory
authority for the issuance of general permits, states that general
permits (including nationwide permits) can be issued for no more than
five years. Therefore, NWP 26 can be in effect for a 5 year period.
However, the Corps decided that NWP 26 should expire when replacement
NWPs become effective. We established a schedule for developing
replacement NWPs by December 13, 1998, and announced that NWP 26 would
expire then. The revised schedule to develop the new and modified NWPs
now indicates that they will become effective on March 28, 1999. Based
on this schedule, we are proposing to extend the expiration date of NWP
26 to March 28, 1999. The public is invited to provide comments on the
proposal to extend the expiration date of NWP 26 within 30 days of the
date of this notice. After the 30 day comment period, the Corps will
make a decision on the proposal to extend the expiration date of NWP
26, and publish the decision in the Federal Register.
The replacement of NWP 26 with activity-specific NWPs will help
implement the President's Wetlands Plan, which was issued by the White
House Office on Environmental Policy on August 24, 1993. A major goal
of this plan is that Federal wetlands protection programs be fair,
flexible, and effective. To achieve this goal, the Corps regulatory
program must continue to provide effective protection of wetlands and
other aquatic resources and avoid unnecessary impacts to private
property, the regulated public, and the environment. These proposed
NWPs will more clearly address individual and cumulative impacts to the
aquatic environment, ensure that those impacts are minimal, address
specific applicant group needs, and provide more predictability and
consistency to the regulated public. Throughout the process of
developing the new and modified NWPs, the Corps recognized the concerns
of natural resource agencies and environmental groups for the potential
level of adverse effects on the aquatic environment resulting from
these NWPs and the regulated public's need for the certainty and
flexibility in the NWP program.
The activity-specific NWPs proposed in this notice were developed
based on information from several sources: (1) comments submitted in
response to the December 13, 1996, Federal Register notice to issue,
reissue, and modify the NWPs; (2) Corps internal recommendations; (3)
data concerning the types of activities currently authorized by NWP 26;
(4) discussions with other Federal agencies; and (5) discussions with
both developmental and environmental stakeholders.
Since NWP 26 was modified and reissued, the Corps collected
additional data on the types of activities authorized by NWP 26 to
develop these new NWPs. From May 1, 1997, through December 31, 1997,
83% of the total activities authorized by NWP 26 fell into 10
categories. Residential development comprised approximately 24% of the
activities authorized by NWP 26. Transportation activities accounted
for 19% of the NWP 26 authorizations. Six percent to 8% of NWP 26
authorizations were for each the following activities: agricultural
activities, retail developments, industrial developments, stormwater
facilities, and impoundments. Institutional facilities, mining
activities, and channel modification activities each comprised 2% to 5%
of the NWP 26 authorizations during this time period.
In response to the December 13, 1996, Federal Register notice,
several commenters recommended NWPs for activities that were
specifically authorized by NWP 26. We also received comments that
recommended modifications to existing NWPs to authorize additional
activities. We considered all recommendations received and, where
appropriate, developed a proposed new NWP or proposed modification of
an existing NWP to authorize that activity. Some proposals involved
activities that did not require a permit or were exempt from Section
404 or Section 10 permit requirements. Where we believed that it was
not appropriate to develop an NWP for a particular recommended
activity, our reasons are provided elsewhere in this notice.
In contrast to NWP 26, none of the proposed new NWPs and the
proposed modifications of existing NWPs are restricted solely to
activities in headwaters and isolated wetlands. However, most are
limited to work in non-tidal waters of the United States, and do not
authorize work in tidal waters (i.e., waters subject to the ebb and
flow of the tide) or in non-tidal wetlands contiguous (i.e., connected
by
[[Page 36042]]
surface waters) to tidal waters. Some of the proposed new and modified
NWPs are applicable only in non-Section 10 waters and do not authorize
work in tidal waters or in non-tidal navigable waters of the United
States. The removal of the headwaters restriction will help improve
consistency and reduce confusion by eliminating the need to determine
where the median flow of a waterbody, on an annual basis, is less than
5 cubic feet per second. In this proposal, we have clarified that for
all NWPs, the acreage of loss of waters of the United States, which is
the threshold measurement of the gross impacts to existing waters for
determining whether a project might qualify for an NWP, includes the
filled area plus any waters of the United States that are adversely
affected by flooding, excavation, or drainage as a result of the
project. Furthermore, in most cases compensatory mitigation will be
required for these losses.
Many of the proposed new and modified NWPs have preconstruction
notification (PCN) requirements, which allow the Corps to review
proposed activities on a case-by-case basis to: (1) place special
conditions on specific projects to ensure that the authorized impacts
will have minimal individual and cumulative adverse effects on the
aquatic system; or (2) assert discretionary authority to require a
standard individual permit. These provisions will ensure that the
impacts authorized by the NWPs will be minimal. The PCN requirements
differ for each NWP. The PCN threshold is based on a level of effects
on the existing aquatic ecosystem that requires review by the District
Engineer to ensure that those effects are minimal. Each district will
identify any areas of high value waters that require lower PCN levels
to ensure minimal adverse effects on the aquatic environment. With the
national and district-added PCN thresholds, any activity below these
limits will have minimal adverse effects on the aquatic environment.
Many of the proposed NWPs have PCN requirements for activities that
result in the loss, by filling or excavation, of greater than 500
linear feet of stream bed. The term ``stream bed'' is defined, for the
purpose of the proposed new NWPs, as a water of the United States with
flowing water (i.e., perennial and intermittent streams). Ephemeral
stream beds are not subject to this 500 linear foot PCN requirement.
However, Corps districts may regionally condition certain NWPs to
require notification for activities that adversely affect ephemeral
streams. District engineers are responsible for determining if a
particular stream bed is perennial, intermittent, or ephemeral, based
on the definitions provided below. District engineers can assert
discretionary authority and require an individual permit for those
activities that they determine will have more than minimal individual
or cumulative adverse effects on the aquatic environment. As with all
NWPs, Corps districts will continue to require that applicants avoid
and minimize impacts on-site.
Section 404(e) of the Clean Water Act requires that only activities
with minimal adverse environmental effects, both individually and
cumulatively, can be authorized by general permits. Activities with
more than minimal adverse impacts are subject to the individual permit
process and the associated alternatives analysis, individual public
notice procedures, and other aspects of individual review that help
ensure that potential adverse effects are fully avoided and minimized
to the maximum extent practicable before an activity is authorized. On
a national basis, the Corps prescribes terms and conditions for
nationwide permits to ensure that the NWPs only authorize activities
that have minimal individual and cumulative adverse effects on the
aquatic environment. Furthermore, in certain situations to ensure that
activities authorized by NWPs have minimal adverse effects, the Corps:
(1) requires a specific review (i.e., a preconstruction notification)
so that activity-specific conditions can be imposed where necessary;
(2) adds regional conditions on a regional or geographic basis, to
ensure that activities authorized by the NWPs have minimal adverse
effects; or (3) exercises discretionary authority to require individual
permits for those activities that would have more than minimal adverse
effects on the aquatic environment.
District engineers will normally require compensatory mitigation to
offset adverse environmental effects to the aquatic environment that
result from activities authorized by these NWPs, thus ensuring no more
than minimal cumulative adverse environmental effects and supporting
the goal of no net loss of aquatic resource functions and values.
Compensatory mitigation can be accomplished through individual
mitigation projects, through mitigation banks and through in lieu fee
programs. A focus of all mitigation for NWP impacts in and around
flowing and other open waters will be to normally require vegetated
buffers, including upland areas adjacent to open waters. These buffer
areas are vital for protecting and enhancing water quality.
Compensatory mitigation is necessary to offset losses of functions
and values of aquatic systems caused by permitted activities. In 1997,
the Corps required 28,631 acres of compensatory mitigation for 15,989
acres of impacts authorized by standard permits (which includes
individual permits and letters of permission). During this same time
period, the Corps required 24,819 acres of compensatory mitigation for
21,409 acres of impacts authorized by general permits, including
nationwide permits and regional general permits. Restoration,
enhancement, and creation comprise the bulk of compensatory mitigation
efforts. Less than 5% of this compensatory mitigation is accomplished
through preservation of aquatic resources. In some Corps districts,
such as Savannah District, preservation of aquatic habitats is used to
augment restoration, enhancement, and creation efforts. In the Savannah
District, permittees are typically required to provide restoration,
enhancement, and creation at a 1:1 ratio of impacts to mitigation, and
provide additional preservation of aquatic resources, to ensure that
there is no net loss of functions and values as a result of authorized
activities.
Permittees who received an NWP 26 authorization before NWP 26
expires will have up to 12 months to complete the authorized activity,
provided they have commenced construction, or are under contract to
commence construction, prior to the date NWP 26 expires (see 33 CFR
330.6(b)). This provision applies to all NWP authorizations unless
discretionary authority has been exercised on a case-by-case basis to
modify, suspend, or revoke the authorization in accordance with 33 CFR
330.4(e) and 33 CFR 330.5(c) or (d).
The existing NWPs, with the exception of NWP 26, will remain in
effect until they expire on February 11, 2002, unless otherwise
modified, reissued, or revoked. Some of the proposed NWPs can be used
with existing NWPs to authorize projects with minimal individual or
cumulative adverse effects on the aquatic environment. Any prohibitions
or limitations regarding stacking of the proposed new or modified NWPs
with existing NWPs or each other will be addressed in the proposed
NWPs.
The Corps believes that substantial additional protection of the
overall aquatic environment will result from modification of two NWP
conditions. We are proposing to modify General Condition 9, previously
entitled ``Water
[[Page 36043]]
Quality Certification'', to require that post-project conditions do not
result in more than minimal degradation of downstream water quality.
For certain NWPs, this General Condition will require the
implementation of a water quality management plan to protect and
enhance aquatic resources. The water quality management plan may
consist of storm water management techniques and/or the establishment
of vegetated buffer zones. In many cases, the Corps will be able to
rely on State or local water quality plans. We are also proposing to
modify former Section 404 Only Condition 6 by changing its title from
``Obstruction of High Flows'' to ``Management of Water Flows'' and
modifying it to require that neither upstream nor downstream areas are
more than minimally flooded or dewatered after the project is
completed. This requirement will help ensure that post-construction
effects on the aquatic environment and populated areas are further
minimized. We are also modifying other conditions and consolidating the
general and Section 404 only NWP conditions to a single list, as
discussed below.
Ensuring the protection of threatened and endangered species is a
high priority of the Department of the Army Regulatory Program,
including the general permit program. Because of programmatic
safeguards and individual project review, the Corps continues to
believe the NWP program results in no effect on endangered species.
Notwithstanding this position, we have requested formal programmatic
consultation with the U.S. Fish and Wildlife Service (FWS) and National
Marine Fisheries Service (NMFS) to ensure that the NWP program,
including the proposed new and modified NWPs, has a formal process to
develop any necessary additional procedures at the district level. This
will ensure that the program will not jeopardize the continued
existence of any Federally listed endangered species. The formal
consultation will be initiated as soon as possible and completed by
December 13, 1998.
In addition to the standard NWP condition for endangered species,
the Corps has required regional conditions and activity-specific
conditions to address specific endangered species. To further ensure
compliance with the requirements of ESA, Corps districts have
developed, and will continue to develop, local operating procedures
(referred to as Standard Local Operating Procedures for Endangered
Species, or SLOPES) to ensure that districts will continue to reach a
project specific ``may affect'' determination when necessary, and thus
consult with FWS and NMFS, where appropriate. Furthermore, programmatic
formal consultation has been initiated on NWP 29. We expect this
consultation will be completed this summer. Corps districts will
develop additional regional conditions and SLOPES this summer for the
new and modified NWPs, to ensure that we fully comply with the
Endangered Species Act.
Overall, the Corps believes that the proposed changes to the NWP
program will substantially enhance protection of the aquatic
environment while allowing activities with minimal individual and
cumulative adverse effects on the aquatic environment to proceed with a
minimum of delay. For example, where we have proposed higher acreage
limits for mitigated losses, such as NWP B for master planned
development activities, the applicant must fully protect all remaining
waters in the project area and offset all losses of aquatic functions
and values within the community. In this way, the overall aquatic
environment will be maintained, and in many cases enhanced, by planning
for treatment of stormwater, establishing and/or maintaining buffers
around all aquatic areas, and placing deed restrictions on all
unimpacted aquatic environments and associated buffer areas. In
addition, some of these NWPs will authorize all secondary activities
associated with the primary activity, such as infrastructure and
recreational amenities, with the impacts for a residential development.
This will discourage piecemealing by encouraging applicants to present
the total project.
General Issues
In addition to seeking comments on the proposed new and modified
NWPs, the Corps is soliciting comments on the following general issues
related to the proposed NWPs: the scope of the new NWPs, acreage
limitations and PCN thresholds on the proposed NWPs, assessing
cumulative impacts on a watershed basis, and regional conditioning of
the NWPs. The Corps is also seeking comments on other issues related to
the NWPs, such as maintenance of landfill surfaces, maintenance and
filling of ditches adjacent to roads and railways, maintenance of water
treatment facilities, the use of mitigation banks in the NWP program,
and expansion of NWP 31, which are discussed below in the section
entitled ``Other Suggested NWPs''.
NEPA Compliance
The Corps recognizes that there has been, and continues to be,
substantial interest among the public regarding the potential
environmental effects associated with the implementation of the
Nationwide Permit program. With the last reissuance of the NWPs in
December 1996, we reemphasized our commitment to improve data
collection and monitoring efforts associated with the NWP program, and
NWP 26 in particular. In many instances, these efforts have already
provided critical information on the use of the NWPs, overall acreage
impacts, affected resource types, the geographic location of the
activities, and the type of mitigation provided. This information is
critical in our efforts to make well-informed permitting and policy
decisions regarding the continued role of the NWP program and to ensure
that the program continues to authorize only those activities with
minimal individual and cumulative effects.
We also recognize that this current process to develop replacement
permits for NWP 26 provides an important opportunity to further expand
the current tools available for evaluating and monitoring the
environmental effects associated with this program. We are committed to
ensuring and demonstrating that the NWP program as a whole, including
the new NWPs proposed today, authorizes only those activities with
minimal individual and cumulative environmental effects. Consistent
with this commitment, the Corps will prepare a programmatic
environmental impact statement (PEIS) for the entire NWP program. While
a PEIS is not required for the reasons noted below, the PEIS will
provide the Corps with a comprehensive mechanism to review the effects
of the NWP program on the environment, with full participation of other
Federal agencies, States, Tribes, and the public. The Corps will
initiate the PEIS by mid-1999 and complete it by December 2000. The
Corps plans to complete the PEIS prior to the next scheduled reissuance
of the NWPs in December 2001.
The National Environmental Policy Act (NEPA) requires Federal
agencies to prepare an Environmental Impact Statement (EIS) for major
Federal actions that have a significant impact on the quality of the
human environment. Notwithstanding our commitment to complete a PEIS,
we have determined that the NWP program does not constitute a major
Federal action significantly affecting the human environment and
therefore the preparation of an EIS is not required by NEPA. The basis
for this determination is that the NWP program authorizes only those
activities that have minimal adverse environmental effects on the
[[Page 36044]]
aquatic environment, both individually and cumulatively, which is a
much lower threshold than the threshold for requiring an EIS. We have
prepared a Finding of No Significant Impact (FONSI) for the NWP
program. Copies of the FONSI are available at the office of the Chief
of Engineers, at each District office, and on the Corps home page at
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.
Similar to our determination for the overall NWP program, we have
made a preliminary determination that the proposed new and modified
NWPs do not constitute a major Federal action significantly affecting
the quality of the human environment, because the NWPs authorize only
those activities that have minimal adverse effects on the aquatic
environment, both individually and cumulatively. In compliance with
NEPA, preliminary environmental documentation has been prepared for
each proposed NWP and each proposed modification of an existing NWP.
This documentation includes a preliminary environmental assessment
(EA), a preliminary FONSI, and, where relevant, a preliminary Section
404(b)(1) Guidelines compliance review for each proposed new and
modified NWP. Copies of these documents are available for inspection at
the office of the Chief of Engineers, at each Corps district office,
and on the Corps Home Page at http://www.usace.army.mil/inet/functions/
cw/cecwo/reg/. Based on these documents the Corps has provisionally
determined that the proposed new and modified NWPs comply with the
requirements for issuance under general permit authority.
Scope of the New NWPs
The applicable waters of the United States for the proposed and
existing NWPs can be categorized in five ways: (1) all waters of the
United States; (2) non-tidal waters; (3) non-tidal waters, excluding
non-tidal wetlands contiguous to tidal waters; (4) non-Section 10
waters; and (5) non-Section 10 waters, excluding wetlands contiguous to
Section 10 waters. The term ``all waters of the United States''
includes both Section 10 and Section 404 waters. ``Non-tidal waters''
are waters of the United States that are not subject to the ebb and
flow of the tide (i.e., are located landward of the normal spring high
tides), and may include non-tidal wetlands contiguous to tidal waters.
``Non-tidal waters, excluding non-tidal wetlands contiguous to tidal
waters'' are limited to non-tidal waters and wetlands that are not
connected by surface waters to tidal waters or are not part of a linear
aquatic system with a defined channel to the otherwise contiguous
wetland (see the proposed definitions of ``contiguous wetland'' and
``noncontiguous wetland'', below). Where non-tidal waters and wetlands
are contiguous to tidal waters, there are no uplands or other non-
jurisdictional areas separating those non-tidal waters from the tidal
waters. ``Non-Section 10 waters'' are limited to waters of the United
States, including wetlands, located above the ordinary high water mark
of Section 10 waters. Wetlands located below the ordinary high water
mark in Section 10 waters are Section 10 waters. ``Non-Section 10
waters, excluding wetlands contiguous to Section 10 waters'' are
limited to waters and wetlands that are not connected by surface waters
to Section 10 waters; there may be uplands or other non-jurisdictional
areas separating those waters. Wetlands contiguous to Section 10 waters
may be either tidal or non-tidal.
Many of the proposed new NWPs (e.g., NWPs A, B, D, and E) are
applicable only to discharges of dredged or fill material into non-
tidal waters of the United States, excluding wetlands that are
contiguous to tidal waters. A definition of ``contiguous wetland'' has
been proposed in the definition section of this notice. Proposed NWPs C
and F are applicable only to non-Section 10 waters of the United
States. For the proposed modification to NWP 12, the construction of
substations and access roads is authorized only in non-Section 10
waters, but the construction of utility lines and foundations for
overhead utility lines may be authorized in Section 10 waters. The
proposed modifications to NWP 27 allow wetland and riparian restoration
in non-tidal waters of the United States, while limiting stream
enhancement projects to non-Section 10 waters. The proposed
modification to NWP 7 may authorize work in navigable waters of the
United States (i.e., Section 10 waters). Crushed and broken stone and
hard rock/mineral mining activities authorized by proposed NWP E can
occur only in non-tidal waters of the United States that are not
contiguous to tidal waters. The activities authorized by the proposed
modification to NWP 40 are limited to non-tidal waters, including
activities in non-tidal wetlands contiguous to tidal waters.
Acreage Limitations and PCN Thresholds
The Corps is seeking comments on the acreage limitations and PCN
thresholds for the proposed new NWPs and the proposed modifications to
existing NWPs. The Corps will review and consider acreage limits that
are smaller or greater than those proposed. If the Corps believes that
an acreage limit substantially higher than proposed may be appropriate,
then a new proposal with an opportunity to comment would be published
in the Federal Register.
For the new NWPs, the acreage limitations range from 1 acre for NWP
D to 10 acres for NWP B. NWP F is limited to the minimum necessary to
reconfigure the drainage ditch. The upper limits for the proposed
modifications to existing NWPs are highly variable. NWP 27 will
continue to have no acreage limit, since it authorizes projects that
restore or enhance the aquatic environment. The acreage limits for the
other proposed modifications range from \1/3\ acre for private roads
under NWP 14 to 3 acres for NWP 40. The proposed modification to NWP 7
will not have an acreage limitation, but will restrict the work to the
minimum necessary to restore the facility to its original
configuration.
The PCN threshold for many of the proposed new NWPs and
modifications to existing NWPs will be the loss of greater than \1/3\
acre of waters of the United States. In addition, there are PCN
requirements for impacts to open waters and streams for some of these
NWPs. NWP A requires a PCN for any impacts to open waters below the
ordinary high water mark. NWP B requires a PCN for all activities. NWPs
C and D and the proposed modification of NWP 40 require a PCN if
greater than 500 linear feet of stream bed is filled or excavated. NWP
E and the proposed modification to NWP 7 will require notification for
all activities. NWP F will require notification for any ditch
reconfiguration that involves sidecasting excavated material into
waters of the United States. The proposed modifications to NWP 3 will
require notification for the removal of accumulated sediments and
debris in the vicinity of existing structures and for restoration of
upland areas damaged by storms, floods, or other discrete events that
affect greater than \1/3\ acre of waters of the United States. The
repair, rehabilitation, or replacement of currently serviceable
structures or fills will not require notification under the proposed
modification of NWP 3.
Mitigation
A requirement of the NWPs is that project proponents must avoid and
minimize impacts to waters of the United States at the project site to
the maximum extent practicable. (See General Condition 20.) For those
unavoidable impacts to waters of the United States, including wetlands,
[[Page 36045]]
compensatory mitigation may be required, either through regional
conditioning or on a case-by-case basis. Compensatory mitigation will
normally be required by district engineers for those projects which
require notification (i.e., impacts to more than \1/3\ acre of waters
of the United States for most of the proposed NWPs). Compensatory
mitigation will be required by Corps districts to offset the adverse
environmental effects to the aquatic ecosystem of the proposed work to
a level that ensures no more than minimal cumulative adverse
environmental effects.
There are several ways that a permittee can provide compensatory
mitigation for a project that is authorized by NWPs. The permittee can
restore, create, enhance, or preserve wetlands or other aquatic
habitats to replace the functions and values of the wetlands and other
waters of the United States that are lost as a result of the project.
In most situations, establishing or maintaining a vegetated buffer,
including uplands adjacent to open waters, will be an important part of
a mitigation plan. Another method of compensatory mitigation is
mitigation banks. A mitigation bank is a site where wetlands or other
aquatic resources are restored, created, enhanced, or preserved to
provide compensatory mitigation in advance of the authorized impacts.
The entity that developed the mitigation bank provides these aquatic
resources in return for payment from the permittee. Federal guidance
for the establishment, use, and operation of mitigation banks was
published in the Federal Register on November 28, 1995 (60 FR 58605-
58614). A third method of compensatory mitigation is in lieu fee
programs, which may be used to offset losses of waters of the United
States. In lieu fee programs are typically operated by States,
counties, and private and public organizations who protect, restore,
and enhance open space, including waters of the United States.
Permittees may use in lieu fee programs that protect, enhance, or
restore wetlands, riparian corridors, and open water areas, including
upland buffers which protect water quality. The permittee pays a fee to
the operator of the in lieu fee program in exchange for the protection,
enhancement, and restoration of these areas. In lieu fee programs
should be watershed based and focused in areas where restoring,
enhancing, and preserving the aquatic system and associated uplands
will provide the greatest overall protection of that particular
watershed. Regardless of the method used to provide compensatory
mitigation, district engineers have the discretionary authority to
determine the type and quantity of compensatory mitigation that is
appropriate to replace lost aquatic functions and values.
Cumulative Impacts
Cumulative adverse effects on the aquatic environment caused by
activities authorized by NWPs, regional general permits, and individual
permits must be monitored by the districts on a watershed basis.
Assessment of cumulative impacts on a watershed basis is the only
technically sound approach and must focus on essential aquatic
functions and values. No determination of minimal individual and
cumulative adverse effects can be made on a national basis, because the
functions and values of aquatic resources vary considerably across the
nation and cannot be monitored or assessed by Corps headquarters.
Individual districts are better suited to assess cumulative impacts
because they have a better understanding of the local conditions and
processes used to evaluate whether cumulative impacts to the aquatic
environment in a particular watershed will be more than minimal as a
result of work authorized by the Corps. In some watersheds, a large
acreage of loss of waters offset with appropriate compensatory
mitigation could occur and result in no more than minimal cumulative
adverse effects on that watershed. Similar wetland losses in other
watersheds could exceed the minimal impact threshold, if the wetlands
in that watershed were of high value, or if historic wetland losses in
that watershed were extensive, making the remaining wetlands especially
valuable due to the scarcity of that habitat type. Therefore, each
district generally monitors the losses of waters of the United States
in each watershed, as well as the gains through restoration,
enhancement, creation, and preservation of aquatic resources, to
determine whether the effects of these actions result in more than
minimal cumulative adverse effects on the aquatic environment. Regional
conditions can be used by districts to allow the continued use of these
NWPs while making certain that the individual and cumulative adverse
environmental effects to the aquatic ecosystem are not more than
minimal. The Corps has established a process on a nationwide basis
(regional conditioning), a requirement that each district compensate
for impacts through mitigation, as well as nationwide PCN limits, all
of which will ensure no more than minimal adverse effects will occur on
a cumulative basis. The Corps will continue to work towards the goal of
no net loss of functions and values of the Nation's aquatic resources.
Division engineers can revoke any of the proposed NWPs in aquatic
environments of particularly high value or in specific geographic areas
(e.g., watersheds), if they believe that use of particular NWPs in
these areas will result in more than minimal individual and cumulative
adverse environmental effects to the aquatic ecosystem. The proposed
NWPs may be revoked where districts have implemented programmatic
general permits (PGPs) for similar activities, as long as the PGP
provides at least the level of protection of the aquatic environment
that the Corps does through its NWP program.
Data Collection by Corps Districts
Corps districts use databases to collect information concerning
permit applications, issued standard permits, issued general permit
authorizations, denied permit applications, and enforcement activities.
Most districts utilize the Regulatory Analysis and Management System
(RAMS and RAMSII). The Corps has been continuously improving its data
collection efforts, especially for the NWP Program. Districts have been
collecting the following information for all permit actions, including
NWP authorizations:
The name of the permit applicant.
The description and location of the work.
The amount of requested impacts to non-tidal and/or tidal
wetlands, in acres.
The amount of authorized impacts to non-tidal and/or tidal
wetlands, in acres.
The amount of compensatory mitigation provided by the
permittee, in acres of non-tidal and/or tidal wetlands restored,
enhanced, created, or preserved.
The amount of non-tidal and/or tidal wetlands impacted as
a result of an unauthorized activity, in acres.
The amount of non-tidal and/or tidal wetlands restored as
a result of an enforcement action, in acres.
Since May 1, 1997, districts have been required to collect
additional information on the environmental impacts of the NWPs.
Wetland impacts are entered in the database as acres of wetlands
permitted to be filled, excavated, drained, and flooded. Stream impacts
are quantified in linear feet of stream bed that are permitted to be
impacted by an activity that involves filling or excavation within a
stream. The Corps is also collecting data on the
[[Page 36046]]
types of waters impacted (i.e., estuarine, lacustrine, marine,
palustrine, or riverine), based on the Cowardin classification system.
As resources permit, Corps districts may use the remainder of the
Cowardin classification system to better define the types of aquatic
habitats being impacted. The United States Geological Survey (U.S.G.S.)
hydrological unit code in which the affected waterbody is located is
also entered into the database. The U.S.G.S. hydrological unit code
system identifies over 2,000 watersheds nationwide. Wetland mitigation
is entered in the database as acres of wetlands that are required to be
restored, created, enhanced, and preserved. Mitigation for impacts
authorized by NWPs is also tracked by the method of mitigation (i.e.,
mitigation provided by permittee, mitigation bank, or some other
method, such as an in lieu fee program) and acreage of compensatory
mitigation.
For the NWP program, the Corps is monitoring: (1) the number of
verified authorizations; (2) the number of requests where discretionary
authority was exercised because the activity would have resulted in
more than minimal adverse effects; (3) the number of NWP authorization
requests that were denied and an individual permit review was required;
(4) the number of NWP authorization requests that were withdrawn
because no permit was required; (5) the number of NWP authorization
requests that were withdrawn based on the applicant's decision; and (6)
the number of NWP authorization requests that were withdrawn because
the Corps received more than one request for the same project (i.e., an
accounting error occurred).
In addition, the Corps is collecting data on the impact of the NWPs
on Federally-listed endangered and threatened species and their
critical habitat. The Corps is monitoring whether or not a particular
activity is proposed in critical habitat for a Federally-listed
endangered or threatened species. The Corps is also collecting data on
which endangered or threatened species are involved in verified NWP
activities, as well as the ESA determination for that activity (i.e.,
no effect, not likely to adversely affect, no jeopardy/no adverse
modification, or jeopardy/adverse modification).
As part of its effort to develop NWPs to replace NWP 26, the Corps
has been collecting more data on the types of activities authorized by
NWP 26. For this data collection effort, these types of activities are
classified as follows: institutional, agricultural, silvicultural,
mining aggregates, mining other, retail individual, retail multiple,
residential multiple, industrial, transportation, storm water
management, impoundment, treatment facility, or ``other''. The Corps is
also classifying these activities into the following categories:
commercial, non-commercial, and governmental. For every NWP action, the
location of the impact area within the watershed is recorded as either:
(1) above headwaters or in isolated waters, or (2) below headwaters and
not in isolated waters. When NWP 26 expires, the Corps will no longer
collect the data mentioned in this paragraph.
Data collection requires a balance between the amount of work
required to evaluate permit applications and the usefulness of the data
to monitor the impacts of the authorized activities on the aquatic
environment. The amount and types of collected information should be
limited to the data that is needed for cumulative impact assessment
while allowing districts the time and personnel resources to
effectively evaluate permit applications and conduct enforcement
activities. Corps districts will continue to monitor regulated
activities on a watershed basis to ensure that the activities
authorized by NWPs do not result in more than minimal cumulative
adverse effects on the aquatic environment in a particular watershed.
In addition, data collection helps the Corps monitor the effects of
authorized activities on endangered and threatened species. In the
future, the Corps will evaluate our current overall data collection
efforts on standard and general permits, including NWPs, to better and
more consistently assess the effects of these actions on the aquatic
environment.
Process for Issuing the New and Modified NWPs
The process for issuing the proposed new and modified NWPs is
illustrated in Figure 1. The regional conditioning and 401/CZM
certification processes are also illustrated in Figure 1. The proposal
in this Federal Register is the beginning of this process. During the
60-day comment period, there will be a public hearing in Washington, DC
to solicit comments on the proposed new and modified NWPs. We will
initially review the comments received in response to this Federal
Register notice with a task force staffed by Corps regulatory field
personnel. Upon completion of our initial review of the comments, we
will complete an initial draft of the final NWPs and begin agency
coordination; this process will last approximately 2 months. After
agency coordination is finished, we will complete the final version of
the NWPs for publication in the Federal Register by December 28, 1998.
The State 401/CZM agencies will have 60 days to complete their
certification decisions. The Corps will then finalize its regional
conditions and then certify that the NWPs, with any regional conditions
or geographic revocations, will only authorize activities with minimal
adverse environmental effects, both individually and cumulatively. The
NWPs will become effective 90 days later, as NWP 26 expires. The Corps
regional conditioning and 401/CZM certification processes are discussed
elsewhere in this notice.
BILLING CODE 3710-92-p
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[GRAPHIC] [TIFF OMITTED] TN01JY98.000
BILLING CODE 3710-92-C
[[Page 36048]]
Regional Conditioning of Nationwide Permits
As previously discussed in this notice, the Corps is committed to
developing a package of replacement permits with demonstrably less
environmental impact than the permit they replace. An important element
in achieving this goal is the successful implementation of a
significantly improved regionalization process. The coordinated
involvement of States, Tribes, the public, and others, at the District
level, will assist the Corps in identifying appropriate conditions and
in developing permits that ensure effective protection at the local
level of wetlands and other water resources. Moreover, effective
regional conditioning of the NWPs by the Corps Districts will ensure
compliance with the statutory requirement that the NWPs result in no
more than minimal adverse effects on the aquatic environment and will
support the Administration's goal of no net loss of aquatic functions
and values on a watershed and programmatic basis.
Although a regionalization process has been required during past
reissuances of the NWPs, we recognize that those efforts were not
always the most effective in ensuring the development of appropriate
conditions in each Corps District. We are confident, however, that the
process proposed in today's notice is fundamentally different from
those past approaches and will yield an improved environmental result
that makes sense for local watersheds throughout the country. In
general terms, the new approach provides the public, as well as other
Federal and State/Tribal agencies, with two opportunities to comment on
proposed Corps regional conditions before they are finalized, involves
a more active and coordinated role for the Federal resource agencies
throughout the process, and results in final decision documents that
include certifications by each Division Engineer that each NWP, as
conditioned, will authorize only minimal adverse environmental effects.
The regionalization process is outlined in greater detail below.
There are two types of regional conditions: conditions added as
part of the Section 401 water quality certification/Coastal Zone
Management Act (401/CZM) process and conditions added by the Corps
Divisions after consultation with Corps Districts, other agencies, and
the public. The 401/CZM regional conditions for the proposed NWPs
automatically become regional conditions on those NWPs. However, if the
division engineer determines that those conditions do not meet the
provisions of 33 CFR 325.4, the 401 certification and/or CZM
concurrence will be treated as a denial without prejudice. The 401/CZM
regional conditions must be announced by the final Corps public notice
concerning the final NWPs. Corps regional conditions should generally
not, but may, duplicate 401/CZM regional conditions. Corps regional
conditions are added to NWPs by division engineers after a public
notice comment period. Corps regional conditions cannot increase the
terms or limits of the NWPs, delete or modify NWP conditions, change or
be inconsistent with Corps regulations, be unenforceable, require an
individual 401 water quality certification or CZM concurrence, or
require another agency decision, review, or approval.
When each Corps district issues its initial public notice for the
proposed NWPs, approximately concurrent with this Federal Register
notice, the public notice will include: (1) Corps regional conditions
for NWP 26, if any, that are applicable to any of the proposed NWPs;
(2) the existing Corps regional conditions, if any, for the NWPs that
are proposed to be modified (i.e., NWPs 3, 7, 12, 14, 27, and 40); and
(3) any additional Corps regional conditions that the district is
proposing at that time. This initial public notice will also request
comments or suggestions for additional Corps regional conditions for
the NWPs. The initial public notice may also include, for informational
purposes only, any State/tribal 401/CZM regional conditions for NWP 26
and for the NWPs that are proposed to be modified. The public does not
have the opportunity to comment on the State/tribal 401/CZM regional
conditions through the Corps. There is a separate State/tribal process
that involves the public regarding State/tribal 401/CZM certifications.
Each district will announce the final State/tribal 401/CZM regional
conditions in the final NWP public notice. Each district may also
propose Corps regional conditions for any existing NWP in this initial
public notice.
The initial public notice will request that the general public and
other agencies submit comments on the NWPs and any regional conditions
proposed by the Corps, to suggest additional Corps regional conditions,
or to suggest specific watersheds or waterbodies where Corps regional
conditions should be implemented, or geographic areas or specific
watersheds or waterbodies where certain NWPs should be suspended or
revoked. After the close of the comment period for the initial public
notice, each district will coordinate with the Federal and State
resource agencies to develop additional Corps regional conditions. In
addition, each district will hold a public meeting to discuss regional
conditioning of the NWPs with the public and representatives of
Federal, State, tribal, and local agencies. Based on the initial input,
the Corps will develop proposed regional conditions and each district
will issue a second public notice to solicit comments on those proposed
Corps regional conditions. After the close of the comment period for
the second public notice, each district will coordinate with the
Federal and State resource agencies to develop final Corps regional
conditions. Prior to the publication of the final NWPs in the Federal
Register, the District Engineer will meet with the Regional
Administrator of EPA and the Regional Directors of FWS and NMFS to
discuss the proposed regional conditions and resolve any disputes
concerning Corps regional conditions.
Prior to the date the NWPs become effective, each Division Engineer
will prepare supplemental decision documents addressing the regional
conditions for each NWP. Each decision document will include a
statement, by the Division Engineer, certifying that the Corps regional
conditions imposed on the NWPs will ensure that those NWPs will
authorize only activities with minimal adverse effects. After the
Division Engineer establishes the Corps regional conditions, each
district will issue final public notices announcing the final 401/CZM
regional conditions and Corps regional conditions. Each district may
propose additional Corps regional conditions in future public notices.
Corps regional conditions will be tailored to the issues related to
the aquatic environment within each district, and will be used to
ensure that the effects of the NWP program on the aquatic environment
are minimal, both individually and cumulatively. Corps regional
conditions can cover a large geographic area (e.g., a State or county),
a particular waterbody or watershed, or a specific type of water of the
United States (e.g., trout streams). Examples of Corps regional
conditions that may be used by districts to restrict the use of the
NWPs include:
Restricting the types of waters of the United States where
the NWPs may be used (e.g., fens, hemi-marshes, prairie potholes,
bottomland hardwoods, etc.) or prohibiting the use of some or all of
the NWPs in those types of waters or in specific watersheds;
[[Page 36049]]
Restricting or prohibiting the use of NWPs in areas
covered by a Special Area Management Plan, or an Advanced
Identification study with associated regional general permits;
Adding ``Notification'' requirements to NWPs to require
PCNs for all work in certain watersheds or certain types of waters of
the United States, or lowering the PCN threshold;
Reducing the acreage thresholds in certain types of waters
of the United States;
Revoking certain NWPs on a geographic or watershed basis;
Restricting activities authorized by NWPs to certain times
of the year in certain waters of the United States, to minimize the
adverse effects of those activities on areas used by fish or shellfish
for spawning, nesting wildlife, or other ecologically cyclical events.
The Corps regional conditions implemented by each district do not
supersede the general conditions of the nationwide permit program. The
general conditions address the Endangered Species Act, the National
Historic Preservation Act of 1966, the Wild and Scenic Rivers Act,
Section 401 water quality certification, Coastal Zone Management,
navigation, etc. Given the extent of the coordination already mandated
by Federal law, the addition of regional conditions at the State,
Tribal, watershed, or geographic level will help ensure that important
public interest factors are considered when evaluating projects for NWP
authorization.
Comments on regional issues and regional conditions must be sent to
the appropriate District Engineer, as indicated below:
Alabama
Mobile District Engineer, ATTN: CESAM-OP-S, 109 St. Joseph Street,
Mobile, AL 36602-3630
Alaska
Alaska District Engineer, ATTN: CEPOA-CO-R, P.O. Box 898, Anchorage, AK
99506-0898
Arizona
Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 2711, Los
Angeles, CA 90053-2325
Arkansas
Little Rock District Engineer, ATTN: CESWL-CO-P, P.O. Box 867,
Little Rock, AR 72203-0867
California
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-4794
Colorado
Albuquerque District Engineer, ATTN: CESPA-CO-R, 4101 Jefferson
Plaza NE, Rm 313, Albuquerque, NM 87109
Connecticut
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia Road,
Concord, MA 01742-2751
Delaware
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square East Philadelphia, PA 19107-3390
Florida
Jacksonville District Engineer, ATTN: CESAJ-CO-R, P.O. Box 4970,
Jacksonville, FL 32202-4412
Georgia
Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889,
Savannah, GA 31402-0889
Hawaii
Honolulu District Engineer, ATTN: CEPOH-ET-PO, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
Idaho
Walla Walla District Engineer, ATTN: CENWW-OP-RF, 210 N. Third
Street, City-County Airport, Walla Walla, WA 99362-1876
Illinois
Rock Island District Engineer, ATTN: CEMVR-RD, P.O. Box 004, Rock
Island, IL 61204-2004
Indiana
Louisville District Engineer, ATTN: CELRL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
Iowa
Rock Island District Engineer, ATTN: CEMVR-RD, P.O. Box 2004, Rock
Island, IL 61204-2004
Kansas
Kansas City District Engineer, ATTN: CENWK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
Kentucky
Louisville District Engineer, ATTN: CELRL-OR-F, P.O. Box 59,
Louisville, KY 40201-0059
Louisiana
New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267,
New Orleans, LA 70160-0267
Maine
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia Road,
Concord, MA 01742-2751
Maryland
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Massachusetts
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia Road,
Concord, MA 01742-2751
Michigan
Detroit District Engineer, ATTN: CELRE-CO-L, P.O. Box 1027,
Detroit, MI 48231-1027
Minnesota
St. Paul District Engineer, ATTN: CEMVP-CO-R, 190 Fifth Street
East, St. Paul, MN 55101-1638
Mississippi
Vicksburg District Engineer, ATTN: CEMVK-CO-0, 201 N. Frontage
Road, Vicksburg, MS 39180-5191
Missouri
Kansas City District Engineer, ATTN: CENWK-OD-P, 700 Federal
Building, 601 E. 12th Street, Kansas City, MO 64106-2896
Montana
Omaha District Engineer, ATTN: CENWO-OP-R, 215 N. 17th Street,
Omaha, NE 68102-4978
Nebraska
Omaha District Engineer, ATTN: CENWO-OP-R, 215 N. 17th Street,
Omaha, NE 68102-4978
Nevada
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street,
Sacramento, CA 95814-2922
New Hampshire
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia Road,
Concord, MA 01742-2751
New Jersey
Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker
Building, 100 Penn Square East, Philadelphia, PA 19107-3390
New Mexico
Albuquerque District Engineer, ATTN: CESWA-CO-R, 4101 Jefferson
Plaza NE, Rm 313, Albuquerque, NM 87109
New York
New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza, New
York, NY 10278-9998
North Carolina
Wilmington District Engineer, ATTN: CESAW-CO-R, P.O. Box 1890,
Wilmington, NC 28402-1890
North Dakota
Omaha District Engineer, ATTN: CENWO-OP-R, 215 North 17th Street,
Omaha, NE 68102-4978
Ohio
Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
Oklahoma
Tulsa District Engineer, ATTN: CESWT-OD-R, P.O. Box 61, Tulsa, OK
74121-0061
Oregon
Portland District Engineer, ATTN: CENWP-PE-G, P.O. Box 2946,
Portland, OR 97208-2946
Pennsylvania
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Rhode Island
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia Road,
Concord, MA 01742-2751
[[Page 36050]]
South Carolina
Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919,
Charleston, SC 29402-0919
South Dakota
Omaha District Engineer, ATTN: CENWO-OP-R, 215 North 17th Street,
Omaha, NE 68102-4978
Tennessee
Nashville District Engineer, ATTN: CELRN-OR-F, P.O. Box 1070,
Nashville, TN 37202-1070
Texas
Ft. Worth District Engineer, ATTN: CESWF-OD-R, P.O. Box 17300, Ft.
Worth, TX 76102-0300
Utah
Sacramento District Engineer, ATTN: CESPK-CO-O, 1325 J Street, CA
95814-2922
Vermont
New England District Engineer, ATTN: CENAE-OD-R, 696 Virginia Road,
Concord, MA 01742-2751
Virginia
Norfolk District Engineer, ATTN: CENAO-OP-R, 803 Front Street,
Norfolk, VA 23510-1096
Washington
Seattle District Engineer, ATTN: CENWS-OP-RG, P.O. Box 3755,
Seattle, WA 98124-2255
West Virginia
Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street,
Huntington, WV 25701-2070
Wisconsin
St. Paul District Engineer, ATTN: CEMVP-CO-R, 190 Fifth Street
East, St. Paul, MN 55101-1638
Wyoming
Omaha District Engineer, ATTN: CENWO-OP-R, 215 North 17th Street,
NE 68102-4978
District of Columbia
Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715,
Baltimore, MD 21203-1715
Pacific Territories
Honolulu District Engineer, ATTN: CEPOH-ET-PO, Building 230, Fort
Shafter, Honolulu, HI 96858-5440
Puerto Rico & Virgin Islands
Jacksonville District Engineer, ATTN: CESAJ-CO-R, P.O. Box 4970,
Jacksonville, FL 32202-4412
State (or Tribal) Certification of Nationwide Permits
State or tribal water quality certification pursuant to Section 401
of the Clean Water Act, or waiver thereof, is required for activities
authorized by NWPs which may result in a discharge into waters of the
United States. In addition, any State with a Federally approved Coastal
Zone Management (CZM) Plan must agree with the Corps determination that
activities authorized by NWPs which are within, or will affect any land
or water uses or natural resources of the State's coastal zone, are
consistent with the CZM plan. Section 401 water quality certifications
and/or CZM consistency determinations may be conditioned, denied, or
authorized for parts of the NWPs.
The Corps believes that, in general, the activities authorized by
the NWPs will not violate State or tribal water quality standards and
will be consistent with State CZM Plans. The NWPs are conditioned to
ensure that adverse environmental effects will be minimal and are the
types of activities that would be routinely authorized, if evaluated
under the individual permit process. The Corps recognizes that in some
States or tribes there will be a need to add regional conditions or
individual State or tribal review for some activities to ensure
compliance with State or tribal water quality standards or consistency
with State CZM Plans. The Corps goal is to develop such conditions so
that the States or tribes can issue 401 water quality certifications or
CZM consistency agreements. Therefore, each Corps district will
initiate discussions with their respective States or tribes, as
appropriate, following publication of this proposal to discuss issues
of concern and identify regional modification and other approaches to
the scope of waters, activities, discharges, and notification, as
appropriate, to resolve these issues. Note that there will be some
States where an SPGP has been adopted and the NWPs have been wholly or
partially revoked. Concurrent with today's proposal, Corps districts
may be proposing modification or revocation of the NWPs in States where
SPGPs will be used in place of some or all of the NWP program.
Section 401 of the Clean Water Act: This Federal Register notice of
these NWPs serves as the Corps application to the States, tribes, or
EPA, where appropriate, for 401 water quality certification of the
activities authorized by these NWPs. The States, tribes, and EPA, where
appropriate, are requested to issue, deny, or waive certification
pursuant to 33 CFR 330.4(c) for these NWPs.
Proposed NWPs A, B, C, D, E, and F, and the proposed modifications
to NWPs 12, 14, 27, and 40 involve activities which would result in
discharges and therefore 401 water quality certification is required.
The proposed modifications to NWPs 3 and 7 involve various
activities, some of which may result in a discharge and require 401
water quality certification and others of which do not. State denial of
401 water quality certification for any specific NWP affects only those
activities which may result in a discharge. For those activities not
involving discharges, the NWP remains in effect.
If a State denies a 401 water quality certification for certain
activities within that State, then the Corps will deny NWP
authorization for those activities without prejudice. Corps districts
will issue provisional NWP verification letters upon receipt of a PCN
for such projects. The provisional verification letter will contain all
general and regional conditions as well as any project specific
conditions the Corps determines are necessary, and will notify the
applicant that they must obtain a project specific Section 401 water
quality certification, or waiver thereof, prior to starting work in
waters of the United States. Anyone wanting to perform such activities
where a PCN is not required must first obtain a project specific 401
water quality certification or waiver thereof from the State before
proceeding under the NWP. This requirement is provided at 33 CFR
330.4(c).
Section 307 of the Coastal Zone Management Act (CZMA): This Federal
Register notice serves as the Corps determination that the activities
authorized by these NWPs are consistent with States' CZM programs,
where applicable. This determination is contingent upon the addition of
State CZM conditions and/or regional conditions or the issuance by the
State of an individual consistency concurrence, where necessary. The
States are requested to agree or disagree with the consistency
determination pursuant to 33 CFR 330.4(d) for these NWPs.
The Corps CZMA consistency determination only applies to NWP
authorizations for activities that are within, or affect any land or
water uses or natural resources of a State's coastal zone. NWP
authorizations for activities that are not within or would not affect a
State's coastal zone are not contingent on such State's agreement or
disagreement with the Corps consistency determinations.
If a State disagrees with the Corps consistency determination for
certain activities, then the Corps will deny authorization for those
activities without prejudice. Corps districts will issue provisional
NWP verification letters upon receipt of a PCN for such projects. The
provisional verification letter will contain all general and regional
conditions as well as any project specific conditions the Corps
[[Page 36051]]
determines are necessary, and will notify the applicant that they must
obtain a project specific CZMA consistency determination prior to
starting work in waters of the United States. Anyone wanting to perform
such activities where a PCN is not required must present a consistency
certification to the appropriate State agency for concurrence. Upon
concurrence with such consistency certifications by the State, the
activity would be authorized by the NWP. This requirement is provided
at 33 CFR 330.4(d).
Discussion of Proposed Nationwide Permits
The following is a discussion of the new NWPs we are proposing to
issue. We have identified these NWPs by letters received in response to
the December 13, 1996, Federal Register, Final Notice of Issuance,
Reissuance, and Modification of Nationwide Permits (61 FR 65874) and as
a result of a workshop at the Corps 1997 Biennial National Regulatory
Program Conference. If issued, they would be placed at a reserved NWP
number or given a new number. The proposed modification to NWP 29 is
discussed at the end of the preamble.
A. Residential, Commercial, and Institutional Activities
One commenter recommended an NWP to authorize the construction of
residential developments and associated activities, including roads,
stormwater management facilities, and amenities for recreation, such as
golf courses, swimming pools, playing fields, and hiking and biking
trails.
Similar comments were received recommending that the Corps develop
an NWP for the construction of industrial and office developments,
including retail and recreational facilities. Another commenter
recommended an NWP for the development and modification of commercial
real estate projects, with different thresholds for site plan
development and the construction of roads and utilities. A third
commenter recommended an NWP for commercial and industrial activities.
An NWP for commercial development activities was also recommended by
the participants at the 1997 Biennial National Regulatory Program
Conference workshop.
Comments were also received recommending an NWP for the
construction of Federal, State, Tribal and local government buildings
and institutional buildings, including, but not limited to, schools,
fire stations, public works buildings, libraries, hospitals and places
of worship, and their attendant features (septic systems, parking lots,
loading docks, playgrounds, etc.).
From May 1, 1997, through December 31, 1997, NWP 26 was used to
authorize 1,581 residential, commercial or institutional developments,
impacting approximately 835 acres of wetlands and 42,190 linear feet of
stream bed. Approximately 2,634 acres of compensatory mitigation were
provided to offset the adverse environmental effects of these projects.
The Corps is proposing an NWP to authorize discharges of dredged or
fill material into non-tidal waters of the United States, excluding
wetlands contiguous to tidal waters, for residential, commercial, and
institutional development activities, and associated infrastructure,
including utilities, roads, driveways, and sidewalks. Infrastructure is
integral to residential, commercial, and institutional development
activities, and should be included as a part of the single and complete
project for NWP authorization, unless the road or utility line is a
component of a separate linear project that will provide service to
other residential subdivisions, commercial sites, or other areas.
This NWP is intended to authorize the construction of residential
developments (particularly subdivisions), commercial developments, and
institutional developments with minimal impacts that comply with the
terms and conditions of the permit. These types of activities are
currently authorized by NWP 26. This NWP is not intended to replace NWP
29, which authorizes the construction of a single family residence to
be used only by the person who will use the house as a personal
residence. Contractors and commercial developers cannot use NWP 29 to
construct a residence which would subsequently be offered for sale upon
completion. Furthermore, NWP 29 authorizes discharges into all non-
tidal waters of the United States, whereas NWP A authorizes discharges
into non-tidal waters of the United States, excluding non-tidal
wetlands contiguous to tidal waters.
The Corps is also considering and seeking comments on options to
establish acreage limits for this NWP. One option would be to establish
a simple acreage limit, such as 3 acres, for a single and complete
project. Another option would be to establish a sliding scale or
indexing of impact acreage limits for this NWP, based on parcel size,
percentage of wetlands on the parcel, or other criteria. An example of
such a sliding scale, based on parcel size, is shown in the table
below:
------------------------------------------------------------------------
Maximum
acreage
Parcel Size loss
authorized
------------------------------------------------------------------------
Less than 5 acres.......................................... \1/4\ acre.
5-10 acres................................................. \1/2\ acre.
10-15 acres................................................ 1 acre.
15-100 acres............................................... 2 acres.
Greater than 100 acres..................................... 3 acres.
------------------------------------------------------------------------
Such a scheme helps ensure minimal adverse impacts by authorizing
smaller impacts for smaller projects and encouraging planning of
developments that reduces impacts to aquatic resources. For example,
under a sliding scale, a 25-acre development could result in the loss
of only 2 acres of waters of the United States, whereas under a simple
acreage limit the permittee could impact up to 3 acres. For NWP A, the
Corps is soliciting comments on the use of a sliding scale, as well as
acreage for parcel sizes and impacts to waters of the United States
that would be used for the sliding scale. The Corps is also seeking
comments on the benefits and drawbacks of such a sliding scale. The
Corps is also seeking comments on the PCN threshold(s) that would be
used in conjunction with the sliding scale of acreage limitation.
The Corps is proposing to require a PCN for losses of greater than
\1/3\ acre of non-tidal waters of the United States, or for any project
that would result in the loss of any open waters, such as perennial or
intermittent stream beds or lakes. The PCN will be subject to Corps-
only review where the project would result in the loss of 1 acre or
less of waters of the United States, and to review by the Corps and
coordinating agencies where the loss of waters of the United States
would exceed 1 acre. As part of the PCN, applicants must submit a
written statement to the District Engineer explaining why discharges in
waters of the United States must occur, what measures were taken to
avoid and minimize impacts, and how the permittee will provide
compensatory mitigation for those impacts. We have conditioned this NWP
to require compensatory mitigation for projects resulting in the loss
of greater than \1/3\ acre of waters of the United States. In general,
compensatory mitigation for losses below 1 acre will be provided most
effectively through mitigation banks and in lieu fee programs. The
compensatory mitigation proposal required for the PCN does not have to
include detailed plans and implementation schedules, but must
adequately describe the proposal so that
[[Page 36052]]
the District Engineer can determine if the proposed compensatory
mitigation is appropriate. If the project involves streams or other
open water, then buffers, including upland areas adjacent to the open
waters, to these areas may be required as a part of the compensatory
mitigation proposal. The permittee may be required to submit detailed
compensatory mitigation plans at a later date as a special condition of
the NWP authorization unless a mitigation bank or in lieu fee program
is used to provide the compensatory mitigation. For many of these types
of projects, the Corps believes that compensatory mitigation is
necessary to offset adverse impacts to waters of the United States.
The PCN requirement will allow district engineers to assert
discretionary authority when they have determined that the adverse
effects of the proposed work will be more than minimal. The Corps
believes that the issuance of this NWP, along with its terms,
limitations, and general conditions, as well as any regional or case-
specific conditions, will ensure that the authorized work will have no
more than minimal adverse effects, both individually and cumulatively,
on the aquatic environment on a watershed basis. Projects authorized by
this NWP must be designed to avoid and minimize impacts to waters of
the United States to the extent practicable on the project site. In
addition, the project design must reduce adverse effects to water
quality by maintaining off-site upstream and downstream baseflow
conditions, providing for stormwater management, and normally
maintaining a vegetated buffer zone if the project occurs in the
vicinity of open water. Through regional conditions, district engineers
may require additional watershed protection techniques, if appropriate.
This NWP cannot be used to authorize recreational facilities that
are not an integrated component of a residential, commercial, or
institutional development. The development of a master planned
community that includes residential, recreation, and commercial
activities may be authorized by NWP B. The issuance of this NWP, as
with any NWP, provides for the use of discretionary authority when
valuable or unique aquatic areas may be affected by this activity.
B. Master Planned Development Activities
One commenter proposed an NWP to authorize discharges of dredged or
fill material to construct residential, commercial, and industrial
developments that are planned or designed for the long term protection
of aquatic resources and are owned and managed by a single owner. Such
developments are designed for residential, industrial, and/or
commercial uses, as well as recreational uses. Master planned
developments can provide long term protection of valuable aquatic
resources by carefully integrating the development into the landscape
and protecting the remaining wetlands, open waters, and associated
buffers. These developments typically set aside wetlands, riparian
corridors, and valuable upland habitats for restoration, enhancement,
or preservation as part of the plan for the area.
Increasingly, counties and local communities across the country are
encouraging mixed-use development and encouraging land use planning
that incorporates consideration of the environment. Such initiatives
provide communities with an opportunity to address a variety of
concerns including protecting sensitive natural areas, consolidating
infrastructure, and maximizing the delivery of urban services. Through
local zoning and land use programs, governments are working to achieve
these goals by encouraging the development of environmentally
responsible, multiple-use communities. The Corps is committed to
ensuring that the NWP program is consistent with these goals and
objectives and is proposing this NWP to build on the incentives
currently provided by State and local governments.
The Corps is proposing an NWP for master planned development
activities that are designed, constructed, and managed to conserve and
enhance the functions and values of waters of the United States on the
project site. The Corps has designed NWP B to authorize only those
master planned development activities that are designed, constructed,
and managed to integrate multiple uses in a manner that conserves and
enhances the functions and values of the water resources on the project
site. Specifically, activities authorized by this permit often would
incorporate several land use categories, including residential uses
(e.g., single family homes, apartments), commercial uses (e.g., stores,
hotels, office buildings), industrial uses (e.g., water treatment
facilities), transportation uses (e.g., light rail, roads), and open
space uses (e.g., parks, trails).
This NWP authorizes discharges of dredged or fill material into
non-tidal waters of the United States, excluding non-tidal wetlands
contiguous to tidal waters, for the construction or expansion of master
planned developments. The Corps is seeking comments on the definition
of master planned development to use for this NWP. A PCN will be
required for all activities authorized by this NWP. The PCN must
include a wetland assessment that utilizes a functional assessment
method approved by the District Engineer. Permittees will be required
to avoid and minimize impacts to waters of the United States to the
maximum extent practicable and must include a written statement
detailing compliance with this condition. The PCN must also indicate on
the site plans all aquatic areas and adjacent buffer zones that would
be protected by conservation easements or other measures. All preserved
wetland areas, streams, mitigation areas, and buffer zones adjacent to
waters of the United States on the site must be protected by a deed
restriction, conservation easement, or other method of conservation and
preservation as a condition of the permit. The District Engineer will
review the proposed master planned development activities to ensure
that these features are designed to ensure resource conservation and
protection, and to protect aquatic resources.
The Corps is also considering and seeking comments on options to
establish acreage limits for this NWP. One option would be to establish
a simple acreage limit, such as 10 acres, for a single and complete
project. Another option would be to establish acreage limits for master
planned developments that are determined by indexing the upper limit of
adverse wetland impact to the size of the parcel, to the amount of
wetlands on the parcel, or to a percentage of the jurisdictional waters
of the United States on a project site. The following table is an
example of such a sliding scale, which indexes the acreage limit to
parcel size:
------------------------------------------------------------------------
Maximum
acreage
Parcel size loss
authorized
------------------------------------------------------------------------
100-200 acres.............................................. 3 acres.
200-300 acres.............................................. 5 acres.
300-500 acres.............................................. 7 acres.
Greater than 500 acres..................................... 10 acres.
------------------------------------------------------------------------
In this example, master planned developments constructed on parcels
less than 100 acres in size could not be authorized by this NWP.
Instead, NWP A or another NWP may be used to authorize the development,
if appropriate.
Examination of the above table shows that, in general, smaller
project sites would be allowed a relatively higher wetland impact
limit, as a percentage of
[[Page 36053]]
parcel size, than would larger sites, although the ratio does not
decrease proportionately as the parcel size increases. (This same
relationship already occurs under the existing NWP program, due to the
Corps requirements for on-site minimization and avoidance, and the use
of regional conditions). The use of a sliding scale can be justified by
the limited flexibility that a smaller project site affords an
applicant, whereas a larger project site affords an applicant more
options in developing the property, and consequently, more
opportunities to minimize wetland impacts. Such a method would differ
from most NWPs, in that most NWPs have acreage limits that do not vary
with the size of the project site. An indexed or varying scale for the
maximum threshold would encourage the master planning of larger sites
and discourage fragmenting projects to get more acres of impact to
waters of the United States.
Other methods of determining acreage limits that we are considering
would allow the applicant to adversely impact a certain percentage of
the jurisdictional waters of the United States on the project site
(e.g., 2% to 10% of the jurisdictional areas), or an amount of
jurisdictional waters equal to a percentage of the parcel size. For
example, at 1% of the total parcel size, a project on a 200 acre parcel
could impact up to 2 acres of waters of the United States, and at 2% of
the parcel size, a project on a 200 acre parcel could impact up to 4
acres of waters of the United States, etc.
These are just a few examples of an indexed or varying maximum
threshold concept that the Corps is considering. Any such concept, if
adopted, would still be subject to on-site avoidance and minimization
requirements, as well as regional conditions and/or other restrictions.
Any such permits would have to be carefully conditioned, and the
respective acreage limits (and implied incentives) studied closely in
order for these proposals to lead to a net reduction in the theoretical
acreage of impacted waters of the United States. The Corps is seeking
comments on the practicability of such concepts, the conditions that
should be attached to any such concepts, and the advantages or
disadvantages of implementing such concepts.
District engineers will consider the use of discretionary authority
when sensitive and/or unique areas or areas with significant social or
ecological functions and values may be adversely affected by the work.
Although we have proposed a high acreage limit for this NWP, impacts
must be avoided and minimized to the maximum extent practicable, with
appropriate compensatory mitigation to offset losses. Moreover, the
comprehensive approach to the watershed area to be developed and the
fact that all remaining waters of the United States and buffers will be
protected will benefit the overall aquatic system. The compensatory
mitigation should, in most cases, be on site and be incorporated into
the development. District engineers can impose special conditions on a
case-by-case basis to ensure the impacts are minimal. Regional
conditions can also be used to limit the use of this NWP in high value
aquatic ecosystems.
C. Stormwater Management Facilities
The Corps is proposing an NWP to authorize the discharge of dredged
or fill material into non-Section 10 waters of the United States,
including wetlands, for the construction and maintenance of stormwater
management facilities. This permit may be used to authorize the
construction of new stormwater management facilities including: the
excavation for stormwater ponds/facilities, detention, and retention
basins; installation and maintenance of water control structures,
outfall structures, and emergency spillways; and the maintenance
excavation of existing stormwater management ponds/facilities,
detention, and retention basins. This permit may not be used to
authorize any activities for the construction of ponds for other
purposes.
The proposed acreage limit is 2 acres for the construction of new
stormwater management facilities in order to authorize the construction
of consolidated regional stormwater management facilities. There is no
acreage limit proposed for the maintenance of stormwater management
facilities because maintenance of these facilities is necessary to
ensure the designed capacity is maintained for water quality
improvements and reduction of downstream erosion and flooding.
Notification will be required for the loss of greater than \1/3\ acre
of waters of the United States, including wetlands, the loss of greater
than 500 linear feet of stream bed, or the maintenance of existing
stormwater management facilities causing the loss of greater than 1
acre of wetlands. Between May 1, 1997, and December 31, 1997, NWP 26
was used to authorize the construction or maintenance of 358 stormwater
management facilities. These projects resulted in the loss of
approximately 107 acres of wetlands, and 33,170 linear feet of stream
bed, with 205 acres of compensatory mitigation provided by permittees.
In most cases, the construction of stormwater management facilities
will be included in project specific permits (e.g., NWPs A, B, C, and
D). There may also be cases where the construction of a stormwater
management facility will be required, not in association with the
construction of a residential, commercial, or institutional
development, but for a watershed management plan.
Placement of stormwater management facilities in jurisdictional
areas in certain circumstances may provide more environmentally
sensitive planning and benefits to the aquatic environment than placing
them in the uplands. By incorporating best management practices and
watershed protection techniques that provide for long-term protection
and enhancement of aquatic resources, and requiring a PCN for certain
activities, the Corps believes that impacts to the aquatic environment
will be minimal for this NWP. In response to a PCN, district engineers
can require special conditions on a case-by-case basis to ensure that
the impacts to the aquatic environment are minimal or assert
discretionary authority to require an individual permit for the work.
Division engineers may place regional conditions on this NWP. Such
regional conditions may utilize interagency regional guidance that
already exists, to the extent that such guidance complies with Corps
regulations and allows the development of enforceable regional
conditions.
D. Passive Recreational Facilities
One commenter recommended an NWP to authorize the construction of
recreational facilities, such as playgrounds, playing fields, swimming
pools and related structures, biking and hiking trails, and golf
courses. Another commenter proposed an NWP to authorize discharges
associated with the expansion or maintenance of ski areas. NWP 26 has
been used to construct recreational facilities in headwaters and
isolated wetlands. From May 1, 1997, through December 31, 1997, NWP 26
was used to authorize 57 recreational facilities, but this data does
not include information on the specific types of recreational
facilities authorized by NWP 26, or the acreage of impacts and
compensatory mitigation.
The Corps is proposing an NWP to authorize discharges of dredged or
fill material into non-tidal waters of the United States, excluding
non-tidal wetlands contiguous with tidal waters, for the construction
or expansion of passive recreational facilities. For the purposes of
this NWP, passive
[[Page 36054]]
recreational facilities are defined as low-impact recreational
facilities that are constructed so that they do not substantially
change preconstruction grades or deviate from natural landscape
contours for the following types of activities: biking, hiking,
camping, running, and walking. Passive recreational facilities may also
include the construction or expansion of golf courses or ski areas,
provided they are designed to be integrated with existing landscape
features, do not require substantial amounts of grading or filling, and
adverse effects to wetlands and riparian areas are minimized to the
extent practicable. District engineers may require vegetated buffers to
wetlands and streams and water quality management techniques as
measures to ensure the impacts caused by these recreational facilities
are minimal.
Passive recreational facilities can be either public or private and
will not have a substantial amount of buildings and other impervious
surfaces, such as concrete or asphalt. This NWP also authorizes the
construction of support facilities such as office buildings,
maintenance buildings, storage sheds, and stables, but does not
authorize the construction of associated hotels or restaurants. Some
grading and filling will be necessary to construct these facilities,
such as constructing a gravel running trail or paving a narrow bike
path through a park. Timber decks and walkways should be used where
possible to minimize adverse impacts to waters of the United States.
Campgrounds authorized by this NWP should have few impervious surfaces
such as pavement and should consist of small cleared areas for tents
and picnic tables connected by dirt or gravel trails or roads, with as
little grading and filling as possible.
The maximum acreage loss authorized by this NWP is 1 acre of non-
tidal waters of the United States (wetlands contiguous to tidal waters
are also excluded). The Corps is proposing to require a PCN for losses
of greater than \1/3\ acre of waters of the United States and/or
greater than 500 linear feet of stream bed. Recreational facilities
authorized by this NWP should be designed to protect valuable aquatic
and upland habitats through avoidance and minimization. Compensatory
mitigation will normally be required for losses of greater than \1/3\
acre of waters of the United States. A permittee may provide
compensatory mitigation through individual restoration, enhancement, or
creation of aquatic habitats, or through the preservation of adjacent
open or green space, particularly those that include wetland and
riparian habitats. Compensatory mitigation can also be provided through
in lieu fee programs, land trusts, and mitigation banks.
This NWP does not authorize the construction or expansion of
campgrounds for mobile homes, trailers, or recreational vehicles. This
NWP does not authorize the construction of playing fields, basketball
or tennis courts, race tracks, stadiums, or arenas. Any recreational
facility not authorized by this NWP may be authorized by another NWP, a
regional general permit, or individual permit. Playing fields,
playgrounds, and other golf courses may be authorized by NWP A if they
are an integral part of a residential subdivision. Commercial
recreational facilities may be authorized by NWP A. Playgrounds, ball
fields, golf courses, parks, and trails may be authorized by NWP B if
these facilities are part of a master planned development. The
construction of hotels and conference centers that are commonly
associated with recreational facilities may be authorized by NWP A.
By restricting this NWP to passive recreational facilities, we
believe that the impacts to the aquatic environment will be minimal. In
response to a PCN, district engineers can require special conditions on
a case-by-case basis to ensure that the impacts to the aquatic
environment are minimal or assert discretionary authority to require an
individual permit for the work.
E. Mining Activities
During the 1996 NWP reissuance process, the Corps proposed an NWP
for ``Mining Operations''. Based on the comments and information
gathered during the process, the Corps decided to encourage the
development of regional general permits, rather than to develop
national limits to meet the minimal effects requirement. As a part of
the initiative to replace NWP 26, the aggregate industry (i.e., sand,
gravel, crushed and broken stone) and hard rock metal/mineral mining
industry (i.e., extraction of metalliferous ores from subsurface
locations) provided information and proposed draft NWPs that they
believed would meet the minimal impact requirement.
The Corps has evaluated that input and developed a new proposed NWP
for mining activity discharges that would have minimal impact (as
conditioned) in certain aquatic ecosystems. We have organized the NWP
around specific activities, within specific aquatic ecosystems. We have
also provided separate sections for aggregate activities and for hard
rock/mineral mining activities. This recognizes that while some of the
discharges being regulated by the Corps are similar for both
industries, there are considerable differences in the impacts
associated with the subsequent processing of the materials being
extracted.
The terms and conditions of this NWP as well as the typical State
and local permitting requirements mining operations are subject to,
serve to minimize potential resource use conflicts and make it likely
that only those activities which have adequately addressed the issue of
such potential conflicts would be in a position to consider using this
NWP. Both industries are generally speaking highly regulated, often
subject to State and local land use planning requirements and
individual permits. The NWP does not obviate the need to obtain other
authorizations required by law, [33 CFR 330.4(b)]. For example, hard
rock/mineral mining operations often require National Pollution
Discharge Elimination System (NPDES) permits for discharges associated
with ore processing techniques, and those NPDES permits must be
obtained.
This NWP is expected to be used primarily for commercial mining
activities, although smaller, non-commercial operations may benefit
from this NWP. These activities provide both public and private
benefits by providing materials for construction, manufacturing, and
other industries.
The Corps is proposing to authorize discharges of dredged or fill
material associated with specific activities undertaken during the
mining of aggregate materials (i.e., sand, gravel, crushed and broken
stone) and hard rock/mineral mining at new and existing mining sites.
Mining activities authorized by this NWP include: discharges from
filling, excavation, and dredging; exploration; processing;
construction of berms, haul roads, dikes, and road crossings;
construction of settling ponds and settling basins; ditching and
trenching; mechanized landclearing; storm water and surface water
management; stream diversion or relocation; stockpiling; sediment and
erosion controls; grading; and other activities involved in mining and
mined land reclamation.
The Corps is proposing two options for the acreage limit for a
single and complete mining project in paragraph (j). We are requesting
comments on whether the acreage limit for a single and complete project
should be 3 acres or 2 acres. The acreage limit for a single and
complete project is a combination of the acreage limit for the specific
mining activities and the acreage limit for support activities.
This NWP authorizes only those Section 404 discharges associated
with
[[Page 36055]]
mining activities that have been considered to have minimal impacts, as
conditioned. For example, any NWP notification for in-stream mining
activities must include a discussion of necessary measures to prevent
increases in stream gradient and water velocities to prevent adverse
effects (e.g., head cutting, bank erosion) on upstream and downstream
channel conditions, as well as measures to minimize adverse effects to
downstream turbidity. We are particularly interested in comments
concerning conditions that are appropriate for mining activities in the
aquatic ecosystems we have identified.
While thresholds and limits have been developed for each type of
aquatic ecosystem, during the notification and evaluation process the
Corps may find that further conditioning of the nationwide permit for a
specific activity, including relocating or further reduction of the
impacts of the activity and/or additional compensatory mitigation, is
necessary or that the project should be evaluated under the Corps
individual permitting procedures. Specifically, if the District
Engineer determines that a proposed activity will have more than
minimal adverse environmental effects, the District Engineer will
require an individual permit. This would result in a project specific
alternatives analysis, including off-site alternatives.
This NWP requires that the permittee submit a reclamation plan with
the notification. District engineers have the flexibility to assert
discretionary authority and not authorize further mining activities
under this NWP if there is mined land reclamation required for
previously authorized mining activities that has not been completed.
Subsequently, upon completion of the required mined land reclamation,
the District Engineer may authorize further mining activities under
this NWP.
This NWP sets forth criteria that, combined with the discretion of
the District Engineer, and the regional conditioning that can take
place at the district and State levels, help ensure that only minimal
adverse environmental effects will result on a cumulative basis. With
required compensatory mitigation for losses of wetlands, environmental
gains in addition to adequate environmental protections can be
anticipated as an end result of use of this NWP. It is reasonable to
assume that the potential time and cost savings associated with use of
this NWP will encourage applicants to design their project within the
scope of the NWP rather than request an individual permit, which could
potentially have a greater adverse impact. In addition, use of this NWP
will enhance regulatory oversight of projects potentially encompassing
much greater impacts.
Acreage limitations in this NWP restrict its applicability. Mining
projects are of varying sizes, sometimes covering hundreds of acres,
which include areas under Corps jurisdiction. Mandatory compensatory
wetland mitigation ensures that losses of wetland functions are minimal
on a cumulative basis. Furthermore, as a result of the notification
requirements and the opportunity for regional conditioning, even small
discharges can be ineligible for this NWP if the unique environmental
function or ecological setting is determined to require further
protection.
Mining companies have considerable experience in land reclamation,
including the creation and restoration of wetland and riparian areas.
Regulatory confusion surrounding wetlands created intentionally or
unintentionally at mining operations serve as further testament to the
ability to create wetlands as a part of the mining and reclamation
process. We are requesting comments concerning the following position
as a part of the NWP notice:
``Waterfilled depressions and pits, ponds, etc., created in any
area not a ``water of the U.S.'', as a result of mining, processing,
and reclamation activities, shall not be considered ``waters of the
U.S.'' until one of the following occurs:
(1) All construction, mining, or excavation activities, processing
activities and reclamation activities have ceased and the affected site
has been fully reclaimed pursuant to an approved plan of reclamation;
or
(2) All construction, mining, or excavation activities, processing
activities and reclamation activities have ceased for a period of
fifteen (15) consecutive years or the property is no longer zoned for
mineral extraction, the same or successive operators are not actively
mining on contiguous properties, or reclamation bonding, if required,
is no longer in place; and the resulting body of water and adjacent
wetlands meet the definition of ``waters of the U.S.'' (33 CFR 328.3
(a)).''
This clarification would resolve a long-standing jurisdictional
debate that has consumed much time and effort on the part of the
regulated community and regulators alike, without contributing
significantly to environmental protection. Asserting jurisdiction in
such circumstances provides an incentive for operators to go out of
their way to make sure that wetlands do not occur on their properties,
thus depriving for the duration of normal activities, whatever benefits
would have accrued to the area as a result of the temporary or
permanent creation of wetlands. Similarly, such assertions lessen the
likelihood of non-mitigation wetland creation for fear of regulatory
problems.
F. Reshaping Existing Drainage Ditches
One commenter recommended an NWP to authorize the maintenance of
ditches. The maintenance of drainage ditches constructed in waters of
the United States does not require a Section 404 permit (i.e., the
maintenance is exempt), provided the drainage ditch is returned to its
original dimensions and configuration (see 33 CFR 323.4(a)(3)).
However, the modification or new construction of drainage ditches in
waters of the United States requires a Section 404 permit. NWP 26 has
been used in the past to authorize this activity in headwaters and
isolated wetlands.
The Corps is proposing an NWP to authorize discharges of dredged or
fill material into non-Section 10 waters of the United States for
reshaping existing drainage ditches by altering the cross-section of
the ditch to benefit the aquatic environment. Since maintenance of
drainage ditches to their original dimensions and configurations is
exempt from Section 404 permit requirements, the purpose of this NWP is
to encourage reshaping of ditches in a manner that provides benefits to
the aquatic environment. The original dimensions and configuration of
the ditch may not provide water quality benefits that could be achieved
with a different configuration. For example, the banks of ditches can
be graded at a gentler slope to reduce erosion and decrease sediment
transport down the ditch by trapping sediments. Shallower slopes also
increase the amount of vegetation along the bank of the ditch, which
can decrease erosion, increase nutrient and pollutant uptake by plants,
and increase the amount of habitat for wildlife. This NWP is limited to
reshaping currently serviceable drainage ditches constructed in waters
of the United States, provided the activity does not change the
location of the drainage ditch. The centerline of the reshaped drainage
ditch must be in essentially the same location as the centerline of the
existing ditch. This NWP does not authorize reconstruction of drainage
ditches that have become ineffective through abandonment or lack of
regular maintenance. This NWP may not be used to relocate drainage
ditches or to modify drainage ditches to increase the area drained by
the ditch
[[Page 36056]]
(e.g., by widening or deepening the ditch beyond its original design
dimensions or configuration) or to construct new drainage ditches if
the previous drainage ditches have been neglected long enough to
require reconstruction. This NWP does not authorize channelization or
relocation of streams to improve capacity of the streams to convey
water. The construction of new drainage ditches or the reconstruction
of drainage ditches may be authorized by an individual permit, another
NWP, or a regional general permit.
This NWP does not authorize the maintenance or reshaping of
drainage ditches constructed in navigable waters of the United States
(wetlands that are contiguous to Section 10 waters are also excluded).
A Section 10 permit is required for the maintenance or modification of
drainage ditches constructed in navigable waters of the United States.
The Corps is proposing to require notification for reshaping
drainage ditches where the material excavated during reconfiguration is
sidecast into waters of the United States. If the ditch is being
maintained to its original dimensions and configuration and the
excavated material is sidecast into waters of the United States, no
notification is necessary because this activity is exempt and a Section
404 permit is not required. Compensatory mitigation for the work
authorized by this NWP should not be required if the ditch is reshaped
to improve water quality. This activity can be considered to be self-
mitigating, in that reshaping the ditch will normally result in
improvements in water quality and any wetland vegetation that inhabited
the ditch prior to the work will recolonize the ditch. In addition, if
the project proponent did the work in such a manner that qualified for
the exemption, compensatory mitigation would not be required since the
activity is exempt. Requiring compensatory mitigation for modifying the
cross-sectional configuration of the ditch may encourage maintenance to
the original dimensions and configuration and discourage reshaping the
ditch to a more environmentally beneficial shape.
Division engineers can regionally condition this NWP to exclude
certain waterbodies or require notification when waters or unique areas
that provide significant social or ecological functions and values may
be adversely affected by the work. Activities authorized by this NWP
will have minimal adverse effect on the aquatic environment, since it
is limited to existing drainage ditches and activities that improve
water quality. District engineers can assert discretionary authority
when very sensitive or unique areas may be adversely affected by these
activities. It is unlikely that this NWP will result in a substantial
increase in the Corps workload. The PCN requirement allows Corps
districts, on a case-by-case basis, to add appropriate special
conditions to ensure that the adverse effects are minimal. The District
Engineer can also assert discretionary authority to require an
individual permit for any activity that may have more than minimal
adverse effects.
Discussion of Proposed Modifications to Existing Nationwide Permits
In response to comments received in reply to the December 13, 1996,
Federal Register notice, the Corps is proposing to modify NWPs 3, 7,
12, 14, 27, and 40. These modifications will increase the number of
activities authorized by these NWPs. The following is a discussion of
our reasons for modifying these NWPs.
3. Maintenance
The Corps has proposed several modifications to this permit, as
outlined in paragraphs (ii) and (iii) of the proposed permit. The Corps
experience with NWP 3 to date has been very good; navigable waters have
not been obstructed and adverse impacts to the aquatic environment are
very minor. Furthermore, in many cases, use of NWP 3 actually enhances
the aquatic environment. For example, replacing a damaged seawall often
eliminates chronic turbidity caused by erosion. In paragraph (i) of the
proposed modification, the Corps is retaining all of the original terms
and conditions of this NWP. The Corps is proposing to add two related
activities to this NWP: removal of accumulated sediments in the
vicinity of existing structures and restoration of upland areas damaged
by a storm, flood, or other discrete event.
Paragraph (ii) of the proposed modification will authorize the
removal of accumulated sediments from stream beds and other open water
areas in the vicinity of existing structures such as bridges and
culverted road crossings. This modification also authorizes the
placement of rip rap to protect the structure from scour. A new NWP to
authorize this work was recommended as a result of a workshop at the
1997 Biennial National Regulatory Program Conference. From May 1, 1997,
through December 31, 1997, NWP 26 was used 126 times to authorize the
maintenance and clean-out of stream beds. The Corps believes that it is
more appropriate to modify NWP 3 than to develop a new NWP for this
activity.
The accumulation of sediments in the vicinity of structures is
usually due to the structure's effects on sediment transport and flow
patterns in the waterbody. These sediment deposits affect the ability
of the structure to function effectively and may increase flooding in
the area. In addition, these deposits can create barriers to the
passage of fish and other aquatic organisms. Periodic removal of these
aggraded materials is required to restore stream flow conditions and
protect the integrity of the structure for the safety of the public.
Paragraph (ii) of the proposed modification of this NWP will be
used more often than NWP 26 to authorize removal of sediments from the
vicinity of structures because it is not limited to headwater streams
where the median flow on an annual basis is less than 5 cubic feet per
second. This activity will be authorized in all waters of the United
States. Paragraph (ii) limits the amount of excavated material to the
minimum necessary to restore the waterbody to its original dimensions
(e.g., depth and width), for a maximum distance of 200 feet upstream
and downstream from the structure. The amount of rip rap discharged for
scour protection must be the minimum necessary to protect the
structure. Excavated sediments must be deposited in an upland area,
unless otherwise authorized by the District Engineer, and contained to
prevent their reentry into the waterway. We are proposing to require a
PCN for all work performed under this paragraph.
We believe that removal of sediments from the vicinity of these
structures will have minimal adverse effects on the aquatic environment
provided the amount of material removed is the minimum necessary to
restore the stream to preconstruction dimensions (e.g., width and
depth). Such work may also provide environmental benefits by restoring
flow regimes and removing barriers to the movement of aquatic
organisms. Flooding in the vicinity of the structure may also be
reduced. The placement of rip rap for scour protection is also likely
to result in only minimal adverse effects, because only small amounts
of rip rap are typically needed to protect these structures. In those
areas inhabited by submerged aquatic vegetation or other important
aquatic organisms, the PCN requirement of this NWP will allow the
District Engineer the opportunity to assert discretionary authority
over the activity. In addition, regional or case-by-case special
conditions such as time-of-year restrictions can be placed on specific
activities or geographic areas.
[[Page 36057]]
This NWP will not authorize stream channelization or stream
relocation projects. Stream channelization or relocation may be
authorized by an individual permit, regional general permit, or other
NWP. Removal of sediments from the vicinity of an existing structure in
tidal waters may be authorized by an individual permit, regional
general permit, or other NWP, such as NWP 19.
The PCN requirement will allow the District Engineer to ensure that
the amount of sediment removed is the minimum necessary and consider
the use of discretionary authority when important ecological functions
are present or sensitive/unique areas may be adversely affected.
Districts may impose regional or case-by-case special conditions to
decrease the maximum distance to less than 200 linear feet upstream or
downstream of the structure. Compensatory mitigation will typically not
be required for work authorized by this NWP, since the work usually
involves removal of recently aggraded sediments and may provide
benefits for aquatic organisms by restoring flow regimes. Although a
few streams will have aggraded sediments inhabited by vegetation,
removal of these vegetated deposits will have minimal adverse effects
on the stream. In circumstances where sediment deposits have developed
extensive plant communities, such as in a braided stream, district
engineers may require compensatory mitigation or assert discretionary
authority to require an individual permit.
Paragraph (iii) of the proposed modification of NWP 3 will
authorize discharges of dredged or fill material for the purpose of
restoring uplands adjacent to waters of the United States where those
uplands have been damaged by discrete events such as floods or storms.
The purpose of this modification is to allow the reconstruction of
shorelines, river banks, and other lands adjacent to open water areas
to the extent and contours that existed prior to the damaging event.
For example, the high banks of a river may be subjected to damaging
flood flows, with the result that a substantial area of the bank
becomes undercut and collapses into the river. The use of this permit
would allow the discharge of fill material into the edge of the river
in the quantities needed to rebuild the river bank. The installation of
any bank stabilization measures needed to protect the restored area
could be authorized under a separate permit, such as NWP 13. In order
to qualify for this permit, the damage or loss of upland would have to
be traceable to a specific event that has occurred within the 12 months
prior to the District Engineer receiving notification of the proposed
work. This permit may not be used to reclaim lands that have been lost
due to long-term erosion processes, historic damage more than 12 months
old, or to restore lands where no substantial evidence of previous land
contours can be established. The determination of previous land
contours, and the extent of restoration allowed under this permit, is
the responsibility of the District Engineer. Proposals to reconfigure
and armor the rebuilt bank that the District Engineer has determined to
not qualify for this permit may be processed as an individual permit or
general permit.
The 12 month notification deadline has been proposed to allow the
Corps to establish that the damage has occurred recently, and to verify
that the purpose of the permit application is to repair any immediate
damage, and not to reclaim lands that may have existed in the past. For
example, a river may slowly change course over a period of many years,
with a corresponding evolution of the landscape. The meandering of a
river is a natural process, and this NWP would not be applicable if a
party wished to relocate the channel of the river to reconfigure a
piece of property into a more usable form, or to relocate the channel
to a historic configuration. Likewise, an old land survey of a property
adjacent to a lake may not be presented as evidence of justification
for use of this NWP, where the land in question was located in what is
now the open waters of the lake, and the land was lost to the lake
several years ago. The shorelines of lakes may change over time, and
the 12 month limit of this proposed permit is needed to ensure that
areas of open water are not reclaimed as dry land in a piecemeal
fashion based on historic surveys. The 12 month time period also seems
reasonable given that the affected parties would be interested in
quickly repairing any damage that has occurred to their property. This
permit does not require that the restoration be completed within 12
months; it only requires that the Corps be notified within 12 months of
the date of the damage. Any work authorized by this permit would have
to commence, or be under contract to commence, within 2 years of the
date of the damage.
The need for this NWP is justified by the desire of landowners to
quickly repair property damage, or to ensure that they will be able to
restore the land when resources become available. A landowner who has
suddenly been deprived of a valuable piece of property due to the
effects of a flood or storm may sustain a substantial economic loss if
he or she were unable to restore the damaged land quickly. The
availability of this NWP would in many cases allow the landowner to
repair the damage and minimize economic losses, without having to apply
for an individual permit, which would require more time to process.
Notification requirements and evidentiary conditions of this permit
should ensure that the work is limited to that needed to restore recent
damage, and should prevent the reclamation of historic lands.
This proposed modification to NWP 3 would also authorize minor
dredging to remove obstructions or sediments deposited by the flood or
storm. Dredging under paragraph (iii) of this NWP would be limited to a
total of 50 cubic yards, and would be restricted to the extent needed
to remove the obstruction. Any dredging requirements in excess of 50
cubic yards may be authorized by another general permit or an
individual permit. The dredging provision of this NWP may not be used
solely to provide a source of fill material needed for the restoration
of uplands, nor may it be used to artificially deepen a waterbody,
channelize a stream, or be used in place of a maintenance dredging
operation.
It is anticipated that this NWP would only result in minimal
impacts to the aquatic environment, since the areas that would be
rebuilt were not waters of the United States prior to the damaging
event, and the restoration of such lands should not result in a loss of
aquatic habitat. Indeed, the actual restoration of the upland itself
does not require a permit, because it is exempt under Section 404(f).
The determination of the extent of waters of the United States should
consider the contours of the affected upland area prior to the damaging
event, and should not be based upon the current damaged condition of
the property (i.e., the damaged area does not immediately become a
water of the United States). As explained above, the applicant must
provide evidence of the previous contours of the damaged land in order
to qualify for this permit.
No upper acreage limit has been proposed for this activity, and
mitigation will typically not be required for the work, since the
restoration of uplands should not result in a loss of waters of the
United States. While there is no upper limit, it is anticipated that
most permittees would seek to restore small areas, such as the frontage
of individual lots adjacent to streams or lakes in developed areas. The
notification requirement would allow the Corps to alert other Federal
and
[[Page 36058]]
State agencies, as necessary, such as State flood plain regulatory
agencies. In addition, The Corps believes that the potential impacts
from the removal of accumulated sediments near existing structures will
be minimal. However, if these areas are inhabited by submerged aquatic
vegetation or other important aquatic organisms, the PCN requirement of
this NWP will allow the District Engineer the opportunity to assert
discretionary authority over the activity. In addition, regional or
case-by-case special conditions such as time-of-year restrictions can
be placed on specific activities or geographic areas.
The Corps would only authorize those upland restoration projects
that would be constructed in such a way as to result in no more than
minimal impacts to the aquatic environment. Furthermore, this NWP would
restrict the upland restoration to the extent that existed prior to the
damage; however, the Corps would not require the applicant to make such
full upland restoration. For example, should the applicant propose to
restore only a part of the damaged upland, or to restore part of the
damaged area in a way more beneficial to the aquatic environment, such
as a wetland restoration, the Corps will usually agree to the plan. Any
proposals to restore only a part of the damaged upland must originate
with the applicant, and will not be required by the Corps.
The restoration of wetland areas and riparian zones damaged by
storms may not be authorized with this NWP, however, these activities
may be authorized by NWP 27. With regard to the use of this proposed
permit with other NWPs (i.e., ``stacking''), the Corps would not allow
the use of this permit in combination with NWP 18 or NWP 19. The Corps
is soliciting comments on the requirements and methods needed to
demonstrate the prior extent of the uplands to be restored, the
practicability of the proposed 50 cubic yard dredging limit, the 12
month time limit for notification to the Corps, the 2 year time limit
established for the work to commence.
7. Outfall Structures and Maintenance
A commenter recommended modification of NWP 35 to authorize
maintenance dredging activities at utility facilities for three types
of areas: barge canals and slips, dam headworks at hydropower plants,
and intake and outfall structures and canals. Most of these activities
require individual permits because they occur in navigable waters of
the United States or below headwater streams. Currently, NWP 35
authorizes maintenance dredging of marina basins, boat slips, and
access channels to marinas and boat slips.
The removal of debris from the headworks of hydroelectric dams does
not require a Section 10 permit because it does not constitute work in
navigable waters of the United States. A Section 404 permit is not
required for this activity as long as there is no associated discharge
of dredged or fill material. In these situations, most debris is
removed with equipment or specially designed vessels that do not cause
discharges of dredged or fill material into waters of the United
States. Therefore, we are not proposing an NWP for this activity.
Another commenter requested that the terms and limitations of NWP
31 be expanded to include maintenance of intakes to water supply
facilities.
The Corps is proposing to modify NWP 7 to authorize the removal of
accumulated sediments from outfalls, intakes, and associated canals.
All of the original terms and limitations of NWP 7 are retained in the
proposed modification. Outfalls, intakes, and associated canals
accumulate sediment and require periodic excavation or maintenance
dredging to restore flow capacities to the facility. Most of the
dredging is required in the vicinity of intake structures and their
canals because circulation patterns result in the deposition of
sediments in these areas. These sediments must be removed to ensure
that the facility has an adequate supply of water for its operations.
Water discharged from outfall structures usually has little or no
sediment load; maintenance dredging is not often required in these
areas. In situations where an utility company's intake or outfall canal
is used by barges to travel to the utility facility, the proposed
modification will allow continued access by those barges because the
removal of accumulated sediments will return the intake or outfall
canal to its designed dimensions, and restore its navigable capacity.
Currently, utility companies must obtain individual permits for this
work, since the amount of dredged material usually exceeds the
limitation of 25 cubic yards specified in NWP 19. This NWP authorizes
the removal of accumulated sediment from intake and outfall structures
in small impoundments, such as water treatment facilities, irrigation
ponds, and farm ponds. This NWP will not authorize the construction of
new canals or the removal of sediments from the headworks of large
dams, flood control facilities, or large reservoirs. These types of
work may be authorized by individual permits, regional general permits,
or other NWPs, such as NWPs 19 or 31.
A PCN will be required so that Corps districts can review these
activities on a case-by-case basis to ensure that the adverse effects
are minimal. The amount of sediment dredged or excavated must be the
minimum necessary to restore the facility to original design capacities
and configurations.
The Corps believes that the potential impacts from the removal of
accumulated sediments from intake and outfall structures and associated
canals will be minimal. If the canals are inhabited by submerged
aquatic vegetation or other important aquatic organisms, the PCN
requirement of this NWP will allow district engineers the opportunity
to assert discretionary authority. In addition, regional or case-by-
case special conditions such as time-of-year restrictions can be placed
on specific activities or geographic areas.
12. Utility Activities
In response to the December 13, 1996, Federal Register notice, the
Corps received several comments requesting development of NWPs for
activities associated with utility lines, such as the construction of
electric and pumping substations, foundations for electric power line
towers, and permanent access roads. NWP 26 has been used to authorize
these activities in the past. From May 1, 1997, through December 31,
1997, there were 34 utility-related activities authorized by NWP 26.
Since the commenters were proposing activities directly related to
utility lines, we believe it is more appropriate to modify NWP 12 to
authorize these activities, instead of developing separate NWPs for
each type of activity.
One commenter proposed an NWP that would authorize the installation
and maintenance of overhead electric transmission lines and associated
facilities, such as substations and permanent access roads. NWPs 26 and
33 have been used to construct access roads associated with utility
lines, but NWP 33 authorizes only temporary access roads. Permanent
access roads are necessary for routine and emergency maintenance of
overhead electric transmission lines. NWP 26 has also been used to
authorize the construction of foundations for transmission towers and
poles. Another commenter has used NWP 26 to build electric substations
and construct access roads for electric power transmission lines, and
recommended either issuance of a new NWP or modification of NWP 12 to
authorize these activities. The commenter stated that NWPs 14 and 33
typically cannot be used to authorize
[[Page 36059]]
the construction of permanent access roads for utility lines, because
of the acreage limitations of NWP 14 and the fact that NWP 33
authorizes temporary, not permanent, access roads.
A commenter recommended including electric utility activities in
the NWP program, similar to the utility activities presently authorized
by the Florida Department of Environmental Protection and regional
water management districts in the State of Florida.
Currently, NWP 12 authorizes only utility line backfill and bedding
activities. All of the original terms and limitations of NWP 12 have
been retained, with some clarification, in the proposed modification.
The proposed modification of NWP 12 will include the following
activities commonly associated with utility lines: electric and pumping
substations, foundations for electric utility line towers, and
permanent access roads. Modifying NWP 12 to expand coverage of the
installation and maintenance of utility lines and attendant features is
a more effective means of authorizing these activities than developing
several new NWPs. It will streamline the authorization process for
utility line activities that have minimal adverse effects on the
environment.
Paragraph (i) of the proposed modification authorizes the same
activities as the NWP 12 published in the December 13, 1996, Federal
Register notice. In the proposed modification, we are including
clarification of the circumstances where a pipeline carrying gaseous or
liquid substances over navigable waters of the United States requires a
permit from the United States Coast Guard pursuant to Section 9 of the
Rivers and Harbors Act. We are also proposing to include language in
this paragraph that states that repair of utility lines is authorized
by this NWP. The impacts due to repair are often less than those of
installation, because in most cases only certain sections of a utility
line require repair, and these areas are restored upon completion of
the work.
Paragraph (ii) authorizes discharges associated with the
construction or expansion of electric or pumping substations, provided
the discharge does not cause the loss of more than 1 acre of non-
Section 10 waters of the United States (wetlands that are contiguous to
Section 10 waters are also excluded). The Corps is proposing to require
a PCN if the construction or expansion of the substation will cause the
loss of more than \1/3\ acre of waters of the United States.
Paragraph (iii) authorizes discharges for foundations of utility
line towers, poles, and anchors. To minimize adverse effects, separate
foundations for each tower leg will be required, when practicable, and
the foundations must be the minimum size necessary. In most cases, the
construction of foundations for overhead utility lines will have
minimal adverse effects on the aquatic environment because these
utility lines are constructed in a cleared right-of-way (which will
remain as a wetland) and the foundations will permanently affect only a
small proportion of the cleared wetland area. In the right-of-way, most
of the vegetation will be allowed to grow back as either emergent or
scrub-shrub wetland.
Paragraph (iv) would authorize discharges for the construction and
maintenance of permanent access roads, which would be used to maintain
the utility line, especially in emergency situations. Access roads used
only for construction can be authorized by NWP 33, but restoration of
waters of the United States is required after completion of the work.
We expect that most access roads used for maintenance will be the same
as the access roads used for construction. Access roads must be the
minimum width necessary, be designed to minimize the amount of waters
of the United States adversely affected by the roads, and cannot
restrict surface and subsurface flows. We are proposing a maximum
acreage loss limitation of 1 acre of waters of the United States.
Access roads must follow preconstruction contours and elevations to the
extent practicable. The Corps is proposing to require notification
where more than 500 linear feet of access road is constructed above
preconstruction grades in waters of the United States. Corduroy or
geotextile/gravel access roads constructed at grade are likely to be
the most common access roads constructed. We anticipate that most of
these access roads would be 10 to 15 feet wide. We believe that
permanent access roads are necessary because they allow efficient
emergency maintenance of utility lines. Temporary access roads become
overgrown with vegetation, delaying access for emergency repairs. Such
delays endanger citizens serviced by the utility line. With proper
construction techniques, access roads can be constructed and maintained
with minimal adverse effects on the aquatic environment. Surface water
flows will not be substantially affected by access roads constructed
at-grade. Some components of access roads will have to be constructed
above grade, particularly to construct culverted stream crossings. Such
crossings will have minimal adverse effects, provided the culverts are
adequately sized.
In the proposed modification of NWP 12, we are including the
definition of ``loss'' of waters of the United States as defined in
other NWPs. The installation of subaqueous utility lines in waters of
the United States should not be considered as resulting in a loss of
waters of the United States if the area impacted by the installation of
the utility line is the minimum necessary and preconstruction contours
and elevations are restored after construction. The use of timber mats
in utility line construction results in temporary impacts to waters of
the United States, and typically reduce impacts to wetlands caused by
heavy equipment. Therefore, the use of timber mats should not be
included as a source of permanent loss when determining impacts to
waters of the United States, provided they are removed upon completion
of construction. Once the timber mats are removed, wetland conditions
typically return within a short time period.
We are also including language in the proposed modification of NWP
12 to clarify that the installation of utility lines in navigable
waters of the United States without any associated discharge of dredged
or fill material (i.e., Section 10 of the Rivers and Harbors Act is the
only applicable law) is authorized by this NWP. All of the original
notification provisions of NWP 12 will remain the same, with additional
notification provisions for discharges for electric or pumping
substations that result in the loss of more than \1/3\ acre of non-
tidal waters of the United States and for permanent access roads
constructed in waters of the United States above preconstruction grades
for a distance of more than 500 feet. We are revising item ``c'' in the
notification section to clarify that the exclusion of overhead utility
lines that are constructed for a distance of more than 500 linear feet
in waters of the United States from the notification requirement.
This NWP does not authorize the construction of new power plants,
water treatment plants, or reservoirs. Discharges in Section 10 waters
for the construction of electric or pumping substations or access roads
is not authorized. Pipelines used to transport gases and liquids over
navigable waters of the United States require a Section 9 permit from
the United States Coast Guard and are not authorized by this NWP.
Division and district engineers will still be allowed the use of
discretionary authority when very
[[Page 36060]]
sensitive/unique areas may be adversely affected by these activities.
14. Linear Transportation Crossings
One commenter recommended an NWP to authorize the construction,
extension, and expansion of railroad tracks, including railroad beds.
NWP 26 has been often used to authorize this type of work. Another
commenter recommended an NWP to authorize minor road improvements and
maintenance projects and the placement of drainage structures in
headwater streams.
The Corps is proposing to modify NWP 14 to authorize discharges of
dredged and fill material into non-tidal waters of the United States,
excluding non-tidal wetlands contiguous to tidal waters, for the
construction, expansion, and improvement of public linear
transportation crossings for public projects such as roads, railroads
and runways. For private linear transportation crossings and for public
linear transportation crossings in tidal waters or non-tidal wetlands
contiguous to tidal waters, such as a controlled-access road to an
industrial site, or the construction of a private road leading to a
residence, the original terms and limitations of NWP 14 will be
retained.
The Corps is proposing two options for the acreage limit for public
linear transportation crossings in paragraph (a). We are requesting
comments on whether the acreage limit for public linear transportation
crossing should be 1 acre or 2 acres. For public linear transportation
crossings, notification will be required for discharges in special
aquatic sites, including wetlands, or for all discharges that result in
the loss of greater than \1/3\ acre of waters of the United States. For
private road crossings, the discharge cannot result in the loss of more
than \1/3\ acre of waters of the United States, or extend for a
distance of more than 200 feet in waters of the United States.
Notification will be required for all discharges in special aquatic
sites, including wetlands, for private road crossings. Between May 1,
1997, and December 31, 1997, NWP 26 was used to authorize 953
transportation projects. These transportation projects resulted in the
loss of approximately 278 acres of wetlands, and 56,442 linear feet of
stream bed, with 1,036 acres of compensatory mitigation provided by
permittees.
Features of the proposed work that are integral to the linear
transportation project, such as interchanges, stormwater detention
basins, rail spurs or water quality enhancement measures, may also be
authorized by this permit. This proposed permit may not be used to
authorize non-linear features commonly associated with transportation
projects, such as vehicle maintenance or storage buildings, parking
lots, train stations, or hangars.
For large transportation projects that would have many potential
crossings of jurisdictional areas, the Corps districts will determine
on a case-by-case basis whether this permit may be used, or whether an
individual permit may be required for the work. Corps districts may
also exercise discretionary authority over any project that, in the
determination of the District Engineer, has the potential to result in
more than minimal impact on the aquatic environment. The definition of
the term ``single and complete project'' for linear projects can be
found at 33 CFR 330.2(i).
The Corps is soliciting comments on several issues related to this
proposed permit, including the acreage limit, and the prohibition of
the use of this permit for non-linear features associated with
transportation projects.
27. Stream and Wetland Restoration Activities
The Corps is proposing to modify NWP 27 to add the restoration and
enhancement of streams to the wetland and riparian enhancement
authorized by the existing NWP 27. The modified permit would authorize
projects that would enhance, restore or create structural habitat
features, hydraulics, and vegetation in altered and/or degraded non-
Section 10 streams and non-tidal wetlands. Such activities include, but
are not limited to: the removal of accumulated sediments, the
installation, removal and maintenance of water control structures, the
installation of current deflectors, the enhancement, restoration or
creation of riffle and pool stream structure, the placement of in-
stream habitat structures, modifications of the stream bed and/or banks
to restore or create stream meanders, the backfilling of artificial
channels and drainage ditches, the removal of existing drainage
practices and structures, the construction of small nesting islands,
the construction of open water areas, and activities needed to re-
establish vegetation, including plowing or discing for seed bed
preparation and mechanized land-clearing to remove undesirable
vegetation. This NWP applies to projects that would serve the purpose
of restoring and enhancing ``natural'' stream hydrology, wetland
hydrology, vegetation, and function in altered and degraded non-Section
10 streams and associated riparian areas, and non-tidal wetlands.
This NWP cannot be used to authorize activities for the conversion
of natural wetlands or streams to another aquatic use, such as the
impoundment of a stream for waterfowl habitat, or the conversion of a
scrub-shrub wetland into an herbaceous emergent wetland. However, this
permit may be used to authorize the construction of projects that would
recreate similar habitat types in a different location than the
existing wetlands, provided that the project results in functional
gains. For example, a berm may be proposed to enhance and enlarge an
existing wetland, however, the impoundment of water behind the berm
would replace an existing emergent wetland area with open water, and
recreate a similar emergent wetland at another location within the
larger wetland. This project may be authorized by NWP 27, because it
would not result in a conversion of one wetland type to a dissimilar
wetland type.
No activities or discharges not directly related to the restoration
of ecological values or aquatic functions may be authorized by this
permit.
The intent of this permit is to facilitate the restoration of
degraded or altered streams and wetlands. The goals of the proposed
activities must be based upon the enhancement, restoration or creation
of the characteristic ecological conditions that existed, or may have
existed, in the stream or wetland prior to disturbance, or to other
wise improve the aquatic functions of such areas. The activities may
include, but are not limited to, the modification of the hydraulics,
vegetation, or physical structure of the altered or degraded stream or
wetland. Notification to the District Engineer would be required only
for those projects noted in condition (iv) of the permit.
The use of this proposed permit with other NWPs would require
notification to the District Engineer in accordance with General
Condition 15. Use of this NWP with other NWPs may not be restricted,
provided there is a net gain of aquatic habitat and/or aquatic
functions. For example, it is likely that some projects considered
under this permit would require cofferdams to temporarily dewater the
project site, or interim bank stabilization measures during
construction of channel improvements. Because neither of these
discharges are, in and of themselves, directly related to the
restoration of aquatic habitat, they would require separate
authorizations, in these cases NWP 33 and NWP 13, respectively. Given
the nature of the activities that may be proposed for each project
site, the Corps will make a case-by-case determination on the need for
other
[[Page 36061]]
authorizations during the review of the project.
For activities that require notification, the Corps, with input
from other Federal and State agencies, would evaluate each project to
determine whether the proposed work would result in a net increase in
aquatic functions. Factors such as temporal habitat loss, changes in
species composition, and other aquatic functions would be examined in
the course of the evaluation. This permit cannot be used to relocate an
altered or degraded stream, where the new stream would have
characteristics similar to the old stream (i.e., substantial habitat
improvement would not result from the work). In another example, this
permit would not be applicable to a project that proposed to remove
sediment from a stream for the purpose of improving or creating a
navigation channel, because the primary purpose of the work would not
be the improvement of aquatic functions, although in some cases, some
habitat benefits could result from the work. Similarly, this permit may
not be used to channelize, deepen or modify a stream in order to
facilitate land drainage.
The Corps is soliciting comments on the types of activities that
may be authorized under this proposed permit, and whether any
additional conditions (e.g., restricting the construction of the
projects to certain types of streams) should be placed upon its use.
The Corps anticipates that the majority of projects authorized by this
permit would involve habitat improvements on small lengths of streams
or in small wetland areas; however, there is no restriction on the
scope of the projects that can be authorized with this permit. The
Corps anticipates that this permit will be used primarily by units of
State and local government, private ecological restoration groups and
individual landowners.
40. Agricultural Activities
The Corps is proposing to modify NWP 40 to authorize the discharge
of dredged or fill material into non-tidal waters of the United States,
including non-tidal wetlands, for the purpose of improving production
on existing agricultural lands. Between May 1, 1997, and December 31,
1997, NWP 26 was used to authorize 317 agricultural projects. These
projects resulted in the loss of approximately 85 acres of wetlands and
20,860 linear feet of stream bed, with 151 acres of compensatory
mitigation provided by the permittees. The proposed modification to NWP
40 may be used to authorize, in addition to the construction of
foundations and building pads for farm buildings currently authorized
by NWP 40, the installation or placement of drainage tiles;
construction of drainage ditches or levees; mechanized land clearing,
land leveling, and similar activities.
Paragraph (a) of the proposed modification of NWP 40 authorizes
discharges into waters of the United States, provided the permittee has
obtained a minimal effect exemption from NRCS and the activity does not
cause the loss of greater than 1 acre of non-tidal wetlands and does
not cause the loss of greater than \1/3\ acre of playas, prairie
potholes, and vernal pools. The minimal effect exemption must be
obtained in accordance with the provisions of the Food Security Act (16
U.S.C. 3801 et seq.) and the National Food Security Act Manual(NFSAM).
Paragraph (b) of the proposed modification authorizes discharges of
dredged or fill material into non-tidal wetlands on agricultural lands
provided the discharge results in a loss of no greater than 3 acres of
non-tidal wetlands and the permittee submits and implements a
compensatory mitigation plan that fully offsets the wetlands loss. The
Corps is considering options for the type of wetlands that should be
applicable to this activity and is seeking comments on whether this
proposed modification should be for all non-tidal wetlands, farmed
wetlands only, or frequently cropped wetlands only. Farmed wetlands and
frequently cropped wetlands are those wetlands which are already being
manipulated to some extent for agricultural production. Non-tidal
wetlands include farmed wetlands and frequently cropped wetlands in
addition to those natural wetland areas on agricultural land that have
not been previously manipulated for agricultural production.
The Corps is also considering and seeking comments on options to
establish acreage limits for these activities. One option would be to
establish a sliding scale or indexing of impact acreage limits for this
NWP, based on farm size. Another option is using a simple upper impact
acreage limit (e.g., 3 acres). A sliding scale could be based on the
size of a farm, percentage of wetlands, percentage of farm, or other
approaches. The following table is a sample sliding scale or indexing
of impact acreage limits for this NWP, based on farm size:
------------------------------------------------------------------------
Maximum
acreage loss
authorized
Farm Size for wetlands
on
agricultural
lands
------------------------------------------------------------------------
Less than 15 acres........................................ \1/4\ acre.
15-25 acres............................................... \1/2\ acre.
25-50 acres............................................... \3/4\ acre.
50-100 acres.............................................. 1 acre.
100-500 acres............................................. 2 acres.
Greater than 500 acres.................................... 3 acres.
------------------------------------------------------------------------
NRCS must approve the mitigation plan if the permittee is a USDA
program participant or non-participant receiving technical assistance.
If the permittee is a USDA non-participant and has not had NRCS approve
a mitigation plan, the Corps must approve the mitigation plan.
Discharges into natural playas, prairie potholes, or vernal pools are
not authorized under the terms of this paragraph.
Paragraph (c) of the proposed modification to NWP 40 authorizes
discharges into naturally vegetated playas, prairie potholes, or vernal
pools, provided the discharge does not result in the loss of greater
than 1 acre of non-tidal wetlands. The Corps is also considering and
seeking comments on options to establish acreage limits for these
activities. One option would be to establish a sliding scale or
indexing of impact acreage limits for this NWP, based on farm size.
Another option is using a simple upper impact acreage limit (e.g., 1
acre). A sliding scale could be based on size of farm, percentage of
wetlands, percentage of farm, or other approaches. The following table
is a sample sliding scale or indexing of impact acreage limits for this
NWP, based on farm size:
------------------------------------------------------------------------
Maximum
acreage
loss
authorized
Farm size for playas,
prairie
potholes,
and vernal
pools
------------------------------------------------------------------------
Less than 25 acres......................................... \1/4\ acre.
25--100 acres.............................................. \1/2\ acre.
100--500 acres............................................. \3/4\ acre.
Greater than 500 acres..................................... 1 acre.
------------------------------------------------------------------------
The permittee must submit an NRCS- or Corps-approved compensatory
mitigation plan to fully offset wetland losses. The compensatory
mitigation plan must be approved by NRCS if the permittee is a USDA
program participant or non-participant receiving technical assistance.
The Corps must approve the mitigation plan if the permittee is not a
USDA program
[[Page 36062]]
participant and has not had NRCS approve a mitigation plan.
Paragraph (d) of the proposed modification contains the original
terms of NWP 40. The acreage limit for this paragraph is 1 acre of non-
tidal wetlands in agricultural production prior to December 23, 1985.
This NWP does not authorize discharges into playas, prairie potholes,
and vernal pools for the construction of building pads or foundations
for farm buildings.
In paragraph (e), the Corps is also proposing to modify NWP 40 to
authorize the relocation of existing serviceable drainage ditches and
previously substantially manipulated intermittent and small perennial
streams on agricultural land. However, the relocation of ditches and
streams authorized by this NWP does not authorize reconfiguration of
those ditches or streams to increase the area drained by the ditch or
stream (i.e., by widening or deepening the ditch/stream beyond its
original design dimensions or configuration). This NWP does not
authorize work in streams other than described above.
The Corps is proposing to require notification for activities that
result in: (1) the loss of greater than \1/3\ acre of non-tidal waters
of the United States, including playas, prairie potholes, or vernal
pools, or (2) filling or excavating greater than 500 linear feet of
drainage ditches and previously substantially modified intermittent and
small perennial streams. The appropriate Federal and State agencies
will be notified for the loss of greater than 1 acre of non-tidal
wetlands.
The aggregate acreage limit for wetland impacts authorized by this
NWP as a result of the activities in paragraphs (a), (b), (c), and (d)
cannot exceed 3 acres per farm for the duration of this nationwide
permit (i.e., until reissuance or any revocation). NWPs are generally
reissued every five years. When NWPs are reissued they may be used
again on the same farm to authorize activities for impacts not to
exceed the acreage thresholds authorized in the reissuance. In
addition, for the purposes of increasing agricultural production, this
NWP cannot be used with other NWPs to exceed this 3-acre limit. The use
of this NWP prohibits any future use of proposed NWP A, whether by the
farm owner/operator or if the property is sold. For the purposes of
this NWP a single and complete project is defined as a ``farm'' (i.e.,
the land unit under one ownership, which is operated as a farm, as
reported to the Internal Revenue Service). We are considering options
for and requesting comments on alternative suggestions for this
definition of a single and complete project (such as ``farm tract'' or
``field''). The boundary determination of the single and complete
project as defined for this NWP will be as determined as of the
effective date of the publication of this Federal Register notice.
The notification will allow district engineers to review proposed
activities to ensure that no more than minimal adverse effects to
aquatic resources will occur. District engineers can require special
conditions on a case-by-case basis to ensure that the impacts are
minimal. District engineers can exercise discretionary authority and
require an individual permit for those activities that may have more
than minimal adverse effects on the aquatic environment.
Other Suggested NWPs
In response to the December 13, 1996, Federal Register notice,
several commenters recommended replacement NWPs for activities which we
believe do not warrant the development of a NWP. Some of these
activities are in areas that are not considered to be waters of the
United States. Other activities are exempt from permit requirements of
Section 404 of the Clean Water Act and Section 10 of the Rivers and
Harbors Act. These comments are addressed below.
Maintenance of Landfill Surfaces: One commenter proposed an NWP
authorizing the maintenance of landfill surfaces. The Resource
Conservation and Recovery Act (RCRA) requires the use of clay material
to cap municipal solid waste landfills, and grading of such areas
sufficient to prevent water from ponding on the cap. As refuse in a
landfill decomposes and settles, portions of the clay cap can subside,
creating ponded areas on the landfill surface. Wetland species may
colonize these ponded areas. These depressions increase the chance that
water may infiltrate through the clay cap and come into contact with
the refuse, which may result in increased pollution of the air and
groundwater. To comply with the RCRA, Clean Air Act, and Clean Water
Act, these depressions must be filled to return the landfill cap to the
designed grade and prevent infiltration of water into the landfill. The
regular maintenance of landfill caps prevents leaching of contaminants
into the surrounding air, water, and soil.
The Corps believes that these ponded areas on the landfill cap are
not waters of the United States, because landfill caps are constructed
from uplands and require continuous maintenance. The preamble to 33 CFR
Part 328 in the November 13, 1986, Federal Register (51 FR 41217,
Section 328.3) states that ``water filled depressions created in dry
land incidental to construction activity * * *'' are not considered
waters of the United States ``* * * until the construction or
excavation operation is abandoned and the resulting body of water meets
the definition of waters of the United States.'' The landfill is not
abandoned because of the routine maintenance required by law to keep
the landfill surface at the designed grade. Since routine maintenance
of landfill surfaces does not require a Section 404 permit, we will not
be developing an NWP for this activity.
Maintenance and Filling of Ditches Adjacent to Roads and Railways:
One commenter proposed an NWP to authorize maintenance of roadside
ditches constructed in tidal and non-tidal waters of the United States
to collect and convey runoff from the road. Another commenter proposed
an NWP to authorize discharges of dredged or fill material to construct
additional railroad tracks, widen or protect railroad beds, and drain
water to prevent saturation of the railroad bed. Saturation of the
railroad bed can cause settling of the bed, requiring maintenance or
reconstruction to return the railroad bed to the proper grade. Flat-
bottom ditches are constructed at the toe of the railroad embankment
(often in upland areas) to convey runoff from the railway to natural
drainage courses. Roadside and railway ditches commonly develop wetland
characteristics as a result of fulfilling their purpose and must be
periodically cleaned out. At other times, these drainage ditches may be
filled to widen the road or railroad bed. Work in roadside or railroad
ditches may or may not require a permit from the Corps, depending on
the case-specific circumstances of the ditch.
The maintenance of roadside or railroad drainage ditches
constructed in uplands does not require a Section 404 permit since
these ditches are not waters of the United States, even though they may
support wetland vegetation. The preamble to 33 CFR 328.3, as published
in the November 13, 1986, issue of the Federal Register (51 FR 41217),
states that ``non-tidal drainage or irrigation ditches excavated on dry
land'' are generally not considered to be waters of the United States.
Filling these ditches to widen the road or railroad bed does not
require a Section 404 permit.
If these roadside or railroad ditches are constructed in waters of
the United States, the maintenance of these ditches is exempt from
Section 404 permit requirements (see 33 CFR 323.4(a)(3)),
[[Page 36063]]
provided the ditch is restored to its original dimensions and
configuration. However, the construction of these ditches in waters of
the United States requires a Section 404 permit and may be authorized
by an individual permit, an NWP or a regional general permit. A Corps
permit is required to widen the road or railroad bed in these ditches
constructed in waters of the United States, if the activity results in
a discharge of dredged or fill material into waters of the United
States or the activity extends into navigable waters of the United
States. We are proposing to modify NWP 14 to authorize such activities,
and other linear transportation activities, in non-tidal waters of the
United States (wetlands that are contiguous to tidal areas are also
excluded). Widening road or railroad beds in tidal waters usually
requires an individual permit, but may be authorized by an NWP, or an
applicable regional general permit. The construction or maintenance of
roadside and railroad ditches in navigable waters of the United States
requires a Section 10 permit. Furthermore, the maintenance of roadside
ditches where the proposal includes reconfiguration of these ditches
does not qualify for the exemption at 33 CFR 323.4(a)(3). However, we
have proposed NWP F in order to address this situation, provided the
drainage capacity of the ditch is not increased.
Maintenance of Water Treatment Facilities: One commenter requested
an activity-specific NWP for maintenance of water treatment facilities,
such as the removal of material from constructed settling lagoons and
associated constructed wetlands, maintenance and de-watering of stock
ponds for livestock, and maintenance of recharge ponds for water
supplies.
Water treatment facilities constructed in uplands do not require a
Section 404 permit for maintenance activities. The Corps does not
generally consider ``[a]rtificial lakes or ponds created by excavating
and/or diking dry land to collect and retain water and which are used
exclusively for such purposes as stock watering, irrigation, settling
basins, or rice growing'' to be waters of the United States. (Refer to
the preamble to 33 CFR 328.3, as published in the November 13, 1986,
issue of the Federal Register (51 FR 41217)).
To address some other issues relevant to water quality, we are
proposing NWP C for the construction and maintenance of stormwater
management facilities, modifying NWP 3 to authorize the removal of
sediments that accumulate in the vicinity of structures, and modifying
NWP 7 to authorize removal of accumulated sediments from outfall and
intake structures and associated canals. Removal of sediments from
detention and settling basins constructed with a Section 404 permit
would be authorized by the proposed NWP C as long as the maintenance
activity does not change the use of the facility. In addition, some of
the activities cited above are covered by existing NWPs, are exempt
from Clean Water Act regulation, or do not require a Corps permit.
Construction of stock ponds is an exempt activity; thus, the de-
watering and maintenance of stock ponds is exempt from 404 Section
permit requirements as long as the activity is for water quality
benefits and does not enlarge the pond or change the use to other than
providing water for livestock. Maintenance of recharge ponds
constructed in uplands does not require a Section 404 permit, but the
maintenance of these ponds constructed in waters of the United States
may be authorized by existing NWPs, such as NWPs 3, 18, or 13, or
proposed NWP C. Therefore, these activities have not been specifically
included in the proposed NWPs.
Mitigation Banks and the NWP Program. One commenter recommended
that the replacement NWPs should include language that identifies
mitigation banks as the preferred method of providing compensatory
mitigation for impacts authorized by these NWPs. The commenter believes
that placing such an emphasis on mitigation banking will provide
incentive for the construction of more mitigation banks by increasing
the certainty that these banks will be used by permittees to offset
losses authorized by these NWPs. This commenter also recommended that
the NWP program formally adopt the ``Federal Guidance for the
Establishment, Use, and Operation of Mitigation Banks'' (60 FR 58605-
58614). The commenter also recommended the development and
implementation of standard policies pertaining to the establishment and
use of in lieu fee programs that matches the federal mitigation bank
guidance. The commenter believes such guidance is needed to monitor the
funds paid by permittees, monitor the number of acres of wetlands
restored as a result of payment of those fees, provide compensatory
mitigation in advance of authorized impacts, and require binding
agreements that will ensure that the compensatory mitigation is
successful.
The Corps disagrees that the proposed replacement NWPs should
stipulate preference for mitigation banks as a form of compensatory
mitigation. In the December 13, 1996, Federal Register notice, the
Corps did not direct districts to require permittees to use mitigation
banks for offsetting wetland losses due to NWP 26, but suggested that
they could be used, as could in lieu fee programs and individual
mitigation projects, to provide compensatory mitigation. Consolidated
mitigation methods (mitigation banks, in-lieu fees) are often an
efficient means of compensating for impacts, and may confer benefits to
the aquatic environment as well (see 61 FR 65892). We recognize that
consolidated mitigation projects, such as mitigation banks and in lieu
fee programs, are more practicable and successful because of the
planning and implementation efforts typically expended on these
projects by their proponents. In contrast, many individual efforts to
create, restore, or enhance wetlands to replace small wetland impacts
are often not successful and do not provide many benefits to the
aquatic environment, partly because they are not well planned or
executed. In addition, numerous small compensatory mitigation efforts
can be expensive and time-consuming to monitor.
Mitigation banks and in lieu fee programs are not common throughout
the country. Therefore, it would be impractical to require their use as
a preferred or sole means of providing compensatory mitigation for
impacts authorized by the proposed replacement NWPs. While in lieu fee
programs are in place in several districts, efforts continue to ensure
in lieu fee programs will provide adequate compensatory mitigation.
District engineers have the authority to approve the means by which a
particular permittee provides appropriate compensatory mitigation.
Permittees should not be required to use a particular mitigation
method, just because it is available. Permittees must have the
flexibility to propose compensatory mitigation methods that are within
their means to accomplish. To the extent appropriate, permittees should
consider use of approved mitigation banks and other forms of mitigation
including in lieu fees. District engineers will evaluate the
permittee's proposed mitigation for its appropriateness and
practicability as indicated in the NWP mitigation condition.
Expansion of Nationwide Permit 31. A commenter requested that NWP
31 be expanded to authorize other maintenance activities relating to
flood control and maintenance of water supply facilities, including
removing sediment from natural stream channels without enlarging the
channel, removing vegetation from streams that increases aggradation of
the stream bed,
[[Page 36064]]
stabilizing banks, removing aggraded sediments, and cleaning sediment
from intake pipes that draw water from the stream or groundwater. The
commenter stated that some of these activities did not require a
Section 404 permit prior to the implementation of the excavation rule
and are not authorized by NWP 31 or 33 CFR 330.3.
NWP 31 authorizes discharges of dredged or fill material for the
maintenance of existing flood control facilities that were either
previously authorized by a Corps permit or 33 CFR 330.3 or constructed
by the Corps and transferred to a local sponsor for operation and
maintenance. In natural stream channels, most of the activities cited
in the previous paragraph can be authorized by NWP 31 provided those
channels are part of an authorized flood control facility. One
requirement of NWP 31 is that the District Engineer establish a
baseline for maintenance. The maintenance baseline can include width at
ordinary high water, channel depth, and/or other parameters used to
quantify dimensions of a stream channel. For example, the maintenance
baseline for a stream channel may a particular bed elevation. When
sediments accumulate in the stream channel, raising the elevation of
the bed, NWP 31 may be used to authorize the removal of the aggraded
sediments to return the stream bed to the maintenance baseline
elevation, even if the sediment supports wetland vegetation. Bank
stabilization work for portions of the flood control project may be
authorized by NWP 13, regional general permits, or an individual
permit. The removal of sediment from water intake pipes cannot be
authorized by NWP 31. However, removal of sediments from the vicinity
of these structures may be authorized by NWP 18, the proposed
modifications to NWP 3, the proposed modification to NWP 7, regional
general permits, or individual permits.
Discussion of Nationwide Permit Conditions
General Conditions
The Corps is proposing to consolidate all of the General Conditions
and Section 404 Only conditions into one General Condition Section for
the NWPs. The reason for this consolidation is that most of the Section
404 Only conditions have applicability to activities in Section 10
waters. Some of the Section 404 Only conditions, such as conditions 4,
5, 6, and 8, are essentially always applicable to work in navigable
waters of the United States. For example, 33 CFR 320.4(r) states that
mitigation is an important aspect of the review and balancing process
on many Department of the Army permit applications. The Corps policy at
33 CFR 320.4(r) on mitigation applies to all types of decisions,
including Section 10 permits. Some of the Section 404 only conditions
still generally apply only to Section 404 activities, but in an effort
to simplify the general conditions for the NWPs, the Corps is proposing
to combine all conditions into one section. This consolidation does not
increase the scope of analysis for determining if a particular project
qualifies for an NWP; the District Engineer must still use discretion
to determine if a particular condition applies to a particular
activity. We are proposing to modify the opening language of Section
404 only conditions 1, 2, 3, 4, 5, 7, and 8 to ``activity [or
activities], including structures and work in navigable waters of the
United States and discharges of dredged or fill material,'' to reflect
that broader application. The three modified conditions (general
conditions 9 and 13 and Section 404 only condition 6) and the modified
Section 404 only conditions would apply to all the existing NWPs as
well as the new NWPs that are issued.
The following is a discussion of our reasons for proposing changes
to 6 existing NWP conditions and adding one new NWP general condition.
If an existing NWP condition is not discussed below, no changes to that
condition are proposed, other than those changes cited in the previous
paragraph.
9. Water Quality. We are proposing to change the name of this
condition from ``Water Quality Certification'' to ``Water Quality'' and
modify this condition to require, for NWPs 12, 14, 17, 18, 21, 32, 40,
A, B, C, D, and E, a water quality management plan, if it is not
required as part of the 401 certification. This requirement only
applies to those projects for which a water quality management plan
would help keep the adverse effects on the aquatic environment minimal,
such as prevention of more than minimal degradation of downstream water
quality by maintaining a vegetated buffer adjacent to open water bodies
such as lakes and streams. The requirement of implementation of a water
quality management plan is not intended to apply to projects where the
impacts to the aquatic environment are minimal, such as the
construction of a small road crossing to provide access to an upland
development where the impacts to waters of the United States regulated
by the Corps (i.e., NWP 14 in this example) are limited to a small
proportion of the project area. The requirement for a water quality
management plan is also not intended to increase the scope of analysis
of the Corps review. The water quality management plan must implement
methods and technologies to reduce direct and/or indirect degradation
of water quality as a result of the permitted work. Practices such as
vegetated buffers adjacent to open waters, sediment traps and barriers,
sediment detention basins and ponds, infiltration trenches, and
nutrient management techniques can be used to reduce degradation of
water quality due to adjacent land use.
13. Notification. We are proposing to require notification to the
District Engineer for all of the proposed NWPs, based on varying
thresholds, generally \1/3\ of an acre of impact. Because the Corps has
added so many NWPs with a PCN requirement, the PCN process must be
applied in a simple and consistent manner. Therefore, for discharges
causing the loss of greater than 1 acre of waters of the United States,
the notification will be sent to the appropriate Federal and State
agencies in accordance with paragraph (e) of General Condition 13. For
other activities requiring notification to the District Engineer, the
PCN will be subject to Corps-only review. The PCN will be subject to a
30-day review period, from the date of receipt of a complete PCN by the
District Engineer. Corps district personnel will utilize the PCN to
assess the environmental impacts of the proposed work and can recommend
appropriate actions, such as special conditions or compensatory
mitigation, to ensure that impacts are minimal.
16. Subdivisions. The Corps is including a condition in the
proposed NWPs similar to the ``subdivision clause'' of NWP 26, which
prohibited the use of NWP 26 for real estate subdivisions created after
October 5, 1984, where new discharges of dredged or fill material into
waters of the United States in said subdivision would cause the upper
acreage limit of NWP 26 to be exceeded. The Corps is proposing to
include a similar clause for NWPs A and B. The purpose of this
condition is to prevent the division of property as a means of getting
around the acreage limits of NWPs A and B. The subdivision clause would
state that the cumulative upper limit for a subdivision seeking
authorization under NWP A would be 3 acres for a single and complete
project, and that the cumulative upper limit for subdivisions seeking
to use NWP B would be 10 acres for a single and complete. The term
``single and complete'' means if, upon
[[Page 36065]]
authorization, any given project can be constructed, independent of any
reliance on subsequent Corps of Engineers authorization for additional
regulated activities (i.e., activities following those under current
authorization consideration). In other words, a project may be
considered single and complete if it has independent utility.
19. Suitable material. The Corps is proposing to modify this
general condition by inserting the words ``* * * used for construction
or * * *'' between ``material'' and ``discharged.'' This change was
made to ensure that materials used for structures or work in navigable
waters of the United States are made of suitable materials.
20. Mitigation. We are proposing to delete the words ``* * * unless
the District Engineer approves a compensation plan that the District
Engineer determines is more beneficial to the environment than on-site
minimization or avoidance measures.'' from this condition. This
condition will be modified to require restoration, creation,
enhancement, or preservation of aquatic resources to offset losses of
functions and values due to authorized impacts. This condition also
stresses the importance of including upland or wetland vegetated
buffers adjacent to open water areas as an important component of any
mitigation plan.
21. Spawning areas. The Corps is proposing to add a sentence to
this condition to prohibit activities that fill or excavate important
spawning areas.
22. Management of Water Flows. We are proposing to change the title
of this condition from ``Obstruction of High Flows'' to ``Management of
Water Flows'' and modifying it to require that permittees design their
projects to maintain preconstruction downstream flow conditions. The
permittee must, to the extent practicable, maintain the flow rates from
the site as close as is feasible to preconstruction levels to minimize
the potential for adverse effects to aquatic organisms and sediment
transport in the stream. The removal of vegetation, and the increase in
the percentage of impervious surfaces on a project site can increase
runoff flows from the site, which can result in downcutting of stream
beds and degradation of aquatic habitat. This condition also requires
that projects be designed to reduce upstream impacts such as flooding
or draining, unless the primary purpose of the project is to impound
water or reestablish drainage.
Definitions
To provide for consistency in the implementation of the proposed
NWPs, the Corps is proposing to include definitions for some terms used
in these NWPs. The definitions are located in Section E of this notice.
The Corps is seeking comments on these definitions.
Nationwide Permit 29 for Single Family Housing
On July 15, 1996, a lawsuit was filed by several organizations
against the Corps, challenging the issuance of NWP 29 under Section 404
of the Clean Water Act (CWA). The plaintiffs challenged the issuance of
NWP 29 because they believe that: (1) the Corps violated the CWA by
issuing an NWP for activities that result in more than minimal adverse
environmental effects; (2) the Corps violated the CWA by issuing an NWP
for activities that are not similar in nature; (3) the Corps violated
the procedural requirements of the Section 404(b)(1) Guidelines of the
CWA; (4) the Corps violated the Endangered Species Act (ESA) by failing
to consult with the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS); (5) the Corps violated the
Fish and Wildlife Coordination Act by failing to consult with the FWS
and NMFS; (6) the Corps violated the National Environmental Policy Act
(NEPA) by failing to prepare an Environmental Impact Statement (EIS);
and (7) the issuance of NWP 29 was arbitrary, capricious, and an abuse
of discretion. After the Corps reissued NWP 29 on December 13, 1996, a
supplemental complaint was filed by the plaintiffs challenging the
reissuance of NWP 29.
On April 30, 1998, a court order was issued by the United States
District Court, District of Alaska, remanding the Secretary of the Army
to consider excluding high value waters from NWP 29, consider the use
of lower acreage limits for NWP 29, and to set forth those
considerations in an amended environmental assessment (EA). The court
determined that the EA issued on December 10, 1996, inadequately
addressed the exclusion of high value waters and lower acreage limits
for NWP 29. Pending the Secretary of the Army's consideration of these
issues, the court enjoined the Corps from accepting any preconstruction
notifications for NWP 29 after June 30, 1998, unless the court orders
otherwise. The court did not address the other issues raised by the
plaintiffs because actions undertaken by the Corps as a result of the
remand may have significant impacts on the resolution of the other
arguments. It should be noted that the Corps is already undergoing ESA
consultation for NWP 29, which should be concluded this summer.
NWP 29 authorizes single family housing activities that have
minimal adverse effects, both individually and cumulatively, on the
aquatic environment. For this NWP, the Corps has several mechanisms to
protect high value waters and wetlands. All activities authorized under
NWP 29 require preconstruction notification to the Corps. The
preconstruction notification allows district engineers to review each
proposed activity to determine if it will result in minimal adverse
environmental effects, and if necessary, take measures such as adding
special conditions to the NWP authorization to further minimize the
adverse effects of the activity. Special conditions may require
compensatory mitigation to offset losses of aquatic resource functions
and values. If the proposed work will result in more than minimal
adverse environmental effects, then the District Engineer will exercise
discretionary authority to require an individual permit, with the
requisite alternatives analysis and public interest review. District
engineers can protect high value waters and endangered species by
regionally conditioning NWP 29. Regional conditioning may exclude the
use of NWP 29 from certain waters, such as non-tidal wetlands
contiguous to tidal waters, lower the acreage limit, or exclude the use
of NWP 29 in areas where endangered species or their critical habitat
is known to occur. The regional conditioning process is discussed
elsewhere in this notice.
Corps districts have been collecting data on the use of NWP 29
since 1995. Districts have been monitoring the use of NWP 29 by
tracking the number of NWP 29 verifications, the number of PCNs where
discretionary authority was exercised to require individual permits for
the proposed activity, the proposed acreage of impacts, the authorized
acreage of impacts, and the acreage of compensatory mitigation offered
and accepted for NWP 29 authorizations.
During Fiscal Year 1996, NWP 29 was used 333 times to authorize the
construction of single family residences and attendant features.
Discretionary authority was exercised for 9 PCNs to review the proposed
work under the individual permit process. During 1996, applicants
proposed to fill 101.8 acres of non-tidal waters of the United States,
but were authorized to fill only 62.7 acres. The acreage of
compensatory mitigation offered and accepted during this time period
was 2.3 acres. The average loss of waters of the United States per NWP
29 authorization was 0.19 acres.
During Fiscal Year 1997, NWP 29 was used 188 times. The Corps
asserted
[[Page 36066]]
discretionary authority and required individual permit review for two
requests for NWP 29 authorization. During this time period, applicants
proposed to fill 30.5 acres of non-tidal waters of the United States,
but were authorized to fill 28.1 acres of waters of the United States.
The acreage of compensatory mitigation offered and accepted during this
time period was 11.3 acres. During 1997, the average loss of waters of
the United States per NWP 29 authorization was 0.15 acres.
Corps districts are also monitoring cumulative impacts to ensure
compliance with the CWA. Corps districts generally monitor regulated
activities on a watershed basis to ensure that the activities
authorized by NWP 29 and other Corps permits do not result in more than
minimal cumulative adverse effects on the aquatic environment in a
particular watershed. Division engineers can revoke NWP 29 in high
value aquatic environments or in specific geographic areas (e.g.,
watersheds), if they believe that the use of NWP 29 in these areas will
result in more than minimal individual and/or cumulative adverse
environmental effects to the aquatic environment.
In accordance with the court order, we have prepared a revised EA
for NWP 29. The revised EA includes a Section 404(b)(1) Guidelines
compliance review and a Finding of No Significant Impact (FONSI). The
revised EA also discusses how high value waters are protected under the
NWP and the consideration of lower acreage limits for NWP 29. Copies of
the revised EA and FONSI are available at the office of the Chief of
Engineers, at each District office, and on the Corps home page at
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/. Based on these
analyses, the Corps has determined that the issuance of NWP 29 complies
with the requirements for issuance under general permit authority.
During the comment period for the proposed reissuance of NWP 29,
the Corps considered different acreage limits for this NWP. Several
commenters recommended that the acreage limit be reduced to \1/10\
acre. A few other commenters recommended an acreage limit of \1/4\
acre. As discussed previously in this notice, the average acreage
impact authorized by NWP 29 was 0.19 acre and 0.15 acre during fiscal
years 1996 and 1997, respectively. The average acreage impact requested
by applicants was 0.31 acre in 1996 and 0.16 acre in 1997. During their
review of PCNs for NWP 29 authorization, district engineers required
additional avoidance and minimization to ensure that the authorized
impacts were minimal. Although NWP 29 has an acreage limit of \1/2\
acre, few projects were authorized with that amount of impact. District
engineers require avoidance and minimization during the PCN process to
ensure minimal adverse environmental impacts due to the work. A higher
acreage limit, although it may be rarely used, provides district
engineers with the flexibility to authorize projects that have minimal
adverse effects under NWP 29, even though they may adversely affect a
somewhat larger area of low-value wetlands. As a result, the Corps
considered decreasing the acreage limit of this NWP and determined that
lower acreage limits are not necessary in terms of environmental
effects or the workload that would be required to process requests for
higher acreage impacts through the individual permit process.
To provide further assurance that NWP 29 authorizes only single
family housing activities that have minimal adverse environmental
effects, the Corps is now proposing to modify the acreage limit for NWP
29 to \1/4\ acre. The public is invited to provide comments on the
proposed modification to the acreage limit for NWP 29 within 60 days of
the date of this notice. The Corps is not requesting comments on the
other terms of NWP 29. In the interim, the Corps is suspending NWP 29
for activities that result in the loss of greater than \1/4\ acre of
non-tidal waters of the United States.
It is unlikely that the suspension or modification of NWP 29 will
result in a substantial burden on the regulated public, since the
average NWP 29 authorization in 1996 and 1997 resulted in the loss of
0.19 acre of non-tidal waters of the United States. Most small
landowners can design their single family residences to comply with
this new acreage limit for NWP 29. If not, then they can request
authorization through the individual permit process or by a regional
general permit, if available.
Therefore, from the date of this notice until the Corps has
determined whether or not to modify NWP 29, NWP 29 can be used to
authorize discharges of dredged or fill material to construct single
family housing, including attendant features, provided the discharge
does not result in the loss of greater than \1/4\ acre of non-tidal
waters of the United States, including non-tidal wetlands. All other
terms and limitations for NWP 29, as published in the December 13,
1996, issue of the Federal Register, remain in effect. Discharges for
single family housing activities that result in the loss of greater
than \1/4\ acre of non-tidal waters of the United States, including
non-tidal wetlands, will be processed either under the individual
permit process or by regional general permits. For information
purposes, the text of the proposed modification of NWP 29 is as
follows:
29. Single-Family Housing. Discharges of dredged or fill material
into non-tidal waters of the United States, including non-tidal
wetlands for the construction or expansion of a single-family home and
attendant features (such as a garage, driveway, storage shed, and/or
septic field) for an individual permittee provided that the activity
meets all of the following criteria:
a. The discharge does not cause the loss of more than \1/4\ acre of
non-tidal waters of the United States, including non-tidal wetlands;
b. The permittee notifies the District Engineer in accordance with
the ``Notification'' general condition;
c. The permittee has taken all practicable actions to minimize the
on-site and off-site impacts of the discharge. For example, the
location of the home may need to be adjusted on-site to avoid flooding
of adjacent property owners;
d. The discharge is part of a single and complete project;
furthermore, that for any subdivision created on or after November 22,
1991, the discharges authorized under this NWP may not exceed an
aggregate total loss of waters of the United States of \1/4\ acre for
the entire subdivision;
e. An individual may use this NWP only for a single-family home for
a personal residence;
f. This NWP may be used only once per parcel;
g. This NWP may not be used in conjunction with NWP 14, NWP 18, or
NWP 26, for any parcel; and,
h. Sufficient vegetated buffers must be maintained adjacent to all
open water bodies, streams, etc., to preclude water quality degradation
due to erosion and sedimentation.
For the purposes of this NWP, the acreage of loss of waters of the
United States includes the filled area previously permitted, the
proposed filled area, and any other waters of the United States that
are adversely affected by flooding, excavation, or drainage as a result
of the project. Whenever any other NWP is used in conjunction with this
NWP, the total acreage of impacts to waters of the United States of all
NWPs combined, can not exceed \1/4\ acre. This NWP authorizes
activities only by individuals; for this purpose, the term
``individual'' refers to a natural person and/or a married couple, but
does not include a corporation,
[[Page 36067]]
partnership, or similar entity. For the purposes of this NWP, a parcel
of land is defined as ``the entire contiguous quantity of land in
possession of, recorded as property of, or owned (in any form of
ownership, including land owned as a partner, corporation, joint
tenant, etc.) by the same individual (and/or that individual's spouse),
and comprises not only the area of wetlands sought to be filled, but
also all land contiguous to those wetlands, owned by the individual
(and/or that individual's spouse) in any form of ownership''. (Sections
10 and 404)
Authority
Accordingly, we are proposing to issue new NWPs, modify existing
NWPs, and add conditions and to add NWP definitions under the authority
of Section 404(e) of the Clean Water Act (33 U.S.C. 1344) and Section
10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401 et seq.).
Dated: June 23, 1998.
Approved:
Russell L. Fuhrman,
Major General, U.S. Army, Director of Civil Works.
Nationwide Permits, Conditions, Further Information, and Definitions
A. Index of Nationwide Permits, Conditions, Further Information,
and Definitions
Proposed New Nationwide Permits
A. Residential, Commercial, and Institutional Activities
B. Master Planned Development Activities
C. Stormwater Management Facilities
D. Passive Recreational Facilities
E. Mining Activities
F. Reshaping Existing Drainage Ditches
Nationwide Permits Proposed To Be Modified
3. Maintenance
7. Outfall Structures and Maintenance
12. Utility Activities
14. Linear Transportation Crossings
27. Stream and Wetland Restoration Activities
40. Agricultural Activities
Nationwide Permit Conditions
General Conditions
1. Navigation
2. Proper Maintenance
3. Soil Erosion and Sediment Controls
4. Aquatic Life Movements
5. Equipment
6. Regional and Case-by-Case Conditions
7. Wild and Scenic Rivers
8. Tribal Rights
9. Water Quality*
10. Coastal Zone Management
11. Endangered Species
12. Historic Properties
13. Notification*
14. Compliance Certification
15. Multiple Use of Nationwide Permits
16. Subdivisions*
17. Water Supply Intakes
18. Shellfish Production
19. Suitable Material*
20. Mitigation*
21. Spawning Areas*
22. Management of Water Flows*
23. Adverse Effects from Impoundments
24. Waterfowl Breeding Areas
25. Removal of Temporary Fills
(* Indicates conditions proposed to be changed.)
Further Information
Definitions
1. Aquatic Bench
2. Best Management Practices
3. Channelized stream
4. Contiguous wetland
5. Drainage ditch
6. Ephemeral stream
7. Farm
8. Intermittent stream
9. Loss of waters of the United States
10. Noncontiguous wetland
11. Non-tidal wetland
12. Perennial stream
13. Riffle and pool complexes
14. Stormwater management
15. Stormwater management facilities
16. Tidal wetland
17. Vegetated shallows
18. Waterbody
B. Nationwide Permits
A. Residential, Commercial, and Institutional Activities
Discharges into non-tidal waters of the United States, excluding
non-tidal wetlands contiguous to tidal waters, associated with
residential, commercial, and institutional development activities.
Residential developments (multiple and single unit development for
other than the personal residence of the permittee), commercial
developments (such as retail stores, industrial parks, restaurants,
business parks, shopping centers, and commercial recreational
activities) and institutional developments (such as schools, fire
stations, government office buildings, judicial buildings, public works
buildings, libraries, hospitals and places of worship), are authorized,
and may include activities such as: grading, rechannelization,
expansion of an existing development, building pads, soil erosion and
sediment control measures, and infrastructure such as utilities, roads,
driveways, sidewalks, and recreation activities associated with the
development, including activities such as playgrounds, ball fields,
golf courses, nature trails, etc., provided that the activity meets all
of the following criteria:
a. The discharge does not cause the loss of greater than 3 acres of
non-tidal waters of the United States, using an index of impact acreage
as follows*:
------------------------------------------------------------------------
Maximum
acreage
Parcel size loss
authorized
------------------------------------------------------------------------
Less than 5 acres.......................................... 1/4 acre.
5-10 acres................................................. 1/2 acre.
10-15 acres................................................ 1 acre.
15-100 acres............................................... 2 acres.
Greater than 100 acres..................................... 3 acres.
------------------------------------------------------------------------
b. For discharges causing the loss of greater than 1/3 acre of non-
tidal waters of the United States, including non-tidal wetlands, the
permittee notifies the District Engineer in accordance with the
``Notification'' general condition;
c. For activities that involve excavation and/or filling of open
waters, including perennial or intermittent waterways, below the
ordinary high water mark, the permittee notifies the District Engineer
in accordance with the ``Notification'' general condition;
d. For discharges in special aquatic sites, including wetlands, the
notification must also include a delineation of affected special
aquatic sites, including wetlands;
e. The discharge is part of a single and complete project;
f. The permittee must avoid and minimize discharges into waters of
the United States at the project site to the maximum extent
practicable, and the notification must include a written statement to
the District Engineer detailing compliance with this condition, i.e.,
why the discharge must occur in waters of the United States and
avoidance or additional minimization cannot be achieved;
g. For discharges requiring notification the permittee must submit
a mitigation proposal that will offset the loss to waters of the United
States;
h. Whenever any other NWP is used in conjunction with this NWP, the
combined total acres of impacts to waters of the United States cannot
exceed 3 acres and any combined total acreage exceeding \1/3\ acre
requires that the permittee notify the District Engineer in accordance
with the ``Notification'' general condition; and
i. Any work authorized with this permit must not cause more than
minor changes to the flow characteristics of any stream, or measurably
degrade water quality (See General Conditions 9 and 22). (Sections 10
and 404)
*Note: For the purposes of the proposed NWP, a discussion of
acreage limit options is provided in the preamble.
B. Master Planned Development Activities
Discharges into non-tidal waters of the United States, excluding
non-tidal
[[Page 36068]]
wetlands contiguous to tidal waters, associated with a comprehensively
planned development which may include a combination of, but is not
limited to, the following: residential housing, office parks, retail
stores, restaurants, playgrounds, ball fields, golf courses, ponds,
impoundments, community green space, parks, trails, soil erosion and
sediment control measures, sewage and/or water treatment facilities,
storm water management facilities, and infrastructure such as
utilities, roads, driveways, and sidewalks, provided that the activity
meets all of the following criteria:
a. The discharge does not cause the loss of greater than 10 acres
of non-tidal waters of the United States, using an index of impact
acreage as follows*:
------------------------------------------------------------------------
Maximum
acreage
Parcel size loss
authorized
------------------------------------------------------------------------
100-200 acres.............................................. 3 acres.
200-300 acres.............................................. 5 acres.
300-500 acres.............................................. 7 acres.
Greater than 500 acres..................................... 10 acres.
------------------------------------------------------------------------
b. The permittee notifies the District Engineer in accordance with
the ``Notification'' general condition;
c. For discharges in all waters of the United States, including
wetlands, the notification must also include a delineation of affected
waters and/or wetlands;
d. The notification will include a wetland assessment utilizing a
functional assessment approach approved by the District Engineer;
e. The discharge is part of a single and complete project; however
the activity may proceed in phases;
f. The permittee must avoid and minimize discharges into waters of
the United States at the project site to the maximum extent
practicable, and the notification must include a written statement to
the District Engineer detailing compliance with this condition (i.e.,
why the discharge must occur in waters of the United States and why
avoidance or additional minimization cannot be achieved);
g. The notification must include a mitigation proposal that will
offset the loss to waters of the United States;
h. Deed restrictions, protective covenants, land trusts, or other
means of conservation and preservation will be required for all waters
of the United States, including wetlands, on the project site,
including riparian buffers and/or vegetated buffers adjacent to open
water, as well as all existing, enhanced, restored, or created wetland
areas; and
i. Whenever any other NWP is used in conjunction with this NWP, the
combined total acres of impacts to waters of the United States cannot
exceed 10 acres.
Master Planned Development: The intent of defining Master Planned
Development is to distinguish these activities from those that would be
authorized under NWP A. Unlike NWP A, this NWP is limited to
authorizing those activities that are mixed-use in nature. Master
planned developments are designed, constructed, and managed to
integrate multiple uses in a manner that conserves and enhances the
functions and values of the water resources on the project site. NWP B
is intended to be consistent with the increasing nationwide efforts by
counties and local communities across the country to encourage mixed-
use development and to motivate land use planning alternatives that
incorporate consideration of the environment. This NWP is designed to
match up with the efforts of local communities to achieve these goals
by encouraging the development of environmentally responsible,
multiple-use communities and building upon the incentives currently
provided by State and local governments. Such master planned
developments provide communities with an opportunity to address a
variety of concerns, including protecting sensitive natural areas,
consolidating infrastructure and maximizing the delivery of urban
services. The project may consist of cluster developments surrounded by
a substantial amount of open or green space, including vegetated
buffers to waters of the United States. All remaining waters of the
United States on the project site, including wetlands and riparian
areas that are restored, enhanced, or created as compensatory
mitigation for impacts authorized by this NWP, as well as vegetated
buffers, will be set aside and preserved through deed restrictions,
protected covenants, land trusts, or other legal means, to protect
these areas and maintain water quality and aquatic resource values.
(Sections 10 and 404)
*Note: For the purposes of the proposed NWP, a discussion of
acreage limit options is provided in the preamble.
C. Stormwater Management Facilities
Discharges of dredged or fill material into non-Section 10 waters
of the United States, including wetlands, for the construction and
maintenance of stormwater management facilities, including activities
for the excavation for stormwater ponds/facilities, detention, and
retention basins, installation and maintenance of water control
structures, outfall structures and emergency spillways; and the
maintenance dredging of existing stormwater management ponds/
facilities, detention and retention basins provided that the activity
meets all of the following criteria:
a. The discharge or excavation for the construction of new
stormwater management facilities does not cause the loss of greater
than 2 acres of non-tidal wetlands;
b. For discharges or excavation for the construction of new
stormwater management facilities causing the loss of greater than \1/3\
acre of non-tidal waters of the United States, including wetlands, or
for the maintenance of existing stormwater management facilities
causing the loss of greater than 1 acre of non-tidal waters of the
United States, or for the loss of greater than 500 linear feet of
intermittent stream bed, the permittee notifies the District Engineer
in accordance with the ``Notification'' general condition. In addition
the notification must include:
(1) A maintenance plan, which is in accordance with State and local
requirements, if any;
(2) For discharges in special aquatic sites, including wetlands,
the notification must include a delineation of affected areas; and
(3) For discharges involving construction of stormwater management
facilities, the notification must include a mitigation proposal that
will offset the loss of waters of the United States. In appropriate
circumstances, compensatory mitigation can be provided by the use of
bioengineering techniques and aquatic benches within the stormwater
management facility. Compensatory mitigation will not be allowed in
designated facility maintenance areas. Where the size of the facility
allows for the construction of sediment forebays, such designs will be
used to the maximum extent practicable to enhance water quality and to
minimize the maintenance area of the facility. Future maintenance in
constructed areas will not require mitigation provided that maintenance
is accomplished in designated maintenance areas and not within
compensatory mitigation areas.
c. The stormwater management facility must be designed using Best
Management Practices and watershed protection techniques (e.g.,
vegetated buffers, siting considerations to minimize adverse effects to
aquatic resources, bioengineering methods incorporated into the
facility design to benefit water quality and minimize
[[Page 36069]]
adverse effects to aquatic resources from storm flows especially
downstream of the facility, as appropriate) that provide for long term
aquatic protection and enhancement, to the maximum extent practicable;
d. Maintenance excavation will be in accordance with an approved
maintenance plan and will not exceed the original contours of the
facility as approved and constructed; and
e. The discharge is part of a single and complete project.
f. This permit does not authorize the discharge of dredged or fill
material for the construction of new stormwater management facilities
in perennial streams. (Section 404)
D. Passive Recreational Facilities. Discharges of dredged or fill
material into non-tidal waters of the United States, excluding non-
tidal wetlands contiguous to tidal waters, for the construction or
expansion of passive recreational facilities, provided that the
activity meets all of the following criteria:
a. The discharge does not cause the loss of greater than 1 acre of
non-tidal waters of the United States, including non-tidal wetlands;
b. For discharges causing the loss of greater than \1/3\ acre of
non-tidal waters of the United States, or the loss of greater than 500
linear feet of stream bed, the permittee notifies the District Engineer
in accordance with the ``Notification'' general condition;
c. For discharges in special aquatic sites, including wetlands, the
notification must include a delineation of affected special aquatic
sites, including wetlands; and
d. The discharge is part of a single and complete project.
A passive recreational facility is defined as a low-impact
recreational facility that is integrated into the natural landscape and
consists primarily of open space that does not substantially change
preconstruction grades or deviate from natural landscape contours. The
primary function of passive recreational facilities does not include
the use of motor vehicles, buildings, or impervious surfaces. Examples
of passive recreational facilities that may be authorized by this NWP
include: hiking trails, bike paths, horse paths, nature centers, and
campgrounds (excluding trailer parks). The construction or expansion of
golf courses and ski areas may be authorized by this NWP, provided the
golf course or ski area does not substantially deviate from natural
landscape contours and is designed to minimize adverse effects to
waters of the United States and riparian areas through the use of such
practices as integrated pest management, adequate stormwater management
facilities, vegetated buffers, reduced fertilizer use, etc. The
facility must have an adequate water quality management plan in
accordance with General Condition 9, such as a stormwater management
facility constructed in uplands to ensure that the recreational
facility results in no substantial adverse effects to water quality.
This NWP also authorizes support facilities, such as maintenance and
storage buildings, office buildings, rental buildings, and stables that
are directly related to the recreational activity. It does not
authorize other buildings, hotels, restaurants, etc. Whenever any other
NWP is used in conjunction with this NWP, the total acreage of impacts
to waters of the United States of all NWPs combined, cannot exceed 1
acre. The construction or expansion of playing fields (e.g., baseball
or football fields), basketball and tennis courts, race tracks,
stadiums, and arenas is not authorized by this NWP. (Section 404)
E. Mining Activities
Discharges of dredged or fill material into non-tidal waters of the
United States, excluding non-tidal wetlands contiguous to tidal waters,
for aggregate mining (i.e., sand, gravel, crushed and broken stone) and
hard rock metal/mineral mining activities (i.e., extraction of
metalliferous ores from subsurface locations), including exploration,
excavation, dredging, processing, stream relocation and/or diversion,
overburden disposal, stockpiling, mechanized landclearing, mined land
reclamation, and support activities, provided the discharge meets all
of the following criteria:
a. Lower perennial riverine systems: Any discharges for excavation
and dredging activities associated with sand and gravel mining in lower
perennial riverine systems as defined by the Cowardin classification
system for aquatic habitats (areas that are defined as special aquatic
sites [40 CFR Subpart E, 230.40 through 230.45] are excluded), must:
1. not cause the loss of greater than 2 acres of waters of the
United States;
2. not result in the excavation of fish spawning areas and
shellfish beds;
3. include necessary measures to prevent increases in stream
gradient and water velocities, to prevent adverse effects (e.g., head
cutting, bank erosion) on upstream and downstream channel conditions;
4. not result in adverse affects on the course, capacity, or
condition of navigable waters of the United States; and
5. include measures to minimize downstream turbidity;
b. Intermittent and ephemeral streams: Any discharges for
excavation, dredging, processing, exploration, trenching, stockpiling,
and mined land reclamation activities associated with sand and gravel
mining activities in intermittent and ephemeral streams (areas that are
defined as special aquatic sites [40 CFR Subpart E, 230.40 through
230.45] are excluded), must:
1. not cause the loss of greater than 1 acre of waters of the
United States; and
2. include necessary measures to prevent increases in stream
gradient and water velocities, to prevent adverse effects (e.g., head
cutting, bank erosion) on upstream and downstream channel conditions;
c. Intermittent and small perennial stream relocations: Any
discharges for stream relocation/diversion activities (i.e., mining may
not occur in open waters below the ordinary high water mark; only
stream relocation and diversion are authorized) associated with crushed
or broken stone mining in intermittent and small perennial streams
(areas that are defined as special aquatic sites [40 CFR Subpart E,
230.40 through 230.45] are excluded), must:
1. not cause the loss of greater than 1 acre of waters of the
United States;
2. include necessary measures to prevent increases in stream
gradient and water velocities and to prevent adverse effects (e.g.,
head cutting, bank erosion) on upstream and downstream channel
conditions; and
3. not result in the excavation of fish spawning areas and
shellfish beds;
d. Isolated wetlands and wetlands above the ordinary high water
mark, in non-Section 10 waters: Any discharges for excavation,
exploration, dredging, processing, mechanized landclearing,
stockpiling, stream relocation/diversion, on-site overburden disposal,
and mined land reclamation associated with aggregate mining activities
in isolated wetlands and wetlands above the ordinary high water mark in
non-Section 10 streams, must:
1. not cause the loss of greater than 2 acres of waters of the
United States; and
2. be compensated for through mitigation approved by the Corps;
e. Dry washes and arroyos: Any discharges, including excavation,
associated with aggregate mining activities in dry washes and arroyos,
must:
1. not cause the loss of greater than 2 acres of waters of the
United States;
2. include necessary measures to prevent increases in stream
gradient and water velocities and to prevent adverse effects (e.g.,
head cutting, bank erosion)
[[Page 36070]]
on upstream and downstream channel conditions; and
3. include necessary measures to prevent adverse water quality
effects on groundwater resources;
f. Intermittent and small perennial stream relocations: Any
discharges for stream relocation/diversion activities (i.e., mining may
not occur in open waters below the ordinary high water mark; only
stream relocation and diversion are authorized) associated with hard
rock metal/mineral mining activities in intermittent and small
perennial streams (areas that are defined as special aquatic sites [40
CFR Subpart E, 230.40 through 230.45] are excluded), must:
1. not cause the loss of greater than 1 acre of waters of the
United States;
2. include necessary measures to prevent increases in stream
gradient and water velocities and to prevent adverse effects (e.g.,
head cutting, bank erosion) on upstream and downstream channel
conditions; and
3. not result in the excavation of fish spawning areas and
shellfish beds;
g. Isolated wetlands and wetlands above the ordinary high water
mark, in non-Section 10 waters: Any discharges for excavation,
exploration, dredging, processing, mechanized landclearing,
stockpiling, stream relocation/diversion, on-site overburden disposal,
and mined land reclamation associated with hard rock metal/mineral
mining activities in isolated wetlands and wetlands above the ordinary
high water mark in non-Section 10 streams, must:
1. not cause the loss of greater than 2 acres of waters of the
United States; and
2. be compensated for through mitigation approved by the Corps;
h. Dry washes and arroyos: Any discharges, including excavation,
associated with hard rock metal/mineral mining activities in dry washes
and arroyos, must:
1. not cause the loss of greater than 2 acres of waters of the
United States;
2. include necessary measures to prevent increases in stream
gradient and water velocities and to prevent adverse effects (e.g.,
head cutting, bank erosion) on upstream and downstream channel
conditions; and
3. include necessary measures to prevent adverse water quality
effects on groundwater resources;
i. Support activities: Any discharges for support activities
associated with aggregate mining and/or hard rock metal/mineral mining
activities, including the construction of berms, access and haul roads,
rail lines, dikes, road crossings, settling ponds and settling basins,
ditching, storm water and surface water management, head cutting
prevention, sediment and erosion controls, and mechanized land
clearing, must not cause the loss of more than 1 acre of waters of the
United States, including wetlands. This acreage limit does not include
temporary mining roads that are exempt under Section 404(f). The limit
of 1 acre of impact for support activities will be in addition to the
acreage allowed for the mining activities;
j. Single and complete project: The discharges must be for a single
and complete project. Multiple mining activity discharges into several
designated parcels of a mining project, may be included together as
long as the acreage limit for each aquatic resource type is not
exceeded and the combination of more than one aquatic resource type
does not exceed 2 acres. The total maximum acreage of waters of the
United States adversely affected by the mining activities combined with
the support activities will not exceed 3 acres (2 acres)*;
k. Notification: The permittee notifies the District Engineer in
accordance with the ``Notification'' general condition. The
notification must include a description of all waters of the United
States impacted by the project, and, where required, a discussion of
measures to minimize or prevent adverse effects (e.g., head cutting,
bank erosion, turbidity, water quality) to waters of the United States,
a description of measures taken to meet the criteria associated with
the discharge being permitted, and a reclamation plan; and
l. Authorized activities associated with hard rock/mineral mining
may include beneficiation and mineral processing. This NWP does not
authorize hard rock/mineral mining in Section 10 waters or any mining
activity in wetlands that are contiguous to tidal waters. (Sections 10
and 404)
*Note: For the purposes of the proposed NWP, a discussion of
acreage threshold options being considered for NWP E is provided in
the preamble.
F. Reshaping Existing Drainage Ditches
Discharges of dredged or fill material into non-Section 10 waters
of the United States to modify the cross-sectional configuration of
existing serviceable drainage ditches constructed in non-Section 10
waters of the United States. No compensatory mitigation is required if
the work is designed to improve water quality (e.g., by regrading the
drainage ditch with gentler slopes, which can reduce erosion, increase
growth of vegetation, increase uptake of nutrients and other substances
by vegetation, etc.). The reshaping of the ditch cannot increase
drainage beyond the original project boundaries or expand the area
drained by the ditch as originally designed (i.e., the capacity of the
ditch must be the same as originally designed and it cannot drain
additional wetlands or other waters of the United States). The
permittee must notify the District Engineer in accordance with the
``Notification'' general condition, if material excavated during ditch
reshaping is sidecast into waters of the United States. This NWP does
not apply to reshaping drainage ditches constructed in uplands, since
these areas are not waters of the United States, or to the maintenance
of existing drainage ditches to their original dimensions and
configuration, which does not require a Section 404 permit (see 33 CFR
323.4(a)(3)). This NWP does not authorize the relocation of drainage
ditches constructed in waters of the United States; the location of the
centerline of the reshaped drainage ditch must be approximately the
same as the location of the centerline of the original drainage ditch.
This NWP does not authorize the reshaping and maintenance of drainage
ditches in navigable waters of the United States, which requires a
Section 10 permit. This NWP does not authorize stream channelization or
stream relocation projects. (Section 404)
3. Maintenance Activities related to: (i) The repair,
rehabilitation, or replacement of any previously authorized, currently
serviceable, structure, or fill, or of any currently serviceable
structure or fill authorized by 33 CFR 330.3, provided that the
structure or fill is not to be put to uses differing from those uses
specified or contemplated for it in the original permit or the most
recently authorized modification, and the District Engineer receives
notification for all work other than the replacement of a structure.
Minor deviations in the structure's configuration or filled area
including those due to changes in materials, construction techniques,
or current construction codes or safety standards which are necessary
to make repair, rehabilitation, or replacement are permitted, provided
the environmental impacts resulting from such repair, rehabilitation,
or replacement are minimal. Currently serviceable means useable as is
or with some maintenance, but not so degraded as to essentially require
reconstruction. This nationwide permit authorizes the repair,
rehabilitation, or replacement of those structures destroyed or damaged
by storms, floods, fire or other discrete events, provided the repair,
[[Page 36071]]
rehabilitation, or replacement is commenced, or is under contract to
commence, within two years of the date of their destruction or damage.
In cases of catastrophic events, such as hurricanes or tornadoes, this
two-year limit may be waived by the District Engineer, provided the
permittee can demonstrate funding, contract, or other similar delays.
Maintenance dredging and beach restoration are not authorized by this
nationwide permit.
(ii) Discharges of dredged or fill material, including excavation,
into any waters of the United States to remove accumulated sediments
and debris in the vicinity of existing structures (e.g., bridges,
culverted road crossings, water intake structures, etc.) and the
placement of new or additional rip rap to protect the structure,
provided the permittee notifies the District Engineer in accordance
with the ``Notification'' general condition. The removal of sediment is
limited to the minimum necessary to restore the waterway in the
immediate vicinity of the structure to the approximate dimensions that
existed when the structure was built, but cannot extend further than
200 feet in any direction from the structure. The placement of rip rap
must be the minimum necessary to protect the structure, or to ensure
the safety of the structure. This NWP does not authorize new stream
channelization or stream relocation projects. All excavated materials
must be deposited and retained in an upland area unless otherwise
specifically approved by the District Engineer under separate
authorization. Any bank stabilization measures require a separate
authorization from the District Engineer.
(iii) Discharges of dredged or fill material, including excavation,
into waters of the United States for the restoration of upland areas
damaged by a storm, flood or other discrete event, and minor dredging
to remove obstructions in a waterbody adjacent to the upland, where
such work requires activities in a regulated water of the United
States, provided that the District Engineer receives notification
within 12 months of the date of the damage, subject to the following
criteria;
a. The extent of the proposed restoration must be justified by a
recent topographic survey, or other evidence of the pre-existing
conditions. The restoration of the damaged areas cannot exceed the
contours, or ordinary high water mark, that existed prior to the
damage. The District Engineer retains the right to determine the extent
of the pre-existing conditions, and the extent of any restoration work;
b. Minor dredging to remove obstructions from the adjacent
waterbody is limited to 50 cubic yards below the plane of the ordinary
high water mark, and is limited to the degree needed to restore the
pre-existing bottom contours of the waterbody. The dredging may not be
done primarily to obtain fill for any restoration activities;
c. For activities affecting greater than \1/3\ acre of waters of
the United States, the permittee notifies the District Engineer in
accordance with the ``Notification'' general condition;
d. The discharge of dredged or fill material and all related work
needed to restore the upland is part of a single and complete project;
e. This permit authorizes such work, provided the District Engineer
has been notified as appropriate in accordance with condition (3)
within 12 months of the date of the damage, and the work has commenced,
or is under contract to commence, within 2 years of the date of the
damage;
f. This permit may not be used in conjunction with NWP 18 or NWP
19;
g. This NWP cannot be used to channelize a stream, and any work
authorized must not cause more than minor changes to the hydraulic flow
characteristics of the stream, increase flooding, or measurably degrade
water quality (See General Conditions 9 and 22); and
h. This permit may not be used to reclaim historic lands lost, over
an extended period of time, to normal erosion processes. (Sections 10
and 404)
7. Outfall Structures and Maintenance. Activities related to: (i)
Construction of outfall structures and associated intake structures
where the effluent from the outfall is authorized, conditionally
authorized, or specifically exempted, or are otherwise in compliance
with regulations issued under the National Pollutant Discharge
Elimination System program (Section 402 of the Clean Water Act), and
(ii) maintenance excavation, including dredging, to remove accumulated
sediments blocking or restricting outfall and intake structures,
accumulated sediments from small impoundments associated with outfall
and intake structures, and accumulated sediments from canals associated
with outfall and intake structures, provided that the activity meets
all of the following criteria: a
a. The permittee notifies the District Engineer in accordance with
the ``Notification'' general condition;
b. The amount of excavated or dredged material must be the minimum
necessary to restore the outfalls, intakes, small impoundments, and
canals to original design capacities and design configurations (i.e.,
depth and width);
c. The excavated or dredged material is deposited and retained at
an upland site, unless otherwise approved by the District Engineer
under separate authorization; and
d. Proper soil erosion and sediment control measures are used to
minimize reentry of sediments into waters of the United States.
The construction of intake structures is not authorized by this
NWP, unless they are directly associated with an outfall structure. For
maintenance excavation and dredging to remove accumulated sediments,
the notification must include information regarding the original design
capacities and configurations of the facility. (Sections 10 and 404)
12. Utility Activities. Discharges of dredged or fill material into
waters of the United States and/or structures in, over, or under
navigable waters of the United States for the following utility
activities:
(i) Utility lines: The construction or maintenance of utility
lines, including outfall and intake structures and the associated
excavation, backfill, or bedding for the utility lines, provided there
is no change in preconstruction contours. A ``utility line'' is defined
as any pipe or pipeline for the transportation of any gaseous, liquid,
liquefiable, or slurry substance, for any purpose, and any cable, line,
or wire for the transmission for any purpose of electrical energy,
telephone, and telegraph messages, and radio and television
communication (see Note 1, below). Material resulting from trench
excavation may be temporarily sidecast (up to three months) into waters
of the United States, provided that the material is not placed in such
a manner that it is dispersed by currents or other forces. The District
Engineer may extend the period of temporary side-casting not to exceed
a total of 180 days, where appropriate. In wetlands, the top 6'' to
12'' of the trench should normally be backfilled with topsoil from the
trench. Furthermore, the trench cannot be constructed in such a manner
as to drain waters of the United States (e.g., backfilling with
extensive gravel layers, creating a french drain effect). Any exposed
slopes and stream banks must be stabilized immediately upon completion
of the utility line crossing of each waterbody. This NWP also includes
the repair of existing utility lines.
(ii) Electric or pumping substations: The construction,
maintenance, or expansion of an electric or pumping substation,
provided the discharge does
[[Page 36072]]
not result in the loss of greater than 1 acre of non-Section 10 waters
of the United States.
(iii) Foundations for overhead utility line towers, poles, and
anchors: The construction or maintenance of foundations for overhead
utility lines, provided the foundations are the minimum size necessary
and separate footings for each tower leg (rather than a larger single
pad) are used where feasible.
(iv) Access roads: The construction of access roads for the
construction and maintenance of utility lines, including overhead power
lines, and substations is authorized, provided the discharge does not
cause the loss of greater than 1 acre of non-Section 10 waters of the
United States, excluding non-tidal waters contiguous with Section 10
waters. Access roads shall be the minimum width necessary (see Note 2,
below). Access roads must be constructed so that the length of the road
minimizes the adverse effects on waters of the United States and at
preconstruction contours and elevations, or as near as possible (e.g.,
at grade corduroy roads or geotextile/gravel roads). Access roads
constructed above preconstruction contours and elevations in waters of
the United States must be properly bridged or culverted to maintain
surface flows.
The term utility line does not include activities which drain a
water of the United States, such as drainage tile or french drains;
however, it does apply to pipes conveying drainage from another area.
For the purposes of this NWP, the acreage of loss of waters of the
United States includes the filled area plus waters of the United States
that are adversely affected by flooding, excavation, or drainage as a
result of the project. However, the term ``loss'' applies only to
waters of the United States permanently affected by filling, flooding,
excavation, or drainage and not to waters of the United States that are
temporarily affected by the work and restored to preconstruction
contours and wetland conditions. Temporary construction mats (e.g.,
timber, steel, geotextile) used during construction and removed upon
completion of the work are not included in the calculation of permanent
loss of waters of the United States.
Mechanized landclearing necessary for the installation and
maintenance of utility lines and the construction and maintenance of
electric and pumping substations, foundations for overhead utility
lines, and access roads is authorized, provided the cleared area is
kept to the minimum necessary and preconstruction contours are
maintained as near as possible. The area of waters of the United States
that is filled, excavated, or flooded must be limited to the minimum
necessary to construct the utility line, substations, foundations, and
access roads. Excess material must be removed to upland areas
immediately upon completion of construction. This NWP may authorize
utility lines in or affecting navigable waters of the United States,
even if there is no associated discharge of dredged or fill material
(See 33 CFR Part 322). Construction of access roads or the construction
or expansion of electric or pumping substations in navigable waters of
the United States is not authorized by this NWP.
Notification: The permittee must notify the District Engineer in
accordance with the ``Notification'' general condition, if any of the
following criteria are met:
(a) Mechanized landclearing in a forested wetland for the right-of-
way;
(b) A Section 10 permit is required;
(c) The utility line in waters of the United States, excluding
overhead lines, exceeds 500 feet;
(d) The utility line is placed within a jurisdictional area (i.e.,
a water of the United States), and it runs parallel to a stream bed
that is within that jurisdictional area;
(e) Discharges associated with the construction of electric or
pumping substations that result in the loss of greater than \1/3\ acre
of non-tidal waters of the United States; or
(f) Permanent access roads constructed above grade in waters of the
United States for a distance of more than 500 feet.
Note 1: Overhead utility lines constructed over Section 10
waters and utility lines that are routed in or under Section 10
waters without a discharge of dredged or fill material require a
Section 10 permit; except for pipes or pipelines used to transport
gaseous, liquid, liquefiable, or slurry substances over navigable
waters of the United States, which are considered to be bridges, not
utility lines, and may require a permit from the U.S. Coast Guard
pursuant to Section 9 of the River and Harbor Act of 1899. However,
any discharges of dredged or fill material associated with such
pipelines will require a Corps permit under Section 404.
Note 2: Access roads used for both construction and maintenance
may be authorized, provided they meet the terms and conditions of
this NWP. Access roads used solely for construction of the utility
line must be removed upon completion of the work and the area
restored to preconstruction contours, elevations, and wetland
conditions. Temporary access roads for construction may be
authorized by NWP 33. (Sections 10 and 404)
14. Linear Transportation Crossings. Activities required for the
construction, expansion, modification or improvement of linear
transportation crossings (e.g., highways, railways, trails, airport
runways, and taxiways) in waters of the United States, including
wetlands, provided that the activity meets the following criteria:
a. For public linear transportation crossings, the discharge is
limited to non-tidal waters of the United States, excluding non-tidal
wetlands contiguous to tidal waters, and does not cause the loss of
greater than 2 acres (1 acre)* of non-tidal waters of the United
States;
b. For private linear transportation crossings in waters of the
United States or public linear transportation crossings in tidal waters
or in non-tidal wetlands contiguous to tidal waters, the discharge does
not cause the loss of greater than \1/3\ acre of waters of the United
States, including wetlands, and the length of the fill for the crossing
in waters of the United States is limited to 200 linear feet;
c. The permittee notifies the District Engineer in accordance with
the ``Notification'' general condition for discharges into special
aquatic sites, including wetlands, or that cause the loss of greater
than \1/3\ acre of waters of the United States;
d. For public linear transportation crossings, the notification
must include a mitigation proposal that will offset the loss of waters
of the United States;
e. For discharges in special aquatic sites, including wetlands, the
notification must include a delineation of the affected special aquatic
sites;
f. The width of the fill is limited to the minimum necessary for
the crossing;
g. This NWP cannot be used to channelize a stream, and any work
authorized must not cause more than minor changes to the hydraulic flow
characteristics of the stream, increase flooding, or measurably degrade
water quality (See General Conditions 9 and 22); and
h. The crossing is part of a single and complete project for
crossing a water of the United States.
Some discharges for crossings may be eligible for an exemption from
the need for a Section 404 permit (see 33 CFR 323.4). (Sections 10 and
404)
*Note: For the purposes of this proposed modification to NWP 14,
a discussion of acreage threshold options being considered for NWP
14 is provided in the preamble.
27. Stream and Wetland Restoration Activities. Activities in waters
of the United States associated with the restoration and enhancement of
former non-tidal wetlands and riparian areas, the enhancement of
degraded wetlands
[[Page 36073]]
and riparian areas, the creation of wetlands and riparian areas, and
the restoration and enhancement of non-Section 10 streams and open
water areas; (i) on non-Federal public lands and private lands, in
accordance with the terms and conditions of a binding wetland
enhancement, restoration or creation agreement between the landowner
and the U.S. Fish and Wildlife Service or the Natural Resources
Conservation Service (NRCS) or voluntary wetland restoration,
enhancement, and creation actions documented by the NRCS pursuant to
NRCS regulations; or (ii) on any Federal land; or (iii) on reclaimed
surface coal mined lands, in accordance with a Surface Mining Control
and Reclamation Act permit issued by the Office of Surface Mining or
the applicable State agency. (The future reversion does not apply to
streams or wetlands created, restored or enhanced as mitigation for the
mining impacts, nor naturally due to hydrologic or topographic
features, nor for a mitigation bank.); or (iv) on any public or private
land, provided the permittee notifies the District Engineer in
accordance with the ``Notification'' general condition.
Such activities include, but are not limited to, the removal of
accumulated sediments, the installation, removal and maintenance of
small water control structures, dikes and berms; the installation of
current deflectors; the enhancement, restoration, or creation of riffle
and pool stream structure; the placement of in-stream habitat
structures; modifications of the stream bed and/or banks to restore or
create stream meanders; the backfilling of artificial channels and
drainage ditches; the removal of existing drainage structures; the
construction of small nesting islands; the construction of open water
areas; activities needed to reestablish vegetation, including plowing
or discing for seed bed preparation; mechanized land-clearing to remove
undesirable vegetation; and other related activities. This NWP cannot
be used to authorize activities for the conversion of a stream to
another aquatic use, such as the creation of an impoundment for
waterfowl habitat. This NWP cannot be used to channelize a stream. This
NWP does not authorize the conversion of natural wetlands to another
aquatic use, such as creation of waterfowl impoundments where a
forested wetland previously existed. However, this NWP may be used to
relocate aquatic habitat types on the project site, provided there are
net gains in aquatic resource functions and values. For example, this
NWP may authorize the creation of an open water impoundment in an
emergent wetland, provided the emergent wetland is replaced by creating
that wetland type in the adjacent uplands.
Reversion. For enhancement, restoration and creation projects
conducted under paragraphs (ii) and (iv), this NWP does not authorize
any future discharge of dredged or fill material associated with the
reversion of the area to its prior condition. In such cases a separate
permit at that time would be required for any reversion. For
restoration, enhancement and creation projects conducted under
paragraphs (i) and (iii), this NWP also authorizes any future discharge
of dredged or fill material associated with the reversion of the area
to its documented prior condition and use (i.e., prior to the
restoration, enhancement, or creation activities) within five years
after expiration of a limited term wetland restoration or creation
agreement or permit, even if the discharge occurs after this NWP
expires. The five year reversion limit does not apply to agreements
without time limits reached under paragraph (i). The prior condition
will be documented in the original agreement or permit, and the
determination of return to prior conditions will be made by the Federal
agency or appropriate State agency executing the agreement or permit.
Prior to any reversion activity the permittee or the appropriate
Federal or State agency must notify the District Engineer and include
the documentation of the prior condition. Once an area has reverted
back to its prior physical condition, it will be subject to whatever
the Corps regulatory requirements will be at that future date. Because
projects that would be authorized by this permit are designed to
enhance the aquatic environment, mitigation will not be required for
the work. (Sections 10 and 404)
40. Agricultural Activities. Discharges of dredged or fill material
into non-tidal waters of the United States, including non-tidal
wetlands, for the purpose of improving agricultural production and
construction of building pads for farm buildings. Activities authorized
include installation, placement, or construction of drainage tiles,
ditches, or levees; mechanized land clearing, land leveling, and
similar activities, provided:
a. The Natural Resources Conservation Service (NRCS) has made a
written notification based on an NRCS certified wetland determination
that the activity qualifies for a minimal effect exemption in
accordance with the provisions of the Food Security Act (16 U.S.C. 3801
et seq.) and the National Food Security Act Manual (NFSAM) and the
discharge does not cause a loss of greater than 1 acre of non-tidal
wetlands and no greater than \1/3\ acre of playas, prairie potholes, or
vernal pools;
b. The discharge does not cause a loss of greater than 3 acres of
non-tidal wetlands on a farm, using an index of impact acreage as
follows:
------------------------------------------------------------------------
Maximum
acreage
loss
Farm Size authorized
for
wetlands on
a farm
------------------------------------------------------------------------
Less than 15 acres......................................... \1/4\ acre.
15-25 acres................................................ \1/2\ acre.
25-50 acres................................................ \3/4\ acre.
50-100 acres............................................... 1 acre.
100-500 acres.............................................. 2 acres.
Greater than 500 acres..................................... 3 acres.
------------------------------------------------------------------------
and the permittee submits an NRCS (for USDA program participants and
non-participants) or Corps (for USDA non-participants only) approved
mitigation plan fully offsetting wetland losses;
c. The discharge does not cause the loss of greater than 1 acre of
naturally vegetated playas, prairie potholes, or vernal pools, using an
index of impact acreage as follows:
------------------------------------------------------------------------
Maximum
acreage
loss
authorized
Farm size for playas,
prairie
potholes,
and vernal
pools
------------------------------------------------------------------------
Less than 25 acres......................................... \1/4\ acre.
25-100 acres............................................... \1/2\ acre.
100-500 acres.............................................. \3/4\ acre.
Greater than 500 acres..................................... 1 acre.
------------------------------------------------------------------------
and the permittee submits an NRCS (for USDA program participants and
non-participants) or Corps (for USDA non-participants only) approved
mitigation plan fully offsetting wetland losses;
d. For construction of building pads for farm buildings, the
discharge does not cause the loss of greater than 1 acre of wetlands
(not to include playas, prairie potholes, and vernal pools) that were
in agricultural production prior to December 23, 1985; or
e. Any activity in other waters of the United States is limited to
the relocation of existing serviceable drainage ditches and previously
substantially manipulated intermittent and small perennial streams.
For the purposes of this NWP, the acreage of loss of waters of the
United States includes the filled area plus waters of the United States
that are adversely affected by flooding,
[[Page 36074]]
excavation or drainage as a result of the project. Also, authorized
activities involving excavation or drainage cannot have the effect of
adversely impacting jurisdictional areas through flooding, draining, or
restricting the flow and circulation of waters of the United States,
including wetlands, beyond the acreage permitted. The acreage limits
for the above activities to improve agriculture production are a
cumulative limit not to exceed each limit above nor exceed a total of 3
acres per farm for the duration of this nationwide permit (i.e., until
reissuance or any revocation). When this NWP is reissued it may be used
again on the same farm to authorize activities for impacts not to
exceed the acreage thresholds authorized in the reissuance. (The term
``farm'' refers to a land unit under one ownership operated as a farm
as reported to the Internal Revenue Service.) This NWP may not be used
in conjunction with any other NWP to exceed the acreage limits listed
in (a), (b), (c) and (d) above for the purpose of increasing acreage
for agriculture production. Regulated discharges associated with the
mitigation are authorized and not calculated into the overall acreage
figure. Work in waters of the United States not authorized by the above
provisions, may be authorized by other NWPs (e.g., NWP 3--maintenance,
NWP 13--bank stabilization, and NWP 27--wetland restoration).
Notification: The permittee must notify the District Engineer in
accordance with the ``Notification'' general condition for the loss of:
(1) Greater than \1/3\ acre of non-tidal wetlands, or (2) greater than
500 linear feet of drainage ditches and previously substantially
manipulated intermittent and small perennial streams. The appropriate
Federal and State agencies will be notified for the loss of greater
than 1 acre of non-tidal wetlands, in accordance with paragraph (e) of
General Condition 13. The notification must also include any past use
of this NWP on the farm. For discharges in special aquatic sites,
including wetlands, the notification must include a delineation of the
affected area.
This NWP does not affect, or otherwise regulate, discharges
associated with agricultural activities when the discharge qualifies
for an exemption under Section 404 of the Clean Water Act (CWA) (33 CFR
Part 323.4) even though a minimal effect/mitigation determination may
be required by the NRCS. (Section 404)
Note: For the purposes of this proposed modification to NWP 40,
a discussion of acreage limit options, the types of waters affected
in paragraph (b), and the definition of single and complete project,
is provided in the preamble.
C. Nationwide Permit General Conditions
The following general conditions must be followed in order for any
authorization by a NWP to be valid:
1. Navigation. No activity may cause more than a minimal adverse
effect on navigation.
2. Proper Maintenance. Any structure or fill authorized shall be
properly maintained, including maintenance to ensure public safety.
3. Soil Erosion and Sediment Controls. Appropriate soil erosion and
sediment controls must be used and maintained in effective operating
condition during construction, and all exposed soil and other fills, as
well as any work below the ordinary high water mark or high tide line,
must be permanently stabilized at the earliest practicable date.
4. Aquatic Life Movements. No activity may substantially disrupt
the movement of those species of aquatic life indigenous to the
waterbody, including those species which normally migrate through the
area, unless the activity's primary purpose is to impound water.
5. Equipment. Heavy equipment working in wetlands must be placed on
mats, or other measures must be taken to minimize soil disturbance.
6. Regional and Case-by-Case Conditions. The activity must comply
with any regional conditions which may have been added by the division
engineer (see 33 CFR 330.4(e)) and with any case specific conditions
added by the Corps or by the State or tribe in its section 401 water
quality certification.
7. Wild and Scenic Rivers. No activity may occur in a component of
the National Wild and Scenic River System; or in a river officially
designated by Congress as a ``study river'' for possible inclusion in
the system, while the river is in an official study status; unless the
appropriate Federal agency, with direct management responsibility for
such river, has determined in writing that the proposed activity will
not adversely effect the Wild and Scenic River designation, or study
status. Information on Wild and Scenic Rivers may be obtained from the
appropriate Federal land management agency in the area (e.g., National
Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish
and Wildlife Service.)
8. Tribal Rights. No activity or its operation may impair reserved
tribal rights, including, but not limited to, reserved water rights and
treaty fishing and hunting rights.
9. Water Quality. In certain States and tribal lands an individual
401 water quality certification must be obtained or waived (See 33 CFR
330.4(c)). For NWPs 12, 14, 17, 18, 21, 32, 40, A, B, C, D, and E where
the State or tribal 401 certification (either generically or
individually) does not require/approve a water quality management plan,
the permittee must include design criteria and techniques that provide
for protection of aquatic resources. The project must include a method
for storm water management that minimizes degradation of the downstream
aquatic system, including water quality. To the maximum extent
practicable, a vegetated buffer zone (including wetlands, uplands, or
both) adjacent to the river, stream, or other open waterbody must be
established and maintained, if the project occurs in the vicinity of
such an open waterbody. The Corps district will determine the proper
width of the buffer and in which cases it will be required.
10. Coastal Zone Management. In certain States, an individual State
coastal zone management consistency concurrence must be obtained or
waived (see Section 330.4(d)).
11. Endangered Species.
(a) No activity is authorized under any NWP which is likely to
jeopardize the continued existence of a threatened or endangered
species or a species proposed for such designation, as identified under
the Federal Endangered Species Act, or which is likely to destroy or
adversely modify the critical habitat of such species. Non-federal
permittees shall notify the District Engineer if any listed species or
critical habitat might be affected or is in the vicinity of the
project, and shall not begin work on the activity until notified by the
District Engineer that the requirements of the Endangered Species Act
have been satisfied and that the activity is authorized.
(b) Authorization of an activity by a nationwide permit does not
authorize the ``take'' of a threatened or endangered species as defined
under the Federal Endangered Species Act. In the absence of separate
authorization (e.g., an ESA Section 10 Permit, a Biological Opinion
with ``incidental take'' provisions, etc.) from the U.S. Fish and
Wildlife Service or the National Marine Fisheries Service, both lethal
and non-lethal ``takes'' of protected species are in violation of the
Endangered Species Act. Information on the location of threatened and
endangered species and their critical habitat can be obtained directly
from the offices of the U.S. Fish and Wildlife Service and National
Marine Fisheries Service or their world
[[Page 36075]]
wide web pages at http://www.fws.gov/r9endspp/endspp.html
and http://kingfish.spp.nmfs.gov/tmcintyr/prot__res.html#ES and
Recovery, respectively.
12. Historic Properties. No activity which may affect historic
properties listed, or eligible for listing, in the National Register of
Historic Places is authorized, until the DE has complied with the
provisions of 33 CFR Part 325, Appendix C. The prospective permittee
must notify the District Engineer if the authorized activity may affect
any historic properties listed, determined to be eligible, or which the
prospective permittee has reason to believe may be eligible for listing
on the National Register of Historic Places, and shall not begin the
activity until notified by the District Engineer that the requirements
of the National Historic Preservation Act have been satisfied and that
the activity is authorized. Information on the location and existence
of historic resources can be obtained from the State Historic
Preservation Office and the National Register of Historic Places (see
33 CFR 330.4(g)).
13. Notification.
(a) Timing: Where required by the terms of the NWP, the prospective
permittee must notify the District Engineer with a Pre-Construction
Notification (PCN) as early as possible and shall not begin the
activity:
(1) Until notified by the District Engineer that the activity may
proceed under the NWP with any special conditions imposed by the
District or Division engineer; or
(2) If notified by the District or Division engineer that an
individual permit is required; or
(3) Unless 30 days have passed from the District Engineer's receipt
of the notification and the prospective permittee has not received
notice from the District or Division Engineer. Subsequently, the
permittee's right to proceed under the NWP may be modified, suspended,
or revoked only in accordance with the procedure set forth in 33 CFR
330.5(d)(2).
(b) Contents of Notification: The notification must be in writing
and include the following information:
(1) Name, address and telephone numbers of the prospective
permittee;
(2) Location of the proposed project;
(3) Brief description of the proposed project; the project's
purpose; direct and indirect adverse environmental effects the project
would cause; any other NWP(s), regional general permit(s) or individual
permit(s) used or intended to be used to authorize any part of the
proposed project or any related activity; and
(4) For NWPs 12, 14, 18, 21, 29, 34, 38, A, B, C, D, and F, the PCN
must also include a delineation of affected special aquatic sites,
including wetlands, vegetated shallows, (e.g., submerged aquatic
vegetation, seagrass beds), and riffle and pool complexes (see
paragraph 13(f));
(5) For NWP 7--Outfall Structures and Maintenance, the PCN must
include information regarding the original design capacities and
configurations of those areas of the facility where maintenance
dredging or excavation is proposed.
(6) For NWP 12--Utility Activities, where the proposed utility line
is constructed or installed in navigable waters of the United States
(i.e., Section 10 waters), a copy of the PCN must be sent to the
National Oceanic Atmospheric Administration, National Ocean Service,
for charting the utility line to protect navigation.
(7) For NWP 21--Surface Coal Mining Activities, the PCN must
include an OSM or State approved mitigation plan.
(8) For NWP 29--Single-Family Housing, the PCN must also include:
(i) Any past use of this NWP by the individual permittee and/or the
permittee's spouse;
(ii) A statement that the single-family housing activity is for a
personal residence of the permittee;
(iii) A description of the entire parcel, including its size, and a
delineation of wetlands. For the purpose of this NWP, parcels of land
measuring 0.5 acre or less will not require a formal on-site
delineation. However, the applicant shall provide an indication of
where the wetlands are and the amount of wetlands that exists on the
property. For parcels greater than 0.5 acre in size, a formal wetland
delineation must be prepared in accordance with the current method
required by the Corps. (See paragraph 13(f));
(iv) A written description of all land (including, if available,
legal descriptions) owned by the prospective permittee and/or the
prospective permittee's spouse, within a one mile radius of the parcel,
in any form of ownership (including any land owned as a partner,
corporation, joint tenant, co-tenant, or as a tenant-by-the-entirety)
and any land on which a purchase and sale agreement or other contract
for sale or purchase has been executed;
(9) For NWP 31--Maintenance of Existing Flood Control Projects, the
prospective permittee must either notify the District Engineer with a
Pre-Construction Notification (PCN) prior to each maintenance activity
or submit a five year (or less) maintenance plan. In addition, the PCN
must include all of the following:
(i) Sufficient baseline information so as to identify the approved
channel depths and configurations and existing facilities. Minor
deviations are authorized, provided that the approved flood control
protection or drainage is not increased;
(ii) A delineation of any affected special aquatic sites, including
wetlands; and,
(iii) Location of the dredged material disposal site.
(10) For NWP 33--Temporary Construction, Access, and Dewatering,
the PCN must also include a restoration plan of reasonable measures to
avoid and minimize adverse effects to aquatic resources.
(11) For NWPs A and B, the PCN must also include a written
statement to the District Engineer detailing why the discharge must
occur in waters of the United States and additional avoidance or
minimization cannot be achieved.
(12) For NWP B--Master Planned Development Activities, the PCN must
also include:
(i) a wetland assessment utilizing a functional assessment approach
approved by the District Engineer;
(ii) a mitigation proposal that will offset the loss of waters of
the United States; and
(iii) evidence of deed restrictions, protective covenants, land
trusts, or other means of conservation and preservation for vegetated
buffers (both wetland and/or upland) to open water and any existing
wetlands, as well as any wetlands restored, enhanced, or created as
part of the project.
(13) For NWP C-Stormwater Management Facilities, the PCN must
include, for the construction of stormwater management facilities, a
mitigation proposal to offset losses of waters of the United States.
(14) For NWPs E-Mining Activities, the PCN must include a
description of all waters of the United States impacted by the project
and a reclamation plan.
(c) Form of Notification: The standard individual permit
application form (Form ENG 4345) may be used as the notification but
must clearly indicate that it is a PCN and must include all of the
information required in (b) (1)-(7) of General Condition 13. A letter
containing the requisite information may also be used.
(d) District Engineer's Decision: In reviewing the pre-construction
notification for the proposed activity, the District Engineer will
determine whether the activity authorized by the NWP will result in
more than minimal individual or cumulative adverse
[[Page 36076]]
environmental effects or may be contrary to the public interest. The
prospective permittee may, optionally, submit a proposed mitigation
plan with the pre-construction notification to expedite the process and
the District Engineer will consider any optional mitigation the
applicant has included in the proposal in determining whether the net
adverse environmental effects of the proposed work are minimal. If the
District Engineer determines that the activity complies with the terms
and conditions of the NWP and that the adverse effects on the aquatic
environment are minimal, the District Engineer will notify the
permittee and include any conditions the District Engineer deems
necessary.
Any mitigation proposal must be approved by the District Engineer
prior to commencing work. If the prospective permittee elects to submit
a mitigation plan, the District Engineer will expeditiously review the
proposed mitigation plan, but will not commence a second 30-day
notification procedure. If the net adverse effects of the project (with
the mitigation proposal) are determined by the District Engineer to be
minimal, the District Engineer will provide a timely written response
to the applicant stating that the project can proceed under the terms
and conditions of the nationwide permit.
If the District Engineer determines that the adverse effects of the
proposed work are more than minimal, then he will notify the applicant
either: (1) that the project does not qualify for authorization under
the NWP and instruct the applicant on the procedures to seek
authorization under an individual permit; (2) that the project is
authorized under the NWP subject to the applicant's submitting a
mitigation proposal that would reduce the adverse effects to the
minimal level; or (3) that the project is authorized under the NWP with
specific modifications or conditions.
(e) Agency Coordination: The District Engineer will consider any
comments from Federal and State agencies concerning the proposed
activity's compliance with the terms and conditions of the NWPs and the
need for mitigation to reduce the project's adverse environmental
effects to a minimal level.
For NWPs A, B, C, E, and 40, where the loss of waters of United
States is greater than 1 acre, and for NWPs 14, 21, 29, 33, 37, and 38,
the District Engineer will, upon receipt of a notification, provide
immediately, e.g., facsimile transmission, overnight mail or other
expeditious manner, a copy to the appropriate offices of the Fish and
Wildlife Service, State natural resource or water quality agency, EPA,
State Historic Preservation Officer (SHPO), and, if appropriate, the
National Marine Fisheries Service. For NWP 40, where the activity
results in the loss of greater than \1/3\ acre of playas, prairie
potholes, or vernal pools, the District Engineer will, upon receipt of
notification, provide immediately, a copy of the notification to the
appropriate office of the U.S. Fish and Wildlife Service. With the
exception of NWP 37, these agencies will then have 5 calendar days from
the date the material is transmitted to telephone or fax the District
Engineer notice that they intend to provide substantive, site-specific
comments. If so contacted by an agency, the District Engineer will wait
an additional 10 calendar days before making a decision on the
notification. The District Engineer will fully consider agency comments
received within the specified time frame, but will provide no response
to the resource agency. The District Engineer will indicate in the
administrative record associated with each notification that the
resource agencies' concerns were considered. Applicants are encouraged
to provide the Corps multiple copies of notifications to expedite
agency notification.
(f) Wetlands Delineations: Wetland delineations must be prepared in
accordance with the current method required by the Corps. For NWP 29
see paragraph (b)(6)(iii) for parcels less than 0.5 acres in size. The
permittee may ask the Corps to delineate the special aquatic site.
There may be some delay if the Corps does the delineation. Furthermore,
the 30-day period will not start until the wetland delineation has been
completed and submitted to the Corps, where appropriate.
(g) Mitigation: Factors that the District Engineer will consider
when determining the acceptability of appropriate and practicable
mitigation necessary to offset all impacts that are more than minimal
include, but are not limited to:
(i) To be practicable, the mitigation must be available and capable
of being done considering costs, existing technology, and logistics in
light of the overall project purposes;
(ii) To the extent appropriate, permittees should consider
mitigation banking and other forms of mitigation including
contributions to wetland trust funds, ``in lieu fees'' to non-profit
land restoration and stewardship organizations, State or county natural
resource management agencies, where such fees contribute to the
restoration, creation, replacement, enhancement, or preservation of
wetlands. Furthermore, examples of mitigation that may be appropriate
and practicable include but are not limited to: reducing the size of
the project; establishing wetland or upland buffer zones to protect
aquatic resource values; and replacing the loss of aquatic resource
values by creating, restoring, enhancing, or preserving similar
functions and values. In addition, mitigation must address wetland
impacts, such as functions and values, and cannot be simply used to
offset the acreage of wetland losses that would occur in order to meet
the acreage limits of some of the NWPs (e.g., for NWP 14, 0.5 acre of
wetlands cannot be created to change a 0.75-acre loss of wetlands to a
0.25 acre loss; however, 0.5 created acres can be used to reduce the
impacts of a 0.3-acre loss.).
14. Compliance Certification. Every permittee who has received a
Nationwide permit verification from the Corps will submit a signed
certification regarding the completed work and any required mitigation.
The certification will be forwarded by the Corps with the authorization
letter and will include: a. A statement that the authorized work was
done in accordance with the Corps authorization, including any general
or specific conditions; b. A statement that any required mitigation was
completed in accordance with the permit conditions; c. The signature of
the permittee certifying the completion of the work and mitigation.
15. Multiple Use of Nationwide Permits. In any case where any NWP
number 12 through 40 and any NWP A through F is combined with any other
NWP number 12 through 40 and NWP A through F, as part of a single and
complete project, the permittee must notify the District Engineer in
accordance with paragraphs a, b, and c of the ``Notification'' General
Condition number 13. Any NWP number 1 through 11 may be combined with
any other NWP without notification to the Corps, unless notification is
otherwise required by the terms of the NWPs. As provided at 33 CFR
330.6(c) two or more different NWPs can be combined to authorize a
single and complete project. However, the same NWP cannot be used more
than once for a single and complete project.
16. Subdivisions. Discharges in any real estate subdivision created
or subdivided after October 5, 1984, which would cause the aggregate
total loss of waters of the United States in said subdivision to exceed
3 acres under NWP A or 10 acres under NWP B, is not authorized by this
NWP unless the District Engineer exempts a particular subdivision or
parcel by making a
[[Page 36077]]
written determination that the individual and cumulative adverse
environmental effects would be minimal, high quality wetlands would not
be adversely affected, and there would be an overall benefit to the
aquatic environment. If an exemption is established for a subdivision,
subsequent development by individual property owners may proceed using
either NWP A or B, as appropriate. For purposes of this condition, the
term ``real estate subdivision'' shall be interpreted to include
circumstances where a landowner or developer divides a tract of land
into smaller parcels for the purpose of selling, conveying,
transferring, leasing, or developing said parcels. This would include
the entire area of a residential, commercial, or other real estate
subdivision, including all parcels and parts thereof.
17. Water Supply Intakes. No activity, including structures and
work in navigable waters of the United States or discharges of dredged
or fill material, may occur in the proximity of a public water supply
intake except where the activity is for repair of the public water
supply intake structures or adjacent bank stabilization.
18. Shellfish Production. No activity, including structures and
work in navigable waters of the United States or discharges of dredged
or fill material, may occur in areas of concentrated shellfish
production, unless the activity is directly related to a shellfish
harvesting activity authorized by NWP 4.
19. Suitable Material. No activity, including structures and work
in navigable waters of the United States or discharges of dredged or
fill material, may consist of unsuitable material (e.g., trash, debris,
car bodies, asphalt, etc.,) and material used for construction or
discharged must be free from toxic pollutants in toxic amounts (see
Section 307 of the Clean Water Act).
20. Mitigation. Activities, including structures and work in
navigable waters of the United States or discharges of dredged or fill
material into waters of the United States, must be minimized or avoided
to the maximum extent practicable at the project site (i.e., on-site).
Furthermore, the District Engineer will require restoration, creation,
enhancement, or preservation of other aquatic resources in order to
offset the authorized impacts, at least to the extent that adverse
environmental effects to the aquatic environment are minimal. An
important element of any mitigation plan for projects in or near
streams or other open waters is the requirement of vegetated buffers
(wetland, upland, or both) adjacent to the open water areas.
21. Spawning Areas. Activities, including structures and work in
navigable waters of the United States or discharges of dredged or fill
material, in spawning areas during spawning seasons must be avoided to
the maximum extent practicable. Activities that physically destroy
(e.g., excavate or fill) an important spawning area are not authorized.
22. Management of Water Flows: To the maximum extent practicable,
the project must be designed to maintain pre-construction downstream
flow conditions (e.g., location, capacity, and flow rates).
Furthermore, the project must not permanently restrict or impede the
passage of normal or expected high flows (unless the primary purpose of
the fill is to impound waters) and the structure or discharge of
dredged or fill material must withstand expected high flows. The
project must provide, to the maximum extent practicable, for retaining
excess flows from the site and for establishing flow rates from the
site similar to pre-construction conditions. To minimize downstream
impacts, such as flooding or erosion, and upstream impacts, such as
back-up flooding, the project must not, to the maximum extent
practicable, increase water flows from the site, relocate water, or
redirect flow beyond pre-construction conditions.
23. Adverse Effects from Impoundments. If the activity, including
structures and work in navigable waters of the United States or
discharge of dredged or fill material, creates an impoundment of water,
adverse effects on the aquatic system caused by the accelerated passage
of water and/or the restriction of its flow shall be minimized to the
maximum extent practicable.
24. Waterfowl Breeding Areas. Activities, including structures and
work in navigable waters of the United States or discharges of dredged
or fill material, into breeding areas for migratory waterfowl must be
avoided to the maximum extent practicable.
25. Removal of Temporary Fills. Any temporary fills must be removed
in their entirety and the affected areas returned to their preexisting
elevation.
D. Further Information
1. District engineers have authority to determine if an activity
complies with the terms and conditions of an NWP.
2. NWPs do not obviate the need to obtain other Federal, State, or
local permits, approvals, or authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of
others.
5. NWPs do not authorize interference with any existing or proposed
Federal project.
E. Definitions
1. Aquatic bench: Aquatic benches are those shallow areas around
the edge of a permanent pool stormwater management facility that
support aquatic vegetation, both submerged and emergent.
2. Best management practices: Best Management Practices (BMPs) are
policies, practices, procedures, or structures implemented to mitigate
the adverse impacts on surface water quality resulting from
development. BMPs are categorized as structural or non-structural. A
BMP policy may affect the limits on a development.
3. Channelized stream: A channelized stream is a stream that has
been manipulated to increase the rate of water flow through the stream
channel. Manipulation may include deepening, widening, straightening,
armoring, and other activities that change the stream cross-section and
other aspects of channel geometry in an effort to increase water
conveyance. A channelized stream remains a water of the United States
despite the alterations. For the purposes of the NWPs, a channelized
stream is not considered to be a drainage ditch.
4. Contiguous wetland: A contiguous wetland is a wetland that is
connected by surface waters to other waters of the United States. For
example, in tidal ecosystems, contiguous wetlands may be either tidal
or non-tidal. For the purposes of the NWPs, contiguous wetlands in
tidal ecosystems extend in the same direction as the ebb and flow of
the tide; wetlands that are upstream (i.e., either upstream on the main
tidal channel or upstream on any linear aquatic system with a defined
channel that enters the contiguous wetland) of tidal waters are not
considered to be contiguous. Contiguous wetlands in non-tidal systems
are normally contiguous to the nearest open water of the United States
and perpendicular to a tangent of the OHWM of that open water. Wetlands
contiguous with other waters of the United States are adjacent to those
waters, but wetlands adjacent to those waters are not necessarily
contiguous, as they may be separated from waters of the United States
by berms, levees, roads, etc.
5. Drainage ditch: A linear excavation or depression constructed
for the purpose of conveying surface runoff or groundwater from one
area to another. An ``upland drainage ditch'' is a
[[Page 36078]]
drainage ditch constructed entirely in uplands (i.e., not waters of the
United States) and is not a water of the United States, unless it
becomes tidal or otherwise extends the ordinary high water line of
existing waters of the United States. Drainage ditches constructed in
waters of the United States (e.g., by excavating wetlands) remain
waters of the United States even though they are heavily manipulated to
increase drainage. The term ``drainage ditch'' does not include
channelized streams. A drainage ditch may be constructed in uplands or
wetlands.
6. Ephemeral stream: An ephemeral stream has flowing water only
during, and for a short duration after, storm events in a typical year.
Ephemeral stream beds are located above the water table year-round.
Groundwater is not a source of water for the stream. Runoff from
rainfall is the primary source of water for stream flow.
7. Farm: A land unit under one ownership operated as a farm as
reported to the Internal Revenue Service.
8. Intermittent stream: An intermittent stream has flowing water
during certain times of the year. When the stream bed is located below
the water table, groundwater is the primary source of water for stream
flow. During dry periods, intermittent streams may not have flowing
water. Runoff from rainfall is a supplemental source of water for
stream flow.
9. Loss of waters of the United States: Waters of the United States
that include the filled area and other waters that are adversely
affected by flooding, excavation, or drainage as a result of the
regulated activity. The acreage of loss of waters of the United States
is the threshold measurement of the impact to existing waters for
determining whether a project may qualify for an NWP; it is not a net
threshold that is calculated after considering compensatory mitigation
that may be used to offset losses of aquatic functions and values. The
loss of stream bed includes the linear feet of stream that is filled or
excavated.
10. Noncontiguous wetland: A noncontiguous wetland is a wetland
that is not connected by surface waters to other waters of the United
States, or is part of a linear aquatic system with a defined channel to
the otherwise contiguous wetland. Noncontiguous wetlands may be
adjacent to other waters of the United States, but a direct connection
to other waters of the United States is lacking. For example, a
depressional wetland located on a floodplain that is separated by a
narrow band of uplands from the river is a noncontiguous wetland, but
still adjacent to that river due to periodic overbank flooding that is
a source of hydrology for that wetland. Noncontiguous wetlands also
include those wetlands that are tributary to the contiguous wetland or
its open water area, where the tributary has a defined channel for
water flow.
11. Non-tidal wetland: A non-tidal wetland is a wetland (i.e., a
water of the United States) that is not subject to the ebb and flow of
tidal waters. The definition of a wetland can be found at 33 CFR
328.3(b). Non-tidal wetlands contiguous to tidal waters are located
landward of the high tide line (i.e., spring high tide line).
12. Perennial stream: A perennial stream has flowing water year-
round during a typical year. The stream bed is located below the water
table for most of the year. Groundwater is the primary source of water
for stream flow. Runoff from rainfall is a supplemental source of water
for stream flow.
13. Riffle and pool complex: Riffle and pool complexes typically
occur in steep gradient sections of perennial streams and consist of
alternating stream segments characterized by: 1) the rapid of movement
of water over a coarse substrate (e.g., gravel or cobble) with shallow
water and 2) the slower movement of water over a finer substrate (e.g.,
sand or silt) with deeper water.
14. Stormwater management: Stormwater management is the mechanism
for controlling stormwater runoff for the purposes of reducing
downstream erosion, water quality degradation, and flooding and
mitigating the negative impacts of urbanization.
15. Stormwater management facilities: Stormwater management
facilities are those facilities, including but not limited to,
stormwater retention and detention ponds and BMPs, which retain water
for a period of time to control runoff and/or improve the quality
(i.e., by reducing the concentration of nutrients, sediments, hazardous
substances and other pollutants) of stormwater runoff.
16. Tidal wetland: A tidal wetland is a wetland (i.e., a water of
the United States) that is inundated by tidal waters. The definitions
of a wetland and tidal waters can be found at 33 CFR 328.3(b) and 33
CFR 328.3(f), respectively. Tidal waters rise and fall in a predictable
and measurable rhythm or cycle due to the gravitational pulls of the
moon and sun. Tidal waters end where the rise and fall of the water
surface can no longer be practically measured in a predictable rhythm
due to masking by other waters, wind, or other effects. Tidal wetlands
are located channelward of the high tide line (i.e., spring high tide
line) and are inundated by tidal waters at least two times per month,
during spring high tides.
17. Vegetated shallows: Vegetated shallows are special aquatic
sites under the 404(b)(1) Guidelines. They are areas that are
permanently inundated and under normal circumstances have rooted
aquatic vegetation, such as seagrasses in marine and estuarine systems
and a variety of vascular rooted plants in freshwater systems.
18. Waterbody: A waterbody is any area that in a normal year has
water flowing or standing above ground to the extent that evidence of
an ordinary high water mark is established.
[FR Doc. 98-17399 Filed 6-30-98; 8:45 am]
BILLING CODE 3710-92-P