[Federal Register Volume 69, Number 229 (Tuesday, November 30, 2004)]
[Proposed Rules]
[Pages 69563-69567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26263]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 330
RIN 0710-AA60
Nationwide Permit Program
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Proposed rule.
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SUMMARY: The U.S. Army Corps of Engineers is proposing to amend its
nationwide permit regulations. We are proposing to modify the
nationwide permit regulations so that district engineers can issue
nationwide permit verification letters that expire on the same date the
nationwide permit expires. This amendment will allow district engineers
to issue that nationwide permit verifications are valid throughout the
period of time the nationwide permit is in effect, to provide
regulatory flexibility and efficiency. We are also proposing to
increase the 30-day pre-construction notification review period to 45
days, to conform with nationwide permit general condition 13. Since the
nationwide permit regulations were last amended in 1991, there have
been changes to related
[[Page 69564]]
regulations and policies that have generally increased the complexity
of reviews of nationwide permit pre-construction notifications. The 45-
day pre-construction notification review period will provide district
engineers with time to effectively review proposed nationwide permit
activities that require notification, as well as compensatory
mitigation proposals, to determine whether those activities meet the
terms and conditions of the nationwide permits and result in minimal
adverse environmental effects.
DATES: Submit comments on or before January 31, 2005.
ADDRESSES: Written comments should be sent to the U.S. Army Corps of
Engineers, Attn: CECW-MVD (David B. Olson), 441 G Street NW.,
Washington, DC 20314-1000, or by e-mail to
[email protected]. Electronic comments should be
submitted in ASCII format or portable document format to ensure that
those comments can be read. Electronic files should avoid the use of
special characters and any form of encryption, and be free of any
defects or viruses. Consideration will be given to all comments
received within 60 days of the date of publication of this notice.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or
access the U.S. Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/ reg/.
SUPPLEMENTARY INFORMATION:
Background
On November 22, 1991, (56 FR 59110) the U.S. Army Corps of
Engineers Corps) revised 33 CFR part 330, the regulations for
implementing its nationwide permit (NWP) program. Section
330.6(a)(3)(ii) of this regulation states that NWP verification letters
can be valid for no more than two years. Section 330.1(e) provides
district engineers with 30 days to review notifications to determine
whether proposed NWP activities are in the public interest and result
in minimal individual and cumulative adverse environmental effects.
Since 1991, there have been substantial changes to the NWP program that
warrant amendments to these provisions.
We are proposing to amend Sec. 330.6(a)(3)(ii) to allow district
engineers to issue NWP verification letters that expire on the same
date the NWP expires. An NWP verification letter provides confirmation
that a particular activity is authorized by NWP. This amendment will
help promote administrative efficiency by eliminating the two year
limit for NWP verification letters, so that it will not be necessary
for district engineers to reverify an NWP authorization when the
permittee has not completed the authorized work within two years. In
many cases, a project proponent must obtain state and local
authorizations before proceeding with a project. That process can take
more than two years. We believe the flexibility and efficiency of the
NWP Program would be improved if this regulation is modified to allow
district engineers to issue NWP verification letters that expire at the
same time the NWP expires. This will allow the NWP program to
accommodate state and local planning and regulatory processes, without
diminishing protection of the aquatic environment.
The two year limit for verification letters was intended to allow
for adjustments or clarifications of jurisdiction, policy, and
procedure. It has been our experience that we seldom need to change NWP
verification letters between the date the verification letter is issued
and the expiration date of the NWP. If such changes are necessary,
district engineers may use the procedures at Sec. 330.5(d) to modify,
suspend, or revoke a case-specific NWP authorization. In most cases,
the five year time limit for NWPs is adequate for accounting for
changes in jurisdiction, policy, and procedure. District engineers will
have the option of issuing NWP verification letters for shorter time
periods, to address concerns for the aquatic environment or other
public interest review factors.
We are also proposing to amend the NWP regulations to increase the
pre-construction notification (PCN) review period from 30 days to 45
days. The purpose of the PCN review period, and the de facto
authorization that results if the district engineer does not respond to
a PCN during that review period, is to provide some regulatory
certainty to the public by requiring district engineers to respond to
NWP PCNs in a timely manner.
When we reissued NWP 26 on December 13, 1996, (61 FR 65874) we
increased the PCN review period for proposed NWP 26 activities
resulting in the loss of greater than one-third acre of waters of the
United States from 30 days to 45 days. When we issued five new and six
modified NWPs to replace NWP 26 on March 9, 2000, (65 FR 12818) we
increased the review period for all proposed NWP activities that
require PCNs to 45 days. The 45-day PCN review period was retained in
the January 15, 2002, reissuance of the NWPs (67 FR 2020).
Since 1991, there have been new and modified Federal regulations
that have affected the implementation of the NWP program, and increased
the amount of time required to review PCNs. For example, the National
Marine Fisheries Service (NMFS) issued regulations for implementing the
Essential Fish Habitat (EFH) provisions of the Magnuson-Stevens Fishery
Conservation and Management Act that require consultation for
activities that may adversely affect EFH. Current regulations for
implementing the EFH provisions require Federal agencies to provide
NMFS 30 days to respond to EFH Assessments (see 50 CFR 600.920).
There have also been changes to the Regulatory Program's
compensatory mitigation policies, such as the issuance of Regulatory
Guidance Letter 02-02 on December 24, 2002, and the issuance of
Mitigation Action Plan items. Compensatory mitigation proposals can be
complex documents that require technical review to determine whether
the proposed compensatory mitigation projects are feasible and will
effectively offset authorized losses of aquatic resources.
Prior to issuing NWP verification letters, district engineers
review compensatory mitigation proposals to determine whether the
proposed compensatory mitigation is sufficient to ensure that the
authorized work will result in minimal individual and cumulative
adverse effects on the aquatic environment and other public interest
factors. The 45-day review period would provide district engineers with
time to effectively review compensatory mitigation proposals submitted
with PCNs.
Amending the NWP regulations by increasing the 30-day PCN review
period to 45 days will not adversely affect processing times for NWP
verification requests. As discussed above, the 45-day PCN review period
was adopted in 1996 for NWP 26, and was applied to all NWPs requiring
PCNs in 2000. In FY 2003, the average processing time for an NWP
verification request was 27 days. We believe that the average
processing times for NWP verification requests will continue to be less
than 30 days if the proposed rule change is adopted since the proposed
modification reflects current NWP PCN processing practices.
We are also proposing to amend Sec. Sec. 330.4(c)(6) and
330.4(d)(6) by replacing the 30-day review period with the proposed 45-
day review period and replacing the term ``pre-discharge notification''
with ``pre-construction notification'' to be consistent with current
terminology used in the NWP
[[Page 69565]]
program. The term ``pre-construction notification'' is more
appropriate, since nationwide permits may authorize, in addition to
discharges of dredged or fill material into waters of the United
States, construction activities in navigable waters of the United
States.
Administrative Requirements
Plain Language
In compliance with the principles in the President's Memorandum of
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is
written using plain language. The use of ``we'' in this notice refers
to the Corps. We have also used the active voice, short sentences, and
common everyday terms except for necessary technical terms.
Paperwork Reduction Act
This proposed action will not impose any new information collection
burden under the provisions of the Paperwork Production Act (44 U.S.C.
3501 et seq.). For NWPs that require PCNs, the proposed modification
changes the 30-day review period to a 45-day review period. In
addition, the proposed rule changes the length of time an NWP
verification letter could be valid.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to, or for, a Federal agency. This includes the
time needed to review instructions; develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; adjust the
existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
For the Corps Regulatory Program under Section 10 of the Rivers and
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the
current OMB approval number for information collection requirements is
maintained by the Corps of Engineers (OMB approval number 0710-0003,
which expires December 31, 2004). Since the proposed rule does not
involve any additional collection of information from the public, this
action is not subject to the Paperwork Reduction Act.
Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Corps must determine whether the regulatory action is ``significant''
and therefore subject to review by OMB and the requirements of the
Executive Order. The Executive Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, we have determined
that the proposed rule is not a ``significant regulatory action''
because it does not meet any of these four criteria. The proposed rule
is a modification of existing procedures. For NWPs that require PCNs,
the proposed rule increases the 30-day review period to 45 days. In
addition, the proposed rule changes the length of time an NWP
verification letter could be valid.
Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the Corps to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have Federalism
implications.'' The phrase ``policies that have Federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.''
The proposed rule does not have Federalism implications. We do not
believe that amending the regulation to increase the NWP PCN review
period or increase the length of time an NWP verification letter may be
valid will have substantial direct effects on the States, on the
relationship between the Federal government and the States, or on the
distribution of power and responsibilities among the various levels of
government. The proposed rule does not impose new substantive
requirements. In addition, the proposed changes will not impose any
additional substantive obligations on State or local governments.
Therefore, Executive Order 13132 does not apply to this proposed rule.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations and small governmental jurisdictions.
For purposes of assessing the impacts of this proposed rule on
small entities, a small entity is defined as : (1) A small business
based on Small Business Administration size standards; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; or (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of the proposed rule on
small entities, we believe that this action will not have a significant
economic impact on a substantial number of small entities. The proposed
rule is consistent with current agency practice, does not impose new
substantive requirements, and therefore would not have a significant
economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under Section 202 of the UMRA, the
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final
[[Page 69566]]
rules with ``Federal mandates'' that may result in expenditures to
State, local, and Tribal governments, in the aggregate, or to the
private sector, of $100 million or more in any one year. Before
promulgating a rule for which a written statement is needed, Section
205 of the UMRA generally requires the agencies to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows an agency to adopt an alternative other than the
least costly, most cost-effective, or least burdensome alternative if
the agency publishes with the final rule an explanation why that
alternative was not adopted. Before an agency establishes any
regulatory requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed,
under Section 203 of the UMRA, a small government agency plan. The plan
must provide for notifying potentially affected small governments,
enabling officials of affected small governments to have meaningful and
timely input in the development of regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
We have determined that the proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal governments, in the aggregate, or the
private sector in any one year. The proposed rule is consistent with
current agency practice, does not impose new substantive requirements
and therefore does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and Tribal
governments, in the aggregate, or the private sector in any one year.
Therefore, the proposed rule is not subject to the requirements of
Sections 202 and 205 of the UMRA. For the same reasons, we have
determined that the proposed rule contains no regulatory requirements
that might significantly or uniquely affect small governments.
Therefore, the proposed rule is not subject to the requirements of
Section 203 of UMRA.
Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that we have reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, we must evaluate the environmental health or
safety effects of the proposed rule on children, and explain why the
regulation is preferable to other potentially effective and reasonably
feasible alternatives.
The proposed rule is not subject to this Executive Order because it
is not economically significant as defined in Executive Order 12866. In
addition, it does not concern an environmental or safety risk that we
have reason to believe may have a disproportionate effect on children.
Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires agencies to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' The phrase
``policies that have tribal implications'' is defined in the Executive
Order to include regulations that have ``substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
government and the Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes.''
The proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes. It is generally consistent with current
agency practice and does not impose new substantive requirements.
Therefore, Executive Order 13175 does not apply to this proposed rule.
Environmental Documentation
The Corps prepares appropriate environmental documentation,
including Environmental Impact Statements when required, for all permit
decisions. Therefore, environmental documentation under the National
Environmental Policy Act is not required for this proposed rule.
Appropriate environmental documentation has been prepared for each NWP.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. We will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. The proposed rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
Executive Order 12898
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each Federal agency conduct its programs, policies,
and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
The proposed rule is not expected to negatively impact any
community, and therefore is not expected to cause any
disproportionately high and adverse impacts to minority or low-income
communities.
Executive Order 13211
The proposed rule is not a ``significant energy action'' as defined
in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. The
proposed rule updates regulations for implementing the Nationwide
Permit Program. The proposed rule is consistent with current agency
practice, does not impose new substantive requirements and therefore
will not have a significant adverse effect on the supply, distribution,
or use of energy.
[[Page 69567]]
List of Subjects in 33 CFR Part 330
Administrative practice and procedure, Intergovernmental relations,
Navigation (water), Water pollution control, Waterways.
Dated: November 23, 2004.
Don T. Riley,
Major General, U.S. Army, Director of Civil Works.
For the reasons stated in the preamble, the Corps proposes to amend
33 CFR part 330 as follows:
PART 330--NATIONWIDE PERMIT PROGRAM
1. The authority citation for part 330 continues to read as
follows:
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C.
1413.
2. Amend Sec. 330.1 by revising paragraph (e)(1) to read as
follows:
Sec. 330.1 Purpose and policy.
* * * * *
(e) * * * (1) In most cases, permittees may proceed with activities
authorized by NWPs without notifying the DE. However, the prospective
permittee should carefully review the language of the NWP to ascertain
whether he must notify the DE prior to commencing the authorized
activity. For NWPs requiring advance notification, such notification
must be made in writing as early as possible prior to commencing the
proposed activity. The permittee may presume that his project qualifies
for the NWP unless he is otherwise notified by the DE within a 45-day
period. The 45-day period starts on the date of receipt of the
notification in the Corps district office and ends 45 calendar days
later regardless of weekends or holidays. If the DE notifies the
prospective permittee that the notification is incomplete, a new 45-day
period will commence upon receipt of the revised notification. The
prospective permittee may not proceed with the proposed activity before
expiration of the 45-day period unless otherwise notified by the DE. If
the DE fails to act within the 45-day period, he must use the
procedures of 33 CFR 330.5 in order to modify, suspend, or revoke the
NWP authorization.
* * * * *
3. Amend Sec. 330.4 by revising paragraphs (c)(6) and (d)(6) to
read as follows:
Sec. 330.4 Conditions, limitations, and restrictions.
* * * * *
(c) * * *
(6) In instances where a state has denied the 401 water quality
certification for discharges under a particular NWP, permittees must
furnish the DE with an individual 401 water quality certification or a
copy of the application to the state for such certification. For NWPs
for which a state has denied the 401 water quality certification, the
DE will determine a reasonable period of time after receipt of the
request for an activity-specific 401 water quality certification
(generally 60 days), upon the expiration of which the DE will presume
state waiver of the certification for the individual activity covered
by the NWPs. However, the DE and the state may negotiate for additional
time for the 401 water quality certification, but in no event shall the
period exceed one (1) year (see 33 CFR 325.2(b)(1)(ii)). Upon receipt
of an individual 401 water quality certification, or if the prospective
permittee demonstrates to the DE state waiver of such certification,
the proposed work can be authorized under the NWP. For NWPs requiring a
45-day pre-construction notification the district engineer will
immediately begin, and complete, his review prior to the state action
on the individual section 401 water quality certification. If a state
issues a conditioned individual 401 water quality certification for an
individual activity, the DE will include those conditions as activity-
specific conditions of the NWP.
* * * * *
(d) * * *
(6) In instances where a state has disagreed with the Corps
consistency determination for activities under a particular NWP,
permittees must furnish the DE with an individual consistency
concurrence or a copy of the consistency certification provided to the
state for concurrence. If a state fails to act on a permittee's
consistency certification within six months after receipt by the state,
concurrence will be presumed. Upon receipt of an individual consistency
concurrence or upon presumed consistency, the proposed work is
authorized if it complies with all terms and conditions of the NWP. For
NWPs requiring a 45-day pre-construction notification the DE will
immediately begin, and may complete, his review prior to the state
action on the individual consistency certification. If a state
indicates that individual conditions are necessary for consistency with
the state's Federally-approved coastal management program for that
individual activity, the DE will include those conditions as activity-
specific conditions of the NWP unless he determines that such
conditions do not comply with the provisions of 33 CFR 325.4. In the
latter case the DE will consider the conditioned concurrence as a non-
concurrence unless the permittee chooses to comply voluntarily with all
the conditions in the conditioned concurrence.
* * * * *
4. Amend Sec. 330.6 by revising paragraph (a)(3)(ii) to read as
follows:
Sec. 330.6 Authorization by nationwide permit.
(a) * * *
(3) * * *
(ii) The DE's response will state that the verification is valid
for a specific period of time (generally until the expiration date of
the NWP ) unless the NWP authorization is modified, suspended, or
revoked. The response should also include a statement that the
verification will remain valid for the specified period of time, if
during that time period, the NWP authorization is reissued without
modification or the activity complies with any subsequent modification
of the NWP authorization. Furthermore, the response should include a
statement that the provisions of Sec. 330.6(b) will apply, if during
that period of time, the NWP authorization expires, or is suspended or
revoked, or is modified, such that the activity would no longer comply
with the terms and conditions of an NWP.
Finally, the response should include any known expiration date that
would occur during the specified period of time. A period of time less
than the amount of time remaining until the expiration date of the NWP
may be used if deemed appropriate.
* * * * *
[FR Doc. 04-26263 Filed 11-29-04; 8:45 am]
BILLING CODE 3710-92-P